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26 Ann. Rev. Crim. Proc. 775 (1997)
Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide

handle is hein.journals/anrvcpr26 and id is 13 raw text is: FOREWORD Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide CAROL S. STEIKER* TABLE OF CONTENTS I. INM ODUCTION ...................................... 775 I. THE DESTABILIZATION OF THE CRmNAL-CIVIL DISTINCTION .... 782 A. INTELLECTUAL CHALLENGES ......................... 784 B. INSTITUTIONAL CHALLENGES ........................ 791 c. SOCIO-CULTURAL CHALLENGES ....................... 794 1H. PUNISHMENT THEORY AND THE DISTINCTIVE ROLE OF CRIMINAL PROCEDURE ........................................ 797 A. PUNISHMENT AS BLAMING .......................... 800 B. BLAMING AND CRIMINAL PROCEDURE .................. 806 IV. WHAT QUESTIONS DOES DEFINING STATE PUNISHMENT ANSWER? .......................................... 809 V. PUNISHMENT THEORY APPLIED .......................... 814 I. INTRODUCTION Two recent cases before the U.S. Supreme Court present interesting but, at first glance, apparently unrelated (or only superficially related) problems in constitutional law. Last Term, in United States v. Ursery, the Supreme Court considered whether the Fifth Amendment's prohibition of double jeopardy precluded the federal government from bringing parallel criminal actions and civil forfeiture proceedings based upon the same underlying events. In one of the two cases joined for review, a defendant challenged his * Assistant Professor, Harvard Law School. B.A. 1982, Harvard-Radcliffe Colleges; J.D. 1986, Harvard Law School. I thank Amanda Frost, Susan Klein, Stephen Schulhofer, Michael Seidman, Jordan Steiker, and William Stuntz for helpful comments on earlier drafts of this paper; partici- pants in workshops at Harvard Law School, Harvard University's Program in Ethics and the Professions, and the University of Virginia School of Law for reactions to presentations of this paper; and Sharon Dolovich, Amanda Frost, Samuel Kaplan, and Alexi Lahav for excellent research assistance. 1. 116 S. Ct. 2135 (1996).

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