PrawfsBlawg

Sheila B. Scheuerman on Markel's "Retributive Damages"

Somewhat randomly, I just stumbled across this new essay on the Legal Workshop by Professor Sheila Scheuerman that takes my "Retributive Damages" piece in Cornell to task for a) conjuring a scheme that does not resemble punitive damages, and at the same time b) ostensibly suffers from due process questions arising from the SCT's punitive damages jurisprudence.  Hmmm.  

After the jump, I've reprinted her critique. I'll try to work up a response and share it next week. Though I guess the title of her response suggests something like I'm Alice in Wonderland, I'm nonetheless very grateful to Prof. Scheuerman for the attention she's paid to my work. I hope it withstands her scrutiny, at least when viewed in conjunction with the second piece in the series, How Should Punitive Damages Work?, which came out in final form a couple months ago. If you've read my piece(s), feel free to weigh in on the matter in the comments. Have a good weekend!

Haberman et al on Madoff

Clyde Haberman, who writes the NYC column for the NYTimes, has a reaction piece in today's Times about the 150 year sentence for Madoff. He surveys views from a bunch of prawfs, including me. Needless to say, most of my reactions were unprintable and not consistent with family-friendly content, so they were left on the editing room floor... :-)

The piece appears after the jump. Feel free to weigh in with your tempered views in the comments on Madoff's sentence--or his wife's non-sentence...

July 3, 2009
NYC
Is 150 Years Appropriate, or Just Silly?
By CLYDE HABERMAN

Sholam Weiss, a son of Brooklyn, was a crook. By all accounts, he was also a rather unpleasant man, hardly the sort to inspire compassion. A federal judge in Florida certainly had no sympathy for him after he was found guilty of a fraud that drained hundreds of millions of dollars from an insurance company and caused its collapse.

In February 2000, the judge piled up dozens of criminal counts against Mr. Weiss, one on top of another. Thus did she create what is thought to be the longest federal prison sentence ever imposed: 845 years. Mr. Weiss’s projected release date is Nov. 23, 2754. This is only a guess, but he is not likely to make it.

So did the judge, Patricia C. Fawsett, show admirable toughness with a notorious offender? Or was an 845-year sentence simply silly, inviting disrespect for the legal system?

For that matter, what about a sentence of 150 years? It, too, can never be fully served. The reference, of course, is to the century and a half in prison to which Bernard L. Madoff was condemned this week by a federal judge in Manhattan, Denny Chin.

James A. Cohen, a Fordham University law professor, is among those who have a problem with sentences that are on their face impossible. “It prompts in some people a lack of respect for the system,” Professor Cohen said. “Somebody has to be asking, ‘What is that about? What are we really thinking?’ ”

“It’s putting out something that is obviously false and fake to everybody,” he added, “and why are we doing that?”

Obviously, his is not a universally shared opinion. A more popular view is probably that 150 years in prison is too good for the likes of Mr. Madoff. That is reflected in victims’ comments and in the “boil him in oil” tone of much of the news coverage.

But at some point the Madoff case may be examined with more dispassion. Any analysis would have to include the reasonableness of the sentence ordered by Judge Chin, a widely admired jurist. Acknowledging the symbolic nature of those 150 years, the judge cited a need for deterrence, retribution and justice for the victims.

Deterrence, however, is often an elusive goal. It is mentioned by some as a reason, for example, to preserve capital punishment. Yet the Death Penalty Information Center in Washington, analyzing federal crime statistics, has found that the 10 states with the highest murder rates all have capital punishment on their books. Among the 10 states with the lowest murder rates, 6 get by without the death penalty.

With financial crime, are we to take as a given that a grifter will be deterred by sentences that, besides being unrealistic, seem to wander all over the lot? Mr. Weiss got 845 years for ripping off a few hundred million dollars. Mr. Madoff got a mere 150 years for a swindle put at $65 billion. What gives?

The dollar value is “a dangerous factor to focus on in many cases,” said Dan Markel, a law professor at Florida State University. “It introduces a variable that is highly contingent on luck and fortuity to drive sentences,” he said, and it may steer the courts away from “considered assessments” of blame and punishment.

