Thursday, March 27, 2008
Retributive Damages: The Case for Partial Outsourcing of Retributive Justice to the Tort System
In earlier posts gathered here, I laid out the Introduction and some relevant background regarding
punitive damages law, recent scholarship, and retributive justice. Subsequent posts addressed: which misconduct should be the subject of retributive damages and whether non-victims of wrongdoing should be empowered to bring claims for retributive damages (and if so, under what restrictions); how to bring rationality and fairness to determining the amount of retributive damages; and how to allocate the retributive damages among the state, lawyer and plaintiff.
Today's post focuses on the case for developing an intermediate sanction of retributive damages that follows the structure described earlier. The material below appears in unfootnoted and unformatted form, but you can read a draft of the whole article with apparatus on SSRN here. Feel free to send me your thoughts via email.
MOTIVATING RETRIBUTIVE DAMAGES
Knowing what they look like, we can now try to explain the affirmative rationale for retributive damages awards. Section A examines the particular strengths of retributive damages against powerful and wealthy entities and individuals in particular. Section B ex-plains what a retributive damages scheme in general can achieve. Section C summarizes these benefits and articulates the comparative advantages of retributive damages vis-à-vis compensatory damages, class actions, criminal sanctions, and extra-compensatory damages awarded for victim-vindication or cost-internalization. Last, in Section D, I explain why retributive damages should remain a supplement to, rather than a substitute for, traditional criminal punishment.
A. Retributive Damages Against the Wealthy or Powerful
Perhaps the most important reason for making retributive damages available is to facilitate a modest form of punishment that is otherwise especially difficult to obtain against wealthy and powerful persons and entities. In other words, even when the criminal justice system would normally seek to punish offenders for serious wrongs, it might be par-ticularly difficult to do so when the offender is a wealthy or powerful person or entity. In such situations, retributive damages proceedings might generate relevant information (spe-cifically information related to a defendant’s mens rea) for possible subsequent prosecution efforts against the defendant or related parties by the state that would not be made available by relying on compensatory damages suits alone.
1. Obstacles to Investigating Misconduct
Retributive damages schemes are attractive because they help overcome the diffi-culties associated with the historically scant investigation of wrongdoing by powerful and wealthy individuals and entities. As Professor Darryl Brown points out, many kinds of white-collar or corporate misconduct are harder to investigate because, compared to street crime, they are both more private (in the sense of obscured from view) and more complex.
In terms of privacy, the misconduct perpetrated by the wealthy and powerful oc-curs largely indoors, and as Professor Bill Stuntz, among others, noted various criminal procedure doctrines protect privacy. Coupled with the fact that inculpatory documents might be shielded by privilege available to those who can afford counsel before arrest, it is no surprise that the misconduct of wealthy and powerful entities and persons will more likely be obscured relative to the misconduct of those lacking substantial resources and op-erating in plain view of others.
Additionally, investigation of misconduct by wealthy and powerful persons and entities is impeded by the complexity of the criminal activity. As one former prosecutor put it, “The history of punishment in corporate cases is not very good,” because often “[t]hese are complex schemes, and it's sometimes difficult to unwind them from an investigative standpoint and ultimately explain them to a jury.” And as Professors Galanter and Luban have cogently explained, there are many times when reliance upon state-initiated investiga-tions is inadequate to the task of ferreting out the type of malfeasance that passes the repre-hensibility threshold associated with punitive damages.
To see how this pattern unfolds, consider the difficulty of detecting malfeasance in the context of manufacturing activity. Imagine a defendant manufactures a product and in the course of its design makes various calculations not to disclose substantial hazards that might be associated with its design. Consequently, various users are injured across the country. The local and state police are unlikely to detect problems with the product out-side their locality, at least initially. Moreover, the law enforcement authorities will have no reason to suspect that there were culpable decisions made at the company headquarters, of-ten in another state and outside their jurisdiction. As Professors Galanter and Luban de-scribe the problem,
Even federal authorities will have no reason to believe that anything other than a typical series of accidents has occurred unless they perform a statistical analysis of the pattern. Suppose, then, that punitive damages were replaced by criminal sanctions in morally culpable product liability cases. Law enforcement would re-quire statistical analyses of all patterns of automobile accidents, and appliance ac-cidents, and pharmaceutical accidents, and heavy equipment accidents, and on and on, around the country, which is utterly impossible. Even if it were possible, the analysis would overlook those culpable injuries that do not leave a statistical fin-gerprint behind them. Finally, once an investigatory agency becomes convinced that an offense has occurred, it would have to investigate the offending company to establish culpable negligence. No federal agency has or could have the resources to carry out so many investigations, nor would we be likely to welcome a federal agency that is such a nosy intruder.
