November 01, 2006
Punitive Damages, Proportionality, and Sentencing
Posted by Christine Hurt

Last week, I posted an attempt to debunk the "if you think Skilling's sentence is excessive, what about drug sentences" argument.  The New York Times has twice in the last two weeks compared the Supreme Court's willingness to place due process limits on excessive punitive damages awards with the Court's unwillingness to strike down "three strikes" laws as violating the Eighth Amendment.  Both editorials (one authored by Adam Cohen, the other unsigned) mention a heartbreaking case of a father who was sentenced to 50 years after his third conviction -- shoplifting videotapes worth $153.53 -- in the context of the Williams case that was heard yesterday.

This argument seems somewhat more compelling mostly because it is directed not at me but at the Supreme Court, which seems to have the obligation and opportunity to opine on both of these areas of the law.  The assumption behind the argument is that those likely to be on the receiving end of excessive punitive awards (and some may be repeat players or at least repeat industries) have the incentives, resources, and power to argue forcefully for damage limits both as a state legislative reform matter and as a judicially-recognized constitutional law matter.  Those who may be sent away for the rest of their lives for the third hot check or shoplifting spree may not.  There also seems to be an accusation in these pieces that the Supreme Court doesn't care about common petty thieves because they are after all criminals, but they have a soft spot in their hearts for tort defendants who aren't of the same guilty mind.

I could argue that proportionality is more important a concept in criminal convictions than in tort damages (and really, a punitive damages ratio limit is reflecting a policy of proportionality) because of the qualitative difference between jail time and monetary damages.  Courts seem to assess punitives with an eye to the defendant's overall ability to pay (how much money will the defendant have left over), but sentences don't seem to reflect a concern about how much of the prisoner's life will be left over.  Criminal defendants have a finite lifespan whereas tort defendants (except in bankruptcy) generally do not have finite lifetime resources.

Although I am generally not in favor of tort damage caps, punitive or otherwise, I understand that a finding of tort liability is generally less blameworthy than the finding of criminality.  However, recklessness and gross negligence may not be as far from some crimes as one would think.  Perhaps the court is more deferential to legislators who pass three strikes laws and judges that sentence criminals than to juries who might be "runaway juries."  We may also be concerned that in a non-class action setting, a large punitive award may be duplicated in another proceeding (and may attract other proceedings).  However, that concern could be deal with in other ways and really isn't a concern that this particular award is excessive.

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