RETRIBUTION? Mr. Madoff is 71. The odds are against his making it to 100. A 30-year sentence would have provided the same degree of retribution as one of 150 years.

As for the victims’ desires, there can be a fine line between justice and pandering. Douglas A. Berman, an expert on sentencing law at Ohio State University, expressed concern about “a tone and culture that says, ‘Hey, if the victims are really ticked, let’s give them their due.’ ”

That said, Professor Berman saw good reason to throw not just the book at Mr. Madoff but the entire library. “This is a blood lust,” he said, “but it’s a setting in which if ever a blood lust was justified, this was it.” He added, “This truly is, for lack of a better term, the Adolf Hitler of white-collar crime.”

Stephen Gillers, who teaches legal ethics at New York University, also puts Mr. Madoff in a criminal class of his own, one that justifies a maximum sentence. With those 150 years, Mr. Madoff is not merely being punished, Professor Gillers said. He is being banished, even in death.

To Professor Gillers, it’s no longer about Bernard Madoff, or even concepts like retribution and deterrence. “We’re making a statement to ourselves about the kind of people we are,” he said, “and what we will not accept.”

DA's Office v. Osborne: Bad Facts Make Tough Cases

I've only had a chance to read the SCt's opinion in DA's Office v. Osborne rather quickly, but I thought I'd share a tentative reaction or two and invite some conversation on the topic. (You can get the opinion here, and Liptak's got a summary of the issues here.)  In this case, the Court's conservative majority declined the invitation to constitutionalize under the Due Process Clause a right to gain access to DNA evidence via a Section 1983 claim. 

I'm not a fed cts scholar so I'll leave aside the issue of whether Osborne ought to have pursued his claim through habeas instead of 1983. (My sense is that Alito's concurring opinion has the better argument as to why it should be done through habeas.)  But getting to the merits, my view is that the unsavory facts of Osborne's case will be used to cabin the scope of the holding. On better facts, and perhaps in a more appealing procedural posture, at least Kennedy will be likely to come around and recognize the rights of the actually innocent in post-conviction scenarios.

Osborne's plausible legal request was hampered, in other words, by the facts that a) he had already been convicted for a subsequent home invasion; b) he had admitted to his participation in the crime during his efforts to seek parole (which put defendants in a tough situation by asking them to accept responsibility); and c) most importantly, his lawyer declined to get more accurate forms of DNA testing during the trial b/c she wanted to take advantage of the imprecision of the DNA testing that was ordered to create reasonable doubt. In other words, she strategically declined more advanced testing (despite her client Osborne's apparent importunations that more sophisticated) because she thought enhanced testing would establish her client's guilt rather than preserve the possibility of a mistaken identity theory that she argued to the jury.

These bad facts and the potential biases created by them made the case a bad one in terms of establishing doctrine, but my sense is that lower courts with more favorable factual situations will at least be able to cabin the thrust of the Osborne case by pointing to the dicta in the majority opinion by Roberts that emphasizes that actual innocence claims are still possible.  This is a relief, for reasons I explain below the fold.

   In my forthcoming piece on Panetti and the future of the Eighth Amendment, I argue that the Court's reasoning in Panetti v. Quarterman commits itself implicitly to both communicative retributivism and negative retributivism.  The negative retributivism commitment in punishment theory basically says the state may not punish a defendant if she is not guilty, and if she is guilty then she may only be punished to the extent her guilt permits the punishment. In the context of doctrine, obviously concerns of finality are allowed to play a role in crafting decision rules for judges and other state actors.  But those concerns cannot preclude reasonable attempts by convicted persons to have newly discovered evidence that is highly probative and was earlier unavailable be considered by the state--or at least, that's what I argue. The problem with Osborne's case is that his facts look uncomfortably close to one where a defendant is trying to, as Justice Alito noted, game the system. (In Panetti, Kennedy was joined by the four moderate/liberals; in Osborne, Kennedy voted with the traditionally more conservative side of the court.) 

