Pricking the Lines: The Due Process Clause, Punitive Damages and Criminal Punishment

The Supreme Court has recently devoted substantial attention to the question of what limits the Constitution places on the permissible amount of punishment. The Court has offered both substantive and procedural answers to this question. In decisions involving challenges to the length of criminal sentences, the Court has identified constraints that are doctrinally independent of one another: a proportionality principle under the Eighth Amendment that forbids a sentence grossly disproportionate to the defendant's crime and a due process principle requiring that any facts that increase the authorized sentence a defendant faces be proved beyond a reasonable doubt to a jury. By contrast, in cases involving challenges to the amount of a punitive damages award, the Court has taken a more doctrinally integrated approach. Substantively, the Court has again adopted a test that centers on proportionality, this time locating the requirement within the due process clauses. But with respect to damages, the Court's procedural solution takes power away from juries and provides for de novo review. This article looks at the sentencing and punitive damages decisions in tandem. Here, as in several other areas, the Court's approaches to similar questions in the civil and criminal arenas take very different turns. Part I considers the Court's articulation of proportionality tests under the Eighth Amendment (for criminal sentences and fines) and the due process clauses of the Fifth and Fourteenth Amendments (for punitive damages). It shows that proportionality is both an inherently alluring and an inevitably unsatisfactory measure of constitutionality, particularly with respect to a judicially enforceable rule. Part II looks at the Court's procedural decisions. Given the convergence of substantive constitutional principles in the sentencing and damages cases, what accounts for the sharp divergence in the role the Supreme Court accords juries, reallocating authority to them and away from judges in criminal cases, while doing exactly the opposite in civil ones? I suggest that differences between the two kinds of litigation may explain why proportionality review is relatively more attractive in punitive damages cases. First, the Court may perceive the existence of more objective indicia of excessiveness in the punitive damages cases. Second, the punitive damages cases may raise reverse federalism concerns that are absent from criminal prosecutions. Third, the Supreme Court may think the level of federal intrusion can be better controlled in the civil context. And finally, criminal cases may involve better oversight by politically accountable actors.