Comparison to Criminal Sanctions in the Constitutional Review of Punitive Damages

This Article focuses on the third guidepost announced in BMW v. Gore for reviewing whether the amount of punitive damages award is so excessive as to violate due process, specifically, comparing punitive damages to criminal sanctions. Part I of the article examine the Supreme Court\u27s language in several cases about the relevance of criminal sanctions to the question whether a punitive award is constitutionally excessive. It criticizes the Campbell effort to distinguish between civil and criminal penalties under the third guidepost. Part II suggests that the third guidepost, in theory, wrongly constrains courts from imposing sanctions above those created by the legislature and fails to recognize that the conduct addressed by a punitive award may be more blameworthy than that addressed by an applicable statute. Part III considers how comparisons to criminal sanctions have influenced constitutional standards review of punitive awards in the lower courts, both before and after Campbell. The author concludes with the suggestion that although there may be theoretical and practical reasons to dispense with the third guidepost, as long as the Supreme Court continues to require its use, comparisons to criminal sanctions should be as relevant to constitutional review as civil sanctions