Criminal Violations and Civil Violations

Abstract

THE legal treatment of civil cases differs from that of criminal cases in a number of regards. In particular, the probability of the defense losing in civil procedure is typically higher than in criminal procedure. On the other hand, the penalty in a civil case is seldom much greater than the gains to the violator, whereas the penalty for a crime will often be much greater than the gains, providing it is possible to assess such large penalties. For criminal conduct, the standard of proof required for conviction must be beyond a reasonable doubt, while in civil cases preponderance of the evidence suffices. This means that the trier of fact must be much more certain of guilt in order to convict someone of a criminal act than of a civil wrong. While there is nowhere in the literature a complete explanation of these observed differences, there have been some partial discussions. Becker argues that criminals act as risk preferrers.1 However, his analysis indicates that low probabilities of conviction and high fines will best deter risk-averting behavior, whereas risk-preferring behavior calls for higher probabilities and lower fines.2 It seems plausible to assume that criminals act as risk seekers, while civil violators act as risk averters. Assuming the law to be rational,3 it then follows that Becker's results contradict the previous observation that actual criminal punishment occurs with lower