Types of Penalties to Draft in Statutes

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.