a subsequent civil trial found him responsible for two violentrndeaths and, therefore, liable to pay tens of millions of dollars.rnWhile not subjecting him to lifetime imprisonment, at least therncivil verdict promised to cripple him financially; justice, itrnseemed, was served. But was it? Were it not for the fact that thernsecond trial was labeled civil, with a different prevailing standardrnof evidence and proof, who but a lawyer would den’ thatrnSimpson was subjected to double jeopardy, to two trials for thernsame offense, in exactly the same way as the assailants of RodneyrnKing? And whereas a criminal trial demands proof of guiltrnbevond a reasonable doubt (say, the support of 98 percent of thernavailable evidence), a civil suit requires onlv a preponderancernof evidence (51 percent). One way or another, the prosecutionrnwill get you, by fair means or foul.rnThe same mixture of civil and criminal process is found inrnrecent sexual-predator legislation in many Americanrnstates. Under these statutes, a sex offender is sentenced to prisonrnfor a set term, and, as the time of release approaches, is subjectedrnto a new hearing at which he can be adjudged a “sexualrnpredator” who might endanger the public in the future. He isrnthereupon committed civilly to a special institution for an indefiniternterm, perhaps lifelong. The evidence in this second,rn”civil” encounter basically recapitulates that from the originalrntrial, but once again, the fact that it bears the charmed titie ofrn”ci’il procedure” immunizes it against double-jeopardy protections.rnHovever difficult it is to mobilize public sympathy in favorrnof O.J. Simpson, much less a repeat sex offender, we shouldrnbe thoroughly alarmed at the idea that a formal trial with thernpower to inflict life-destroying penalties should be immunernfrom conventional legal restraints solely because it is termedrn”civil litigation.”rnThe use of a wrongfrd death suit in the Simpson case also illustratesrnthe use of litigation to achieve goals which seem beyondrnthe reach of the criminal process. Here again, we are dealingrnwith the legacv of the civil-rights movement, whichrntransformed attitudes toward the role of courts and law and promotedrnthe view that civil litigation could be a healthy and sociallyrndesirable means of redressing injustice. “Litigating forrnrights” was appropriate when cases were fought on behalf ofrnclasses of unrepresented victims opposing powerful corporationsrnor institutions. Particularly since the “litigation revolution”rnof the late 1970’s, the urge to hit hard at unpopular or indefensiblernconduct has repeatedly encouraged legislatures tornincorporate civil penalties into criminal laws, so that perpetratorsrncan be both prosecuted and sued. The classic modern examplernof this is the 1994 federal Violence Against Women Act,rnbut the same idea is also found in more recent hate-crimernstatutes. Both measures feature civil processes because such actionsrnare easier to prosecute successfully than their criminalrncounterparts, while the prospect of financial remedies serves tornencourage litigants. Although “fomenting litigation” was one ofrnthe worst professional breaches with which a lawyer could berncharged, the active encouragement of speculative and evenrnbuccaneering lawsuits is now official federal policy.rnTo take another current example, no government wouldrndare pass a law explicitly stating that the sale or manufacture ofrntobacco was a criminal offense and, moreover, apply the lawrnretroactively to those who had engaged in these activities 20 orrn30 years ago. The verv notion is abhorrent and woidd not endurernfor a minute before an appeals court: The criminal law hasrnclear and known principles which such a measure would violate.rnYet what would not be attempted on the floor of the legislaturerncan be achieved with remarkable ease in the courts, givenrnsufficient public outrage against anv supposed malefactors ofrngreat wealth. The recent lawsuits against the tobacco industrs’,rnand the subsequent multi-billion-dollar “settlement” extortedrnfrom those particular pigeons, have inflicted gigantic quasicriminalrnpenalties on the basis of ex post facto law, funded onrnthe palpable fiction that individuals who smoked cigarettes inrnthe l960’s and 1970’s were unaware of the health consequencesrnto which they were subjecting themselves. (Did they live onrndesert islands?)rnWhatever happened to the idea of punishment being “legallyrninflicted in virtue of a law passed and promulgated before therncommission of the offense,” as Lafayette and Jefferson phrasedrnit in the French Declaration of the Rights of Man? Ah, but thernpavments in the tobacco cases are neither punishments in general,rnnor fines in particular: They are merely a civil settlementrnagreed at quite voluntarily (or so runs the legalspeak). Civilrnsuits thus offer the potential to sidestep Are criminal process altogether,rnto effect far-reaching social change without having torndeal with the protections available to criminal suspects and defendants.rnWorse, the abuse of civil litigation is a cumulativernprocess, as the vast successes enjoyed in one field of legal endeavorrnare bound to be imitated in other areas, and as futurerncorporate “perpetrators” recognize the expediency of settiingrnrather than fighting to the last ditch. Tobacco, guns, thenrnliquor, coffee, and presumably red meat: If the sequencernsounds alarmist right now, just wait five or ten )ears.rnIn a very few years, we have all but lost the presumption of innocence,rnas well as our protection against double jeopardy andrnex post facto laws, which frankly does not leave much of our theoreticalrnrights. If we have any hope of preventiyig further erosion,rnor even of beginning the long climb back to a just societ)’,rnwe need to be extraordinarily vigilant and hostile to any furtherrnenhancements of official power. And whenever an administrationrnproposes any extraordinar)’ or draconian legal principle, itrnalways helps to remember a basic rule: today, the drug dealer orrnterrorist; tomorrow, the rest of us. crnTlie Abyssrnby Timothy MurphyrnHis subterfuge is deeprnand devious is his taskrnbut the man behind the maskrnI take off when I sleeprnis the one friend I can askrnto look before I leap.rnlULY 1999/15rnrnrn