In theory, the law of sanctioning has long distinguished between "punitive sanctions" and "civil remedies." While the former were meant to punish, the latter were designed to make injured persons whole. This bifurcated view of the purposes of sanctions (or remedies) has constituted a fundamental difference between criminal law and civil law. However, it does not accurately reflect the existing array of sanctions and remedies. Many sanctions, whether imposed by courts or administrative agencies, are a mixed nature. Recent years have witnessed a rapid growth of these mixed sanctions, which use civil procedures to mete out punishment. The increase in so-called punitive civil sanctions has gradually created a large middleground of sanctions between the criminal and the civil law. For many years, courts have employed legal fictions to avoid defining the middleground as a separate field of sanctioning laws. They thus avoided confronting basic assumptions about the role of procedure in a legal regime that highly values strict procedural protections when the state metes out punishment. This Article calls for a revision of the manner in which we currently categorize the law of sanctions and remedies. It argues that the two paradigms of civil and criminal law should be replaced with a tripartite concept of sanctioning laws that distinguishes between criminal, punitive civil, and remedial sanctions. This revised jurisprudence of sanctions could serve as a means to enlarge the role of punitive civil sanctions. In addition, it could help establish a distinctive procedural form for the middleground, which the author considers necessary for the continued as well as increased use of punitive civil sanctions.
