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INTRODUCTION
There are few distinctions in Anglo-American jurisprudence more fundamental and consequential than that between the civil law and the criminal law. Law school courses, textbooks, hornbooks, and treatises divide the legal universe neatly into criminal law on one hand and various categories of civil law on the other-property, torts, family law, contracts, and so forth. State bar organizations typically set up administrative divisions along the same lines, and the practices of the great majority of lawyers who comprise them specialize either in criminal law or civil law (or some subfield within one or the other), virtually never venturing across the invisible line that separates the two categories. The U.S. Department of Justice and state attorney general offices are similarly divided into separate civil and criminal divisions.1 Federal and state courts propound separate procedural rules for civil and criminal trials,2 and even the judges themselves may be assigned to civil or criminal departments, so that judges, like the lawyers before them, may specialize either in criminal law or in civil law.3 Most fundamentally, several important procedural protections of the federal Constitution either explicitly apply in criminal cases only or have been judicially interpreted to apply exclusively to such cases.
The distinction between civil law and criminal law also carries weight outside the world of lawyers, courts, and theories of jurisprudence. Adverse civil and criminal judgments can deprive defendants of valued liberties and property, but a criminal conviction-or even a mere indictment-may impose a social stigma that permanently impairs the defendant's quality of life in a manner rarely equaled by a civil judgment.4 A felony criminal conviction may, moreover, disqualify the convict from voting, not only while serving the sentence, but also permanently in some states.5 Potential employers in all walks of life, when considering whom to hire, typically research the criminal background of a job applicant but virtually never ask whether he or she has been subjected to a civil summons, injunction, or judgment. Beyond these concrete effects, a criminal conviction may result in the disintegration of social and familial support and may impose psychological burdens on the convict, degrading his or her self-conception in a way no adverse civil award could.
To the discredit of the juristic and legislative professions, the centrality of the...