As Galanter and Luban observed about Ford’s failure to recall the Pinto, “the re-peated pattern of [car crashes and subsequent burnings] indicating a defective design emerges only after we consider evidence from many different states and jurisdictions. Thus, the entire pattern will not typically be investigated by state authorities.”
Similar difficulties occurred in the aftermath of the Catholic clergy sex abuse scandals, where Church officials suppressed vital information about the misconduct of its priests. In various jurisdictions where the Catholic Church had close relationships with local prosecutors and police officials, public investigation into the Church’s role was sty-mied because of affinities between officials and the Church. As described by Professor Lytton, only after dogged use of discovery and other private litigation tactics were plain-tiffs’ attorneys able to reveal the extent of the complicity by higher officials within the Church. In many situations, only once private litigants shared their information to the me-dia did law enforcement and state legislatures grapple with the misconduct they were oth-erwise ignoring or downplaying.
These examples illustrate how complex and private misconduct by wealthy or powerful individuals or entities can be quite hard to detect in the course of activity both within and across jurisdictions. Moreover, relying exclusively on public agencies to de-tect this misconduct is an inadequate strategy in a world governed by non-ideal conditions of democratic deliberation and scarce social resources. Indeed, in a regulatory environment often affected by agency capture, we should probably expect spotty government inspec-tions. As one agency official noted recently: “Private enforcement is a necessary sup-plement to the work that the [agency] does. It is also a safety valve against the potential capture of the agency by industry.” Indeed, even when government forces desire investi-gations, access to vital information may be impeded or blocked altogether by competent white-collar criminal defense lawyering. Needless to say, the threat of agency capture and obstructionist lawyering might also serve as obstacles to governmental prosecution of wrongdoing by powerful and wealthy persons or entities. Because of these impediments, it is unlikely, though not impossible, that a cadre of state investigators will effectively under-take national research—and then file suit at each of the state levels.
Although such coordination efforts can happen through the promise of compensa-tory damages alone or in a class action, there are two reasons to think retributive damages as I’ve described them are be an important supplemental tactic to achieve adequate detec-tion and punishment of private or complex misconduct. First, with compensatory dam-ages alone, the lawyers are not incentivized to inquire into the aspects of the defendants’ misconduct that reveals a reprehensible state of mind or mens rea. Satisfying the elements of a case that require mens rea is, on average, more expensive to pursue than satisfying the elements of a case that need only show negligence or strict liability. Without fees for re-tributive damages available, lawyers may decide to settle cases that involve culpable mis-conduct too cheaply. Second, if compensatory damages are really designed to compensate plaintiffs for actual harms to them, it hardly seems right that their lawyers should take a share of that compensation rather than be paid by the malfeasant defendant separately. The bill for the lawyers should not be conflated with the harms to the plaintiffs.
Because inducing public investigation of wrongdoing against financially formida-ble persons or entities within society is sometimes difficult to achieve, the prospect of obtaining (fees and rewards for) retributive damages motivates plaintiffs and lawyers will-ing and financially able to ferret out whether harms or risks were culpably undertaken. In short, retributive damages may work as an effective supplemental strategy of law enforce-ment, a form of sousveillance against the rich and powerful who might otherwise evade the surveillance undertaken by public law enforcement agencies.
2. Obstacles to Prosecuting Misconduct
Beyond simple investigation, we must also consider the comparative difficulty of prosecuting crimes (or claims generally) against wealthy persons or entities. Such “white-collar” defendants often have excellent counsel, and, conventional wisdom to the contrary, are often able to overwhelm the relatively scarce resources of the prosecution, es-pecially at the state level where the bulk of wrongdoing is prosecuted and punished. Put more modestly, skilled defense counsel will be effective, at least on the margins, at making the unreasonable seem reasonable, which is particularly helpful for defendants trying to es-tablish reasonable doubt about the ambiguous areas of moral wrongdoing sometimes asso-ciated with white-collar misconduct. As Galanter and Luban have noted, a variety of fac-tors help make prosecuting white-collar conduct more difficult:
White-collar criminals have more influence over sources of damaging information; the evidence of white-collar crimes may be more dispersed and less exposed; the definition of the crimes is typically more ambiguous, so that defendant behavior is more likely to look marginally legal and get the benefit of the doubt from prosecu-tors and judges; white-collar criminal defendants have more resources and are more sophisticated; agencies investigating white-collar crimes are more likely to allow precharge adversary hearings in which the defendant's lawyer can argue against indictment; the government is less likely to make arrests or physical searches in white-collar cases; white-collar indictments are more delayed, allowing better preparation for defense; and the defense lawyer in white-collar criminal cases is usually better qualified.
To be sure, the odds for federal prosecutors have substantially improved against corporations and executives, particularly in recent years with respect to securities fraud. Prosecutors now routinely use threats of conspiracy prosecutions against low-level execu-tives to secure cooperating witnesses, and through those witnesses, they can generate copi-ous amounts of information about the more senior officials and the misconduct within the corporate bureaucracy. Additionally, in some jurisdictions, prosecutors offer leniency for the “fruits of employer coercion of employees to waive their rights to silence,” waiver of the entity’s attorney-client privilege, or the termination of indemnification of attorney fees to the entity’s agents. Taken together, these constitute increasingly powerful incentives for persons or entities to share information about potential culpability.
In response, critics have sounded alarms over the sweeping effects of such appar-ent over-criminalization and over-enforcement, suggesting instead that much of this mis-conduct is better left addressed through the civil, not the criminal, system.
Unfortunately, the impediments to effective redress in the civil system are difficult to surmount, especially in a world without ready access to remedies like retributive dam-ages. The result, according to Professor Christine Hurt, is a criminal system that creates too much risk of severely punishing conduct that is not all that egregious while at the same time failing to ensure adequate redress against those whose actions warrant, at the very least, some form of intermediate sanction. In other words, it’s a system with too great a risk of Type I errors in the criminal context and too great a risk of Type II errors in the civil system.
3. The Low/High Problem With Criminal Penalties As Applied
The apparent imbalance espied by Professor Hurt suggests that retributive dam-ages, if properly designed, might also provide a way around what might be thought of the “low/high” problem as it applies especially to corporate criminal activity. As various scholars have demonstrated, non-custodial criminal penalties against persons and entities have in the past tended to be extremely low, often rendering them mere “costs of doing business” rather than signals that the conduct in question should be categorically prohib-ited. Additionally, notwithstanding the social stigma typically attaching to criminal con-victions, individuals within corporations themselves may feel somewhat insensitive to that stigma because responsibility for particular misconduct is dispersed across persons, place and time. The consequences are predictable in such situations: defendants might view fines as prices, not sanctions.
For example, where state fines were set too low, railroads in Wisconsin repeatedly ignored their lack of compliance with rules necessitating repairs that could cause fires to brush that had not been removed from the area around the tracks. Only after a substantial punitive damages award was levied against the railroad did the company strengthen efforts to ensure compliance with the rules governing maintenance and brush-clearance issued by the state’s Department of Natural Resources. Similar examples abound. As alluded to earlier, legislatures have responded selectively to the problem of low penalties in recent years. In the federal context, the focus of these high penalties has been on preventing and punishing securities fraud.
But with these high criminal penalties lies an additional problem, related to con-cerns of proportionality: overkill in the form of disproportionate punishment. Critics of corporate criminal liability have raised concerns about the danger that indictments against the corporation pose: in particular, they might destroy the entire company and the jobs of innocent persons instead of focusing on the malfeasance of the bad actors or the failure of the managers and owners to adequately control the bad actors. Consequently, companies might be both too weak (against the perils associated with corporate criminal prosecution) and too strong (against regulatory powers where the investigative functions are stymied or corrupted through capture or rent-seeking). As a result, the prospect of a retributive dam-ages scheme as an intermediate sanction expands the arsenal of tools to facilitate compli-ance and the detection and punishment of misconduct by wealthy and well-organized per-sons or organizations.
