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Abstract: The distinction between civil and criminal sanctions carries important consequences for civil rights law. Many of the enhanced procedural protections available to criminal defendants, such as a heightened burden of proof, protections against double jeopardy and ex post facto laws, and the privilege against self-incrimination, hinge on whether a sanction is considered criminal or political. The Supreme Court's current approach is the product of centuries of self-contradiction and circular reasoning, resulting in a doctrine that now defers to state and federal legislatures on whether constitutional rights should apply, unless the court is satisfied that the sanction meets an a priori definition of criminal that the Court has never adequately justified. The article proposes a new distinction between civil and criminal sanctions for constitutional purposes known as the "Systemic Social Effect Theory" and justifies the test on a constitutional policy founded on political ethics.
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