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85 UMKC L. Rev. 311 (2016-2017)
The Quasi-Criminality Revolution

handle is hein.journals/umkc85 and id is 327 raw text is: THE QUASI-CRIMINALITY REVOLUTION John Kip Cornwella Abstract This Article explores the increasing importance of quasi-criminal proceedings in the legal landscape and posits that it is no longer inaccurate to perceive our legal system as divided simply into civil and criminal branches. The rise of quasi-criminality has in essence created a hidden third tier that borrows, in diverse ways, from the other two to address a variety of social ills, both perceived and actual. Part One examines the historical bases identified by the U.S. Supreme Court for designating a proceeding quasi-criminal: the co- existence of criminal charges based on the same conduct, exemplified most powerfully by forfeiture actions; and the significant loss of liberty, often coupled with stigmatic harm. Part Two discusses the contemporary expansion of quasi- criminality beyond traditional formulations in three contexts: the civil commitment of sexual predators; sex offender residency restrictions; and the detention and expulsion of noncitizens who are lawful permanent residents. Part Three concludes by discussing how the modern, quasi-criminal landscape reflects a broader control culture that has fostered a return to an outsider jurisprudence directed at those believed to be incapable and unworthy of assimilation. I. INTRODUCTION From students' first days of law school, they learn about the distinction between civil and criminal law. Criminal law, it is said, addresses offenses against the public order or the people as a whole.i Prosecutors, representing the people, endeavor to punish the wrongdoers who often face the loss of their liberty, sometimes for long periods of time. Due to the potential severity of this sanction, criminal defendants receive a host of procedural protections during adversarial proceedings adjudicating their guilt or innocence, including, inter alia: proof beyond a reasonable doubt;2 the right to counsel at all critical stages of the prosecution' and during all custodial interrogation by law enforcement;' the right to trial by jury, where the maximum authorized sentence a Professor of Law, Seton Hall University School of Law. I would like to thank Farrin Anello and Alice Ristroph for their insight and Jackie Lyons for her excellent research assistance. See STEPHEN A. SALTZBERG ET AL., CRIMINAL LAW CASES AND MATERIALS 18-19 (3d. ed. 2008). 2 In re Winship, 397 U.S. 358, 362 (1970). See generally Rothgery v. Gillespie, 554 U.S. 191, 211-12 (2008) (discussing what makes a criminal proceeding a critical stage for purposes of the Sixth Amendment right to counsel). U.S. Supreme Court has recognized a number of critical stages, including: arraignment, Hamilton v. Alabama, 368 U.S. 52 (1961); preliminary hearings to determine probable cause to prosecute, Coleman v. Alabama, 399 U.S. 1 (1970); interrogations and lineups conducted after the filing of formal charges, Massiah v. United States, 377 U.S. 201 (1964), United States v. Wade, 388 U.S. 218 (1967); and sentencing, Townsend v. Burke, 334 U.S. 736 (1948). 4 See generally Miranda v. Arizona, 384 U.S. 436 (1966) (requiring recitation of the core constitutional rights to silence and counsel incident to custodial interrogation).

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