My hope then is that litigants better situated than Osborne will be able to access DNA evidence by bringing a Panetti-inspired Eighth Amendment claim--but I don't really have a dog in the hunt regarding whether it's procedurally managed through habeas or 1983. It seems as if the habeas strategy will be more likely to garner votes. As to the substance, whether it's done through the Eighth Amendment or due process, my sense is that the Osborne case will definitely not be the Court's final word on access to DNA testing and that lower courts will be able to work around Osborne based on the bad facts here.  

All that said, I'm curious to hear what Steve and Howard have to say on the procedural stuff, and what your reactions to the case were also.

Some Thoughts on the Book-Writing Sentence

As promised earlier in the week, I thought I'd share some reflections on the unusual sentence Judge Urbina imposed on an offender convicted of lying to the feds: namely, that he must, among other things, write a book about what he's done.  I did an interview with Ashby Jones over at the Wall Street Journal Law Blog, the substance of which is posted here, and which I'll reproduce after the jump.

If you’ll indulge us, we’d like to circle back to a story that broke earlier in the week that we touched on briefly here. In short, on Monday, a federal judge in Washington, D.C., Ricardo Urbina, sentenced a former senior pharmaceutical executive to write a book.

According to the NYT story on the sentence:

Earlier this year the executive, Dr. Andrew G. Bodnar (pictured), a former senior vice president at Bristol-Myers Squibb, had pleaded guilty to making a false statement to the federal government about the company’s efforts to resolve a patent dispute over the blood thinner Plavix.

The judge sentenced Dr. Bodnar to two years of probation during which he is to write a book about his experience connected to the case. Dr. Bodnar must also pay a $5,000 fine.

The NYT story notes that it’s not the first time Judge Urbina has issued an unconventional sentence. In 1998, he sentenced a Washington lobbyist who had pleaded guilty to illegal campaign contributions to write a monograph and distribute it to 2,000 other lobbyists.

But we got to wondering about Urbina’s sentence — whether it has broader historical precedent, whether the punishment is likely to serve its purpose, and whether it’d be a good thing to see more of these creative sanctions. With that in mind, we checked in with Dan Markel, a law professor at Florida State University and one of the people behind Prawfsblawg, which has long been part of our daily reading. Markel has written extensively on the topic of punishment and is the author of a new book, along with Jennifer M. Collins and Ethan J. Leib: Privilege or Punish: Criminal Justice and the Challenge of Family Ties.

Hi Dan, thanks for taking the time. Judge Urbina’s sentence on Monday struck us as strange and provocative. Are there historical precedents for sentences like this?

Certainly there have long been alternatives to incarceration, some of which have been creative and designed to induce guilt or moral education; others that are simply meant to publicly shame and humiliate.

However, even with shaming punishments, when they were used in the colonial or post-colonial era, there were often points at which a community would hold a sort of reintegration ceremony, in which the person held in public scorn would be welcomed back into the community and told, in so many words ‘Go, and sin no more.’ I think that aspect of reintegration has been lost, though, in most modern shaming punishments.

And are these types of punishments coming into favor — or has their day passed?

I think they have had a bit of a resurgence since the early 1990s, but the evidence is largely anecdotal. Back then, some academics like Yale’s Dan Kahan became proponents of shaming punishments because they — rightly, in my opinion — thought judges should find alternatives to incarceration for many nonviolent offenders. Shaming got a quite a lot of exposure more recently in 2004, when the Ninth Circuit, in a case called Gementera, upheld, despite a strong dissent by Judge Hawkins, a trial judge’s imposition of a supervised release condition in which a mail theft offender was ordered to stand outside a post office with a sandwich board sign that read ‘I Stole Mail; this is my punishment.’ That case is now in a lot of criminal law casebooks.

Since then, at least in the academy, there seems to be a bit less support for shaming sanctions.

Okay. So what exactly is “shaming” about Judge Urbina’s sentence?

Actually I see this sentence less as a “shaming” sentence and more as what I’ve referred to as a “guilting” punishment. A guilting punishment is morally educative and is focused on having the defendant realize what he or she did wrong and why it was wrong, rather than exposing him to public ridicule or humiliation, which is a signal feature of shaming punishments. Writing a book can basically happen in private and there’s no risk that a lynch mob will form to threaten the state’s monopoly on punishment here.