B. What Might Retributive Damages Achieve Generally?
This section explains why retributive damages might be a socially beneficial policy prescription broadly speaking. In light of the account in Part II, it’s not especially hard to see why we might establish a system of criminal law and punishment to serve these pur-poses. It is a bit harder to see why we might additionally use a civil system to impose re-tributive damages. Why not simply invest more social resources in the criminal justice sys-tem if we are concerned that the project of retributive justice is being given short shrift? Retributive damages are not necessarily a more efficient sanction, but they may be ap-pealing for reasons described below.
1. Retributive Justice in the Real World
Making retributive damages available provides society some flexibility it might not otherwise have regarding allocation of public resources. To see why, we must first appreci-ate the major differences between a retributive damages action and a criminal penalty: a) criminal penalties are usually prosecuted exclusively by a state attorney, b) defendants in American criminal actions are entitled to a richer panoply of procedural safeguards, c) criminal penalties often lead to a host of collateral sanctions, and d) criminal penalties may include prison time for individual defendants. The combination of these factors works to create a stronger social stigma or condemnation of the defendant than there would be in the absence of these factors. Of course, retributive damages are still a coercive condemnatory sanction that sets defendants back in a position worse than where they were prior to the misconduct; thus, they do serve to effectuate retributive justice. But those differences ren-der retributive damages an intermediate sanction, lying between compensatory damages and criminal penalties.
A society that did not want to spend scarce prosecutorial resources investigating and prosecuting minor wrongs could nonetheless make available a legal forum where per-sons can seek bring actions against malefactors whose misdeeds have failed to trigger criminal prosecution because of more urgent priorities in prosecutors’ offices. The bare reality is that prosecutors typically don’t have the resources to investigate and prosecute all the criminal conduct that arises. Thus the tort system serves as a corrective to public in-action in some cases, allowing private parties to vindicate the kinds of wrongs the criminal system might, in a fully-funded world, pursue. Insofar as the CCR not only permits reason-able punishment but also encourages the punishment of legal offenses (to reduce Type II errors and avoid the sense of impunidad that would be communicated to offenders and ex-pressed to the public), a retributive damages structure is a way of dealing with scarce pub-lic resources that must be allocated among a variety of compelling moral priorities. Of course, if this is the rationale, we need to ensure that defendants receive procedural protec-tions necessary for imposing an intermediate sanction on them: access to counsel, an in-termediate standard of proof (i.e., clear and convincing evidence), protections against du-plicative punishment for the same misconduct toward the same victim; and guidelines that both inform and limit the amount of penalties a defendant faces on account of its miscon-duct.
A second general rationale for a retributive damages scheme is that it might better facilitate the promotion of proportional sanctioning between misconduct and penalties. Re-tributivists and others might want a softer sanction for misconduct that is not worthy of be-ing deemed or condemned in the strongest terms as “criminal.” Allowing for retributive damages facilitates that goal, in particular because incarceration and collateral sanctions (e.g., disenfranchisement, residency restrictions) would not attach to the award of retribu-tive damages under this proposal. Thus, in some cases, retributive damages might be a penalty that seems suitable to the comparatively less severe wrongdoing at hand. Because of the collateral consequences ensuing from a criminal conviction, even a criminal fine might be viewed as too onerous a penalty for certain misconduct. Thus, prosecutors could look at successful retributive damages actions and determine whether additional prosecution is appropriate.
One might respond by simply asking to expand the range of criminal sanctions so that some criminal penalties do not carry collateral consequences in less severe cases. That’s not a bad idea, as far as it goes. But if we think there is something distinctive and worth preserving about the higher level of condemnation communicated through a criminal sanction compared to the presumably lower level of condemnation communicated with a civil sanction, then keeping some of the relevant and reasonable collateral consequences of conviction might better facilitate the realization of that gradation. And inasmuch as ex-panding the range of criminal sanctions would serve, arguendo, to impede the availability of retributive damages in the tort system, it would likely impede the realization of retribu-tive justice in situations of scarce public resources, such as those discussed immediately above.
3. Encouraging Market Transactions
Imagine X Corp wants to develop a product for consumers. Y Corp makes a simi-lar product using proprietary information. X Corp decides to steal Y Corp’s information and manufactures the new product at a lower price than Y Corp. By ensuring that X Corp will be in a worse position if it is caught for its theft, the availability of retributive damages encourages market transactions with respect to misconduct that violates property rules, that is, those rules which require parties to negotiate over the transfer of legal entitlements prior to their exchange. When a defendant knows he has to pay more in excess of its gain or the harm caused – and retributive damages will always exceed more than the greater of these two figures – a defendant in X Corp’s position should prefer to bargain. Unsurpris-ingly, this is part of the logic behind some criminal penalties too.
