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February 21, 2007

Activist liberty: second guessing corporate punishment by state juries and courts in Philip Morris

I have never quite understood Justice Breyer's concept of active liberty, especially since the concept seems hard to square with Justice Breyer's antipathy toward the Apprendi-Blakely line of constitutional decisions.  And Justice Breyer's majority opinion for an unusual coalition of justices in the Philip Morris punitive damages case does not help me understand his vision constitutional adjudication.  But, I do understand some other important realities after Philip Morris:

1.   At least five members of the Supreme Court remain willing and perhaps eager to place significant constitutional limitations through the Due Process Clause on punitive damages awards.  And, since Justice Stevens notes that there is "little difference between the justification for a criminal sanction, such as a fine or a term of imprisonment, and an award of punitive damages," criminal defense attorney might look for ways to use Philip Morris when attacking certain sentencing outcomes.

2.  Philip Morris champions federal judicial regulatory power over the authority of state juries and courts.  In Philip Morris, a state jury decided that a corporation deserved to be punished to the tune of $79.5 million; Oregon state courts ultimately found this punishment to be justifiable.  But the five members of the Supreme Court essentially overruled these judgments while announcing a new judicially-created constitutional limit on punitive damages awards.

3.  The five Justice in the Philip Morris majority includes both Chief Justice Roberts and Justice Alito, but neither Justice Scalia or Justice Thomas.  If President Bush's goal truly was to appoint justices in the mold of Scalia and Thomas, Philip Morris would suggest he failed. 

4.  As I suggest in my initial post on Philip Morris, it remains to be seen if the five Justices who are prepared to constitutionally second-guess certain instances of harsh corporate punishment might also be willing to sometimes constitutionally second-guess certain instances of harsh individual punishment.

February 21, 2007 at 07:18 AM | Permalink

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If President Bush's goal truly was to appoint justices in the mold of Scalia and Thomas, Philip Morris would suggest he failed.

President Bush's goal was framed in terms of the legal issues conservatives traditionally care about, particularly abortion. The president knows that Scalia and Thomas don't vote together in every case, and they don't vote for the president's preferred outcome in every case. But they do vote that way in the cases he truly cares about. When Roberts and Alito cast their first votes in abortion cases, then (and only then) will we know whether President Bush got the justices he wanted.

it remains to be seen if the five Justices who are prepared to constitutionally second-guess certain instances of harsh corporate punishment might also be willing to sometimes constitutionally second-guess certain instances of harsh individual punishment.

The Court didn't reach the issue of whether the punitive damages award was overly harsh. They reversed because the jury had been encouraged to punish the defendant for harms to non-parties.

Posted by: Marc Shepherd | Feb 21, 2007 8:36:02 AM

I think you are splitting hairs with your second point, Marc. However you want to frame the particulars, the simple reality is that 5 justices worked real hard to find a constitutional problem with a harsh corporate punishment, and I hope the same group will work just as hard to find problems with harsh individual punishments.

To be precise, Breyer and Souter and Kennedy do tend to work hard to find constitutional problems with death sentences, but I think they ought to spend more time looking closely at other harsh sentences (especially for folks --- like Genarlow Wilson and the border agents --- who committed crimes arguably a lot less culpable than Philip Morris).

Posted by: Doug B. | Feb 21, 2007 9:16:43 AM

Like most of President Bush's policies or visions, his statements about wanting to appoint Justices like Scalia and Thomas demonstrated his own short-sightedness and failure to know what he was really talking about. He probably blithley assumed that "Scalia/Thomas = 'conservative' outcomes." Anyone who follows the Court knows that's just not the case -- as their votes in the Sixth Amendment punishment, Eighth Amendment punitive damages, and Armed Career Criminal Act cases show. It's simply another sign that Bush has only the most superficial view of yet another subject matter, or that he only really cared about a few hot-button issues, which is irresponsible as well. (And his comments certainly didn't help Scalia or Thomas, either, whose views are obviously much more nuanced than the easy label of "conservative.")

Posted by: Bill | Feb 21, 2007 9:33:58 AM

I basically agree with Marc Shepard's points. I disagree with the Philip Morris case, and I think this entire line of cases was made up out of whole cloth, but I think point 3 mischaracerizes what Bush said and point 4 seems to ignore the role of the baseline of existing precedents.