Judge Urbina doesn’t seem to be requiring that the book be circulated widely — it seems to just be a long essay written to the judge, the point of which seems to be to make the defendant think about what he did and why it was wrong and why this type of act — lying to the government about something that could affect public health — shouldn’t be tolerated.

It seems like there’s a continuum between “shaming” and “guilting” punishments, right?

Sort of; I think there’s a continuum of how severe shaming can be, but I think guilting is different. Certainly the wide exposure associated with the imposition of a guilt punishment can incidentally shame someone, but that’s not really the point of the sanction imposed here.

Judge Urbina’s sanction here strikes me as more “guilting” than “shaming.” After all, there’s no state authorized attempt to hold the defendant out for humiliation and no invitation of the public to participate in that scorn the way there was in the Gementera case. In my scholarship, I’ve taken a strong stance against shaming punishments, largely because often they strike me as having to do more with vengeance than with impartial retribution. Judge Urbina’s punishment doesn’t strike me as particularly vengeful.

So you’d be okay with seeing more of these types of “creative” punishments?

I would, but with some caveats. First, I’d have some systematic concerns. I wouldn’t want to see the benefits of these types of sentences conferred only on people of a certain race or class who seem especially able to the court to be able to engage in book writing while poor folks are presumed not to have anything interesting to write or say. In other words, I wouldn’t want to see the “book-writing” sentence given only to those defendants who own a certain level of literacy or certain gifts of language.

Second, remember that there’s an important rationale behind the initial passage of the federal sentencing guidelines: namely, to try to reduce unwarranted disparity such that people who commit similar crimes are treated roughly similarly. I think if you see a proliferation of these types of creatives sentences, you run the risk of imposing sentences that vary too much across cases. That concerns me a little too.

But here, it doesn’t strike me as that much of a problem, partly because [Dr. Bodnar] was charged with a misdemeanor. I think it makes more sense to allow more discretion to judges when it’s a non-severe offense and the punishment imposed is relatively modest too.

And what about the punishment itself — having to write a book? Does it strike you as an effective punishment?

Standing alone, no, I don’t think it’s particularly persuasive. My concern with it, standing alone, is that the punishment might not be sufficiently condemnatory. Punishments for wrongdoing need to condemn, and to condemn, sentences need to register as setbacks to both the defendant and the public.

However, I think the sanction, once it’s coupled with the other measures Judge Urbina imposed [two years' probation and a $5,000 fine], that could be sufficiently condemning. And that could be useful. My concern is that you could undermine the very point of a punishment by just allowing someone to write a book, from both deterrence and retributive standpoints.

So you’d generally be okay with these types of punishments, so long as they’re applied fairly and consistently and achieve the goals associated with sentences?

Right. I’m supportive of guilting punishments when used smartly and fairly. We definitely use incarceration too much and for periods of time that are too long, especially for people who don’t pose physical harm to the community.

That said, if these are going to pick up, they need to be calibrated. The sentencing commission needs to weigh in on this, at least to ensure there’s a check on what judges are doing. Congress, too. Both need to be working in concert with the federal judiciary.

Very interesting stuff, Dan. Thanks for taking the time.

My pleasure.

The Asinine Evidence for Largely Irrelevant Inquiries: Kagan and SCOTUS

I just got back the other day from a quick trip to Israel, where I was teaching a mini-course on punishment and sentencing at Bar Ilan, so I haven't had a chance to do much substantive blogging lately. That said, in the morass of catch-up, I did come across a recent judicial politics posting on NRO (which I came across via ATL) that I though warranted some response. 

In her post, Wendy Long argues that Elena Kagan shouldn't be awarded any points by conservatives in the post-Souter confirmation process for her purported success in making HLS more hospitable to libertarians and conservatives. Why not? Because under Kagan's tenure as dean, only 3 "conservatives" were hired (Goldsmith, Manning, and Vermeule), and this represents only 7% of the hires made during Kagan's time as dean.

Long's argument is based on a simplistic understanding of law school hiring. 

