What is punishment Criminal Law ?

What is punishment?

Kennedy v. Mendoza Martinez (1963): To determine whether a nominally civil measure is really punishment and thus whether criminal law safeguards apply courts must consider: “whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter (intent/culpability to commit a crime), whether its operation will promote the traditional aims of punishment- retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.”

·         One key distinction between civil and criminal: paradigmatically the criminal justice system is backward looking – it punishes for what has been done. Civil punishment is forward looking because it fears that that individual will inflict harm in the future.

·         Criminal punishment includes a conviction, social stigma

·         Crim has greater safeguards, higher burden of proof

·         When one is detained civilly there is not necessarily a fixed term, it’s regulation not punishment (like committing mentally ill)

·         E.g. Sexually violent predator laws -- > lower burden of proof/less formal requirements