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Lesson: ” Kennedy 7″ Criteria ( Punitive vs. Civil )

November 5, 2009

In the Ohio Supreme Court Oral Argument videos below, you will hear reference to the “Kennedy 7” criteria. This legal reference is the accepted standard in determining whether a punishment labeled as civil is in reality criminal. The seven-factor test adopted by Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)asks 7 questions:

(1) whether the sanction involves an affirmative disability or restraint;
(2) whether it has historically been regarded as a punishment;
(3) whether it comes into play only on a finding of scienter*;
(4) whether its operation will promote the traditional aims of punishment — retribution and deterrence;
(5) whether the behavior to which it applies is already a crime;
(6) whether an alternative purpose to which it may rationally be connected is assignable for it; and
(7) whether it appears excessive in relation to the alternative purpose assigned.

*Scienter is a Latin term for “guilty knowledge.” Under all federal forfeiture statutes, some degree of guilty knowledge is required — this is inherent in the innocent owner defense.

This standard differentiates between “criminal” (punitive) and “civil” (remedial) statutes.

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