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October 26, 2006

Punitive damages and excessive punishment

Next week the Supreme Court will hear Philip Morris USA v. Williams, which is yet another challenge to a punitive damages award that a corporation complains is excessive.  Today, in this great piece in the the New York Times, Adam Cohen astutely spotlights that the case will "reveal whether the court will continue on its current disturbing path of giving corporations more protection from excessive punishment than it gives to people."  Here's a big part of the last section of Cohen's powerful commentary:

These rulings [in BWM and State Farm limiting punitive damages] are remarkably "activist" by all the traditional measures. They take a vaguely worded constitutional guarantee — that no one shall be deprived of property without "due process of law" — and translate it into a right that is not at all apparent from the words' plain meaning.  They attempt to turn the guarantee into a precise mathematical formula.  And they substitute the judges' worldview for that of elected officials. If Oregonians believe punitive damages are too high, their legislature can impose a legal cap.

These activist decisions, which give corporations valuable constitutional privileges, relied on the votes of conservative justices, who are supposedly skeptical of "judge-made" rights. Justices Sandra Day O’Connor and Anthony Kennedy provided key votes for BMW.  Justice Kennedy wrote the State Farm "single-digit ratio" opinion, and Justice O'Connor and former Chief Justice William Rehnquist joined it.

The contrast with the court’s decisions on punishment of human wrongdoers is stark. In 2003, the court considered the sad case of Leandro Andrade, a father of three who was given a minimum of 50 years in prison under California's tough "three strikes" sentencing law, for shoplifting $153.53 worth of videotapes from Kmart.  He argued that his prison term violated the Eighth Amendment. The Supreme Court — in a majority joined by Justices O'Connor and Kennedy and Chief Justice Rehnquist — could find nothing excessive in the punishment.

Based on the Constitution's words, Mr. Andrade certainly had a stronger case than BMW or State Farm.  The Eighth Amendment expressly bars "cruel and unusual punishments," which might reasonably be interpreted to cover imprisoning a man from age 37 to 87 for stealing $153.53. The companies claimed only that the punitive damages awards violated their "due process" rights, a far greater textual stretch. 

On the issue of what is "excessive" punishment, Mr. Andrade’s claim is also stronger. It is hard to see how it is excessive to make Philip Morris, whose market capitalization is $166 billion, pay a mere $79.5 million for "extraordinarily reprehensive" and lethal conduct, but not excessive to make Mr. Andrade spend what is likely to be the entire second half of his life in prison for a petty theft.

The question of whether there should be constitutional limits on punitive damages has proved difficult to resolve, and it has caused divisions in both the court’s liberal and conservative blocs. (It is one of the very few issues in which John Paul Stevens votes with corporations and Antonin Scalia votes against them.) Whatever the court decides, it should develop a constitutional theory of excessive punishment that covers human and corporate wrongdoers equally, as the Duke Law School Professor Erwin Chemerinsky and others have urged.

The current doctrines make no sense, least of all by the standards of conservative constitutional interpretation. Conservatives like to talk about the "framers' intent." The framers were deeply concerned about excessive punishment, and set forth their views on it in the Eighth Amendment. They would be perplexed that the high court they created believes their Constitution permits a father to remain in jail for 50 years for petty theft, but does not tolerate taking a fraction of the wealth from a company that kills people.

October 26, 2006 at 07:30 AM | Permalink


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1. I agree with Adam Cohen that the Supreme Court has shown a shocking lack of concern for human liberty and dignity, in upholding draconian sentences under the Eighth Amendment (see my essay in 89 Minn. L. Rev. 571). And there are even worse cases than that of Leandro Andrade, who “only” got a 50-year minimum sentence (which, because it was a federal habeas case, the Court could affirm without ruling directly on the Eighth Amendment question). Consider, for example, the 200 year prison term (with no possibility of parole or pardon) given to Morton Berger, a first offender who downloaded onto his computer 20 child pornography images (see Sentencing Law & Policy, May 10, 2006).

2. Although the lineup of some of the justices seems odd in the punitive damages cases, Stevens and Scalia are consistent – Stevens supports more active proportionality review in prison as well as punitive damages cases, and Scalia opposes any constitutional proportionality review. Two of the punitives-review activists (O’Connor and Rehnquist) have been replaced by Roberts and Alito; does anyone know what they’re likely to do?

3. Yes, the Court needs a better and more consistent theory of excessive punishment, and there are well-established proportionality principles, both retributive and utilitarian, to draw on (89 Minn. L. Rev. 571). But I would caution the Court’s critics – be careful what you wish for! At least the Court has recognized SOME constitutional proportionality limits; if pushed too soon or too far, it may repudiate them (eliminating the disparity between prison and damages review by cutting back the latter). The same goes for Morton Berger’s case, which now has a cert petition pending. I would like to think that the Court will use this case to reestablish at least minimal Eighth Amendment limits; but if the Court takes the case and affirms, that will drive the final nail in the coffin of Eighth Amendment proportionality review of prison terms....

Richard Frase
Univ. of Minnesota

Posted by: Richard Frase | Oct 26, 2006 5:54:27 PM

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