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.