This structure is beneficial for two reasons. First, the transaction costs associated with ex ante bargaining in the marketplace are likely to be lower than those associated with ex post litigation in the courts. Second, to the extent that fewer potential defendants take rights (and possibly pay for them ex post through the tort system), it helps eliminate the wasteful precautions associated with trying to prevent mistreatment of one’s rights. At the same time, retributive damages might perform this task more cheaply or effectively than use of criminal sanctions, since there are fewer deleterious consequences to the defen-dant and fewer costs associated with enforcing the rights of criminal defendants. If we want to encourage market transactions at a cheaper social cost than criminal penalties, which often have socially burdensome and problematic collateral sanctions associated with them, retributive damages might provide a superior tool to do so, at least in contexts in-volving violation of property rules.
C. The Comparative Benefits of Retributive Damages
As Nietzsche pointed out, punishment’s utilities are overdetermined. I take the central benefit of retributive damages to be the fact that their availability helps effectuate the good of retributive justice by reducing the incidence of Type I and Type II errors. By imposing an intermediate sanction only on reckless or malicious wrongdoing, a retributive damages scheme will facilitate conventional criminal law punishment against those pock-ets of society that have traditionally been able to resist punishment by virtue of the rela-tively private and complex nature of their misconduct. This misconduct would, ex hy-pothesis, otherwise be on the agenda of the prosecutor’s office but, because of difficulties in detecting the private and complex wrongdoing, escape such condign punishment. Re-tributive damages schemes also: facilitate legal condemnation for wrongdoing that is not on a prosecutor’s office agenda because of pressing budget constraints and political re-sponsibilities (or improper external pressures); afford more granular proportionality be-tween misconduct and penalty and thus avoid overkill by use of criminal indictments against corporate entities; and encourage market transactions and concomitantly reduce so-cially wasteful expenditures on preventions against unauthorized takings or violations of rights. To the extent retributive damages can aid in achieving these purposes, one can see what public benefits might accrue from the availability of awarding retributive damages to the state and private plaintiffs.
One might wonder whether some of these benefits arise when extra-compensatory or compensatory damages are available on non-retributive grounds and in class actions. Below is a chart in which I summarize how retributive damages would stack up against re-liance upon other remedies and mechanisms. [OMITTED. SEE ARTICLE ON SSRN FOR CHART.]
As one can see, class actions seeking only compensatory damages might address the incentives problem for lawyers to bring cases of misconduct. But so long as they were seeking compensation for the plaintiff or cost-internalization for the class of plaintiffs, they would not need to inquire into evidence that indicated malice or recklessness. That de-prives the state of knowledge possibly relevant to imposing retribution on wrongdoers and issues no judgment of condemnation. From an economic perspective, compensatory dam-ages simply price behavior rather than punish it, allowing defendants to undertake all sorts of misconduct if they are willing to pay damages. If extra-compensatory damages were awarded on the grounds of cost-internalization alone, they would suffer from the same problem. They would leave the defendant no worse off than a position in which they sim-ply price their conduct according to its harms. Damages designed to achieve cost internali-zation might be appropriate when the defendant acts with adequate regard for the security and well-being of others, but they are inadequate, on a retributivist rationale, when the de-fendant’s misconduct evinces grossly insufficient care for the interests and well-being of others.
Extra-compensatory damages might also be contemplated solely for the purpose of victim-vindication (what I have called “aggravated damages”). These aggravated damages would go to the plaintiff as compensation for uncompensated dignity harms (separate and apart from pain and suffering). While aggravated damages might encourage lawyers to fer-ret out evidence of a defendant’s state of mind, they would fail to do much for the public’s interest in retributive justice. That’s because with aggravated damages, the victim is em-powered to seek or not seek such damages; Type II errors are more likely, since the victim-vindication model doesn’t purport to restrict the plaintiff from either forbearing from seek-ing punitive damages or to settle at an amount lower than what is necessary to signal to the defendant to forbear from such misconduct in the future. Moreover, proponents of victim-vindication models haven’t embraced any real constraints on jury discretion, which gives awards of punitive damages a very ad hoc veneer.
Importantly, while retributive damages have some distinctive advantages, there is no good reason to doubt that they can interact well with cost-internalization strategies (like class actions for compensatory damages) to avoid working at cross-purposes or duplica-tion. While I leave that proposition to defend in the next article, for now, I hope I have brought into better focus the intelligibility and advantages of retributive damages as com-pared to compensatory damages, criminal sanctions, or damages designed to achieve cost-internalization and victim-vindication.
D. Why Not Private Criminal Punishment?
Thus far I have explained why the state would be interested in outsourcing part of its investigative and prosecuting functions to private parties and why such outsourcing would not be inherently disruptive to the project of retributive justice. What I also need to explain is the attractiveness of retributive damages vis-à-vis the private enforcement of the criminal justice system. Some of the benefits described above might arise if we had statutes that permitted private citizens to serve as prosecutors under the criminal law, or if we had mechanisms that allowed private citizens to compel prosecutions in the criminal justice system, or at least forced prosecutors to give reasons for declining to prosecute certain ac-tions.
Without arguing that retributive damages would be a superior strategy to all these other mechanisms, let me raise a few cautionary points. If we allowed only private actions brought under the criminal law, we would lose both the expertise and the disciplinary op-portunities to keep the prosecutor in check, facts that occur as a result of the government serving as a repeat player in the criminal justice system. There would also be a risk that the criminal justice system’s moral credibility would be undermined (further?) since only those with time and resources would serve to prosecute claims and that would systematically dis-advantage the poor.
If we allowed a private right of action under the criminal law to supplement rather than supplant the government’s work, other problems unfold: there might be races to the courthouse between public and private representatives to avoid double jeopardy concerns; government prosecutors would have less incentive to do its job if the private sector could wholly displace it; and, most importantly, we might have a higher error rate of both Type I and Type II kinds if private citizens’ or their hired agents couldn’t be counted on to do their work competently, diligently, and fairly in large part because they were not repeat players and because they could reasonably be viewed as more biased (whether consciously or unconsciously) against possible defendants. It would also be hard to imagine how one privatizes prosecutions without privatizing the investigative function of police too.
A more modest proposal would be to allow private citizens to lodge complaints or request explanations for prosecutorial inactivity, but that’s something that already exists in a few jurisdictions, and fits compatibly with our current regime and a scheme of retributive damages. Another alternative, which some have suggested, would be a public regulatory system with fines and sanctions, and rewards and lawyers’ fees for whistle-blowers who call attention to unsafe products or conditions, the detection efforts of which can be dele-gated to private attorneys general who might not be actual victims. Assuming this model introduced intermediate sanctions and had the procedural safeguards defendants would need, this model could plausibly achieve many of the benefits retributive damages actions seek to achieve. However, it is unclear whether an adjudication and penalty through an administrative agency would suffice in actually conveying the condemnation through communal judgment that a judgment of retributive damages would through the use of a jury trial and/or judge. Moreover, there might be some efficiency gains by having retribu-tive damages actions ride piggyback to the tort system. If we relied on a public regulatory system to do some of the work done by punitive damages now, it might require the devel-opment of a whole new governmental apparatus. Indeed, a public regulatory system, at least as some of its advocates would have it, also requires the introduction of large social insurance schemes to replace tort law. My sense is that these alternatives are not meant to render retributive judgments but simply to ensure compensation and deterrence more effi-ciently.
By contrast, the basic structure for retributive damages already exists within our extant tort law system and would require just a few modifications. Indeed, if a state wanted to be serious about retributive damages as a fair scheme of imposing an intermedi-ate sanction, there are only a handful of critical and relatively straightforward steps it must take. First, pass a statute that says retributive damages will be available for X, Y and Z kinds of misconduct. Second, declare which, if any, of these wrongs (just X and Y?) are enforceable by private attorneys general after the government has declined to sue. Next, indicate that all suits must initially allege retributive damages in the complaint and that all settlements will have to be approved by the court and the attorney general's relevant office. Then, devise guidelines and commentary to track reprehensibility and assess what percent-ages of wealth or net value will correspond. Fifth, draft instructions for juries on retribu-tive damages inspired by the instructions appended to this article. Last, allow defendants to credit retributive damages against any subsequent criminal penalties.
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