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February 21, 2007

Analogizing extreme punitive damages and extreme punitive sentences

My take on the Philip Morris decision has already generated many thoughtful comments, which prompt me to develop a bit more the analogies I see between extreme punitive damages and extreme punitive sentences.  Here goes:

1.  Both punitive schemes are authorized by legislatures.  Before a jury can impose extreme punitive damages, such damages have to be directly authorized or at least indirectly permitted by legislatures.  Legislatures can put caps on punitive damages.  The dissenters in Philip Morris likely believe that limits on punitive damages should come from democratic lawmaking and not from judicial constitutional creation.

2.  Extreme punitive outcomes are the product of case-specific decisionmakers gone wild.  Extreme punitive damages awards are typically the product of a particular jury deciding to bring the hammer down on a particular tortfeasor it does not like (for good or bad reasons).  Extreme punitive sentences are typically the product of a particular prosecutor deciding to bring the hammer down on a particular offender it does not like(for good or bad reasons). 

3.  The deep harms of extreme outcomes may come from the pressure to settle/plea.  A judgment of $80 million probably does not cause much of a blip in most major corporate balance sheets.  But, extreme awards drive up the costs of litigation and produce pressure on corporations to settle weak cases rather than run the risk of out-of-whack punitive damages.  Similarly, a harm of extreme sentences is that they are only imposed on defendants exercising their trial rights and ticking off prosecutors seeking a plea (see, e.g., Berger and Wilson and the border agent cases and just about every other out-of-whack criminal sentence).

4.  Judicial moderation of both types of extreme outcomes seems warranted in light of the Bill of Rights.  For the record, I am comfortable with some judicial regulation of extreme punitive damages awards.  Extreme out-of-whack jury awards surely can create real harms that legislatures will not always (and perhaps should not always) seek to address.  Extreme out-of-whack sentences surely can create real harms that legislatures will not always (and perhaps should not always) seek to address.

February 21, 2007 at 11:03 AM | Permalink


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Very interesting post. I'm a bit confused by one of the comments, though:

Extreme punitive sentences are typically the product of a particular prosecutor deciding to bring the hammer down on a particular offender it does not like.

How does this work? If there's a jury trial, in either state or federal court, any resulting extreme sentence is the product of either a harsh judge or harsh mandatory minimum sentences, no?

If there's a plea bargain, then presumably the defendant is getting less than he'd get by going to a trial and being found guilty, so it's hard to characterize such a situation as "deciding to bring the hammer down."

I'm sure that I'm missing something.

Posted by: Bill | Feb 21, 2007 11:24:45 AM

I think Doug is referring to the prosecutor's significant discretion in such matters as: what crimes to charge, what plea bargains to propose or accept, and the punishments the sentencing court is urged to mete out.

Prosecutors can usually evade mandatory minimums when they want to, either by charging lesser offences or by granting a safety-valve exception.

Obviously, if the defendant refuses to bargain, the prosecutor ultimately has to persuade a jury. But when the risks to the defendant are stacked high enough, prosecutors can ensure that all but the most stubborn defendants won't take the risk.

Posted by: Marc Shepherd | Feb 21, 2007 11:43:54 AM


If I'm reading you correctly, you assume that 1) the Constitution should be interpreted to correct any "real harms" that the legislature doesn't correct, and 2) the baseline of existing precedent is irrelevant. In my view, the difficulty with using this argument to criticize the Court's decisions is that none of the 9 sitting Justices share either of these assumptions.

Posted by: Orin Kerr | Feb 21, 2007 1:00:28 PM

Orin, I read the text and some Eighth Amendment precedents to place substantive constitutional limit on certain types of extreme criminal punishments, and I am eager for the Justices to develop those limits more robustly in the context on very long terms of imprisonment.

I do not readily see how the text of the Due Process clause places substantive constitutional limits on certain types of extreme punitive damage awards. Nevertheless, Philip Morris reveal that five justices are prepared --- perhaps even eager --- to stretch both the Due Process text and the Court's precedents to addres what it sees as the "real harm" (to corporations) of extreme punitive damage awards.

My main point is to suggest that the five Justices eager to constitutionally regulate punitive damages might be prepared to bring the same instincts and techniques to bear when considering the Eighth Amendment's text and the Court's precedents to addres the "real harm" (to individuals) of extreme punitive sentences.

Posted by: Doug B. | Feb 21, 2007 5:23:30 PM

Another similarity is the due process issue of uncharged offenses. In a civil case where the punitive damages award is based on harm to people other than the defendant, the jury is essentially punishing the defendant for uncharged torts (punitive damage cases are almost always torts). In a criminal case where there is an extreme sentence, this is often the result of a judge applying sentencing discretion to reflect uncharged crimes. This is particularly obvious when guideline sentencing is involved.

The prosecutor's intransigence in at least some of the most notorious statutory rape cases reflect a belief, not necessarily proven at trial, that the circumstances are consistent with a more serious forcible rape offense which is hard to prove. This is particularly a motivating factor when there are multiple sex partners in a single episode, something present in a number of high profile rape cases in recent memory.

Posted by: ohwilleke | Feb 21, 2007 7:23:06 PM

Doug, that's a brilliant argument, and though Orin may be right none of the current justices share those views, if they were intellectually consistent, at least five would.

Posted by: Gritsforbreakfast | Feb 21, 2007 8:26:06 PM

Maybe Berger still has a chance: http://www.supremecourtus.gov/docket/06-349.htm

Posted by: federalist | Feb 21, 2007 11:28:29 PM

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