Posted by: Orin Kerr | Feb 21, 2007 10:00:05 AM

The basic difference between huge punitive damages awards and long criminal sentences is that the latter are typically the product of clear legislative choices, whereas the former are typically the work of a single jury acting with little or no guidance other than its own view about proper punishment. The Court's Eighth Amendment decisions emphasize the need to show deference to deliberate judgments made by the political branches; that consideration doesn't usually enter into punitive damages cases. What the Court is doing in the punitive damages cases is to impose a set of legal standards that wouldn't otherwise exist. That effort can be criticized, but I think it's a bit facile (albeit popular) simply to equate the two lines of cases, and say that any Justice who votes to strike down punitive damages awards on due process grounds is thereby required on pain of hypocrisy to overturn long criminal sentences on Eighth Amendment grounds.

Posted by: Brian | Feb 21, 2007 10:22:24 AM

1. Note the same dissenting lineup in the case striking down California's attempt to allow restitution to Austrian holocaust victims. The cases are quite different (indeed I agree with the dissent in the case, because I believe that no international agreement short of a treaty can validly usurp state powers, but would go even farther than the majority here), there may be a common denominator in which this block of four woud allow significant flexibility to states to allow for restitution for ills it seeks to punish.
2. This case set limits on the amount of punitive damages at all; it only banned states from allowing judges or juries to use them to directly punish a defendant for harm done to non-parties.
3. I wouldn't go too far in comparing the ban on excessive punitive damages found in the prior cases with bans on excessive sentencing. The point that has probably as of yet prevented any conservative justices from voting to void a jail sentence as cruel and unusual is that, unlike punitive damages, jail sentences are spelled out in advance and therefore don't present any surprises, failing the "unusual" prong of the ban. With no "death is different" component to pull off Kennedy, or literal excessive fine to pull off Thomas, Justice Stevens is going to have a hard time finding a fifth vote to compare the predecessor cases to excessive criminal punishment.
4. There is no doubt that President Bush didn't appoint Justices like Scalia and Thomas. His original intent was probably to appoint a results-oriented conservative like Rehnquist, so he did fulfill the original intent of his promise. But his omission of Rehnquist in his promise is most fairly understood as an intent to appoint originalists, so on the "original understanding" intepetation of his words, he didn't keep to them. Because the difference is subtle to most of his base, this didn't present any real problem, so the President was able to nominate Justices that 1) placated his base, 2) were more likely to be confirmed (non-originalist is less scary), and 3)being more results oriented, more likley to rule in his favor on the administration's most important issue of executive power.

Posted by: Jacob Berlove | Feb 21, 2007 10:27:47 AM

I don't think we can take much away from the votes in Philip Morris. The distinction involved is very, very fine: the difference between (a) punishing a defendant because his conduct harmed non-parties and (b) punishing a defendant because his conduct harmed the plaintiff and was especially reprehensible because it harmed non-parties too. The majority says defendants are entitled to a jury instruction making clear that (b)'s OK, but (a)'s not. Maybe so, but the dissent makes a lot of sense too. The dissenters, though, except Thomas, weren't directly challenging BMW, and it's not a surprise that JGR & SAA wouldn't jump on the anti-BMW bandwagon where it wasn't even a question presented. Thomas & Rehnquist voted to approve SDP in Troxel, so I don't think joining the anti-SDP BMW dissents is necessarily a sina-qua-non for in-Thomas-and-Scalia-mold-ness.

Posted by: Chris | Feb 21, 2007 3:37:02 PM

I am a criminal defense lawyer.

I've argued since Apprendi that the Oregon death penalty statutes, which do not permit any judicial review of the sentence, violate due process. We have 4 questions (to paraphrase), Was the murder deliberate? Was it an over-reaction to the victim's provocation? Will the defendant be dangerous in the future? And...(the post-Penry attempt to save the statute) should the defendant get the death penalty....to answer that question, the jury must balance aggravating factors & victim impact with mitigating factors. It's quite a mechanical approach, and with no judicial review of the ultimate sentence.

Posted by: Laura Graser | Feb 22, 2007 9:18:10 PM

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