Types of Penalties to Draft in Statutes

Types of Penalties to Draft in Statutes By Chris Micheli

            There are basically three types of penalties that we find in statutes around the country, including criminal, civil, and administrative penalties.

In general, a civil penalty is a financial payment assessed by a court for violation of a statute or regulation. It is primarily sought to compensate the state for harm done. Any bill including a civil penalty should indicate who is assessing the civil penalty and where the civil penalty collected will be deposited. There should also be a limit on the amount of the penalty.

An administrative penalty is an enforcement tool similar to a civil penalty. It resembles a fine and it is for violation of prohibited conduct that usually must be proved only by a preponderance of the evidence, rather than the stricter burden of proof that applies to a criminal penalty.

The major differences between an administrative penalty and the civil penalty is who assesses it and the procedure used. A court assesses a civil penalty, while an administrative agency assesses an administrative penalty.

A criminal penalty is imposed upon a criminal defendant for having committed a specified crime. Criminal penalties can take several forms, including incarceration, probation, restitution, and financial penalties.

When providing for penalties, the bill drafter needs to specify: (1) the amount of the penalty; (2) the reason for the penalty’s assessment; (3) the procedures for assessing the penalty; (4) the procedures for protesting and appealing the penalty; (5) how a record of the hearing is taken and the scope of review; and (6) how compliance may be enforced.

 

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