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.
