Punitive Damages, Criminal Punishment, and Proportionality: The Importance of Legislative Limits

This Article addresses the timely and controversial topic of constitutional limits on punitive damages and brings a criminal punishment theory perspective to the analysis of this issue. The question of how to determine when punishment is unconstitutionally excessive has been and continues to be a subject of intense debate in the courts and scholarly circles. The United States Supreme Court has subjected criminal sanctions, criminal forfeitures, and punitive damages to a proportionality requirement, but the Court uses different approaches to the proportionality analysis depending on the type of punishment. In the criminal context, the Court has retreated in large part from proportionality review, deferring to legislative maxima for criminal sentences. By contrast, where there is no legislative cap on the punitive damages a jury can award, the Court has undertaken a more active role in determining the proportionality of punitive damages. Similarly, where there is no legislative limit to the amount of property that can be forfeited, the Court has engaged in a more active proportionality review. An analysis of the Supreme Court’s different proportionality reviews demonstrates that the different approaches are explained by the presence or absence of legislative limits on punishment. This Article examines the nature of punishment and the requirements for just punishment—notice, proportionality, and limits—and applies these principles to punitive damages. It concludes that a system that imposes no limits on the amount of punitive damages awards contravenes the principle of notice and leaves courts with little guidance in assessing the excessiveness of particular awards. To bring punitive damages into conformity with the principles of just punishment and to provide courts with a benchmark for evaluating the proportionality of punitive damages awards, the Article concludes with proposals for legislative limits on such awards. Because of the importance of limits on punishment, including punitive damages, this Article suggests how states can impose caps on punitive damages awards that serve the policy interests of punishing and deterring wrongful and harmful conduct, and how states can use caps to justify large awards in appropriate cases that will survive excessiveness challenges