If Long's inference is to be valid, one must assume that a dean of HLS (like other law schools) can simply appoint or not appoint persons to the faculty of her choosing.  But that assumption cannot be granted.  There's a sausage factory hiring process usually influenced if not controlled by an appointments committee. While the dean may appoint the chair and members of the committee, anyone familiar with academic politics knows it's unlikely that the chair will simply push through whichever candidates the dean may be excited about. Moreover, deans are usually leery of getting entrenched in appointments matters for fear of stepping on the toes of the committee and the faculty when they make their respective votes. Deciding membership on the faculty, after all, is often at the core of faculty governance. 

Two more points: first, if the number of conservatives or libertarians hired is thought relevant to gauge the open-mindedness or moderateness of a dean, then so too (if not equally in weight) would be the number of offers made by faculties and deans--one can't always lure every conservative away, even to a place like HLS. But Long gives no information on the number of offers made but rejected. Second, Long also provides no evidence or argument on the number of stellar "conservative" faculty who should have (or plausibly could have) been appointed to the HLS faculty. There might well be the same kind of "size of the pipeline" arguments in this context that are raised in other contexts. While there are many talented conservative and libertarian scholars, how many of them would be clearly "above the median" of the HLS faculty if the goal of the faculty is to improve itself? Long says nothing on this.

In sum, taking credit or blame for faculty hiring is a bit like Presidents taking too much credit or blame in the managing of the economy. Senators (or citizens) should not think that Kagan's potential merits as a Justice are diminished in any way on the grounds of the putatively small number of conservative faculty hired during her tenure as dean. If one is inclined to agree with the analysis above, or parts thereof, I think it makes sense to consider to what extent it makes sense to hold deans "responsible" or accountable for the numbers of women or minorities hired also. Problems in faculty hiring are almost invariably the product of a "they," not a she.

That's not to say Kagan's experience as HLS dean is utterly irrelevant. There may be some qualities that map well between dean and Justice.  Indeed, one fruitful line of inquiry would ask whether, for example, conservative and libertarian student groups, professors, and individual students reacted positively to Kagan's deanship? Did they feel they were listened to, treated fairly, and included in the relevant realms of decision making? Does the same hold true for women and minorities? If the answer to those questions is yes, those are marks of a good dean. And those signals of open-mindedness might indicate some of the liberal virtues we hope judges also exercise. But the achievements  of a good dean are not the same as the achievements or virtues that conduce to being a good Justice--a point that should make readers even more suspicious of Long's tendentious post.  

Privilege or Punish: Criminal Justice and the Challenge of Family Ties

Exciting news: my book with Ethan Leib and Jennifer Collins, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is officially out. 

Oxford University Press is offering a 20% off deal with this promo on its website.  Amazon is also selling it here. You can see the cover and the book's description here.  There are some testimonials here from Dan Kahan, Jonathan Simon, Bob Wesiberg, Michael O'Hear, and Rick Hills.

I should add that we are very keen to spread the book around, so if you're interested in reading the book but can't afford the price (or can't get your library to buy a copy), please email me and I'll send you a PDF of the book for free. You just have to promise to read it! And you can't use it for non-commercial purposes or we'll sick the OUP lawyers on you. 

Alternatively, if you let me know you're interested in buying a hardcover, I can acquire a batch at 40% off, which brings the price down to a more manageable 45$.  We're hoping lots of people (academics, law students, and civilians) will be interested in reading it -- and perhaps reviewing it. If you are interested in reviewing it, please feel free to let me know and I can tell you of some outlets and venues that might be interested. I can also ask the good folks at Oxford to send you a review copy if you send me your mailing address. For what it's worth, my mother-in-law, perhaps a partisan to the cause, mentioned that it was written accessibly for non-lawyers. I hope she's right.

In related news, there will be a roundtable on the book at Law and Society in May featuring Melissa Murray, Alice Ristroph, Don Braman, Tommy Crocker, and Naomi Cahn.  Additionally, there will be another panel at SEALS in August. Last, there will be a Feature on the book in the Yale Law Journal sometime next year, which will include a handful of essays from a number of folks, as well as a piece by us, tentatively titled, Rethinking Criminal Justice and Family Status. I'll have more info on these panels and discussions in the coming weeks.  There are many people who helped make this book possible, including many writers and readers of this blog. We are profoundly grateful for that assistance and encouragement.

A Bit More Bubbie Blogging and an Amichai Poem

The funeral this afternoon was brief but powerful, a testament to a life well-lived. After the jump are some reflections I had the chance to share about my extraordinary grandmother.

Bubbie Helen was a woman of valor, and thus by our tradition, someone to be cherished especially and deeply so. But more than her valor during a life of hardship, her life was marked by its incessant buoyancy of spirit. Her life, which we celebrate and commemorate today, was audacious: for how many others do we know who only lived with joy, optimism, and gentleness despite a life in which others would find turmoil, sadness and tragedy?

 

 

Piha patchah v'chochma v'torat chesed al l'shonah

She opens her mouth in wisdom, and the lesson of kindness is on her tongue. 

 

This line from Eishes Chayil reminds me of Bubbie Helen. Someone who gained wisdom over the years through grueling encounters: leaving her parents behind in

Europe

as a teenager; an immigrant to a new country and new language; an early widow of Sam. Twenty one years as a single mother before she found her second life-partner, Maurice. Working in the shmatta business many long years, and doing so as a woman, as a mother, sister, and later a stunningly effective and loving grandmother.

 

I will leave to others the task of describing the many contributions she made to our community and our people. I have only the comparative advantage of the perspective of a grandson who was best known to her, and many in this room, for his juvenile banditry – most often launched at her expense when I was a toddler chasing her with brooms and various handheld appliances.

 

As her grandson, I remember a few things distinctly.  First, my banditry was often followed by the threat (sometimes credibly exercised, but always justly so) that a putch in tuches geht arein in kopf.  And second, the imperative: Zei a Mensch! (Also said as: “It doesn’t matter whether one’s a doctor or lawyer, the important thing is: Zei a Mensch.)

 

It’s the second instruction toward menschlichkeit that I still find most powerful and in some sense most mysterious.  Most powerful because being a mensch set a standard for conduct that was high but not impossible.  It put an end to most dither and blather. Put simply: what would a decent and thoughtful person do? If I gave that matter at hand some consideration, and applied this standard, I found I often reached a pretty good resolution to whatever squabble I had somehow embroiled myself in. 

 

But over time, and especially during my twenties, I found the instruction to be a mensch was not always a self-executing concept; I wish I had Bubbie closer to ask her guidance. In matters of love, for example, one might find oneself puzzled by the demands of menschlichkeit. Would a mensch try to make one foundering relationship last a little longer or determine that it was time to cut things off?  In other spheres I often wondered: how is a mensch supposed to respond to those who unambiguously wrong him? With proportionate retribution or with disproportionate mercy?

 

But even as I struggled with this Yiddish Yoda-like instruction, I knew that, at least with matters of courtship, the kind of person I should be with was someone that would pass muster with Bubbie Helen.  I am saddened that my beloved, and now six and a half months pregnant, wife Wendi only had a chance to see Bubbie Helen as Bubbie Helen herself was seeing the dusk of her days.  But even during the period of that dimming light, Bubbie Helen greeted us with reliable joy and ebullience -- and songs of love and hope, peoplehood and peace.

 

That is how I will remember her.  Never slavish or servile to people or conventions but duly respectful of tradition; quick to kindness, even to strangers; willing to work, toil, and mend our broken world one day and one person at a time, with song and spirit to accompany the journey even through the darkest hours. This woman called Mammele, Khashki (the diminuitive of her Hebrew name Khasia), Bubbie, Bubbles – she was a ray of bright, shining light. 

 

A great Irish poet grieved upon his mother’s death: “The space we stood around had been emptied/Into us to keep.” Into us now pour our memories of Bubbie Helen.

 

I will always love her, and be inspired and consoled by the blessings of those radiant memories.

 

I’d like to close by reading one poem from my rebbe, my poet, Yehuda Amichai—it seems like Bubbie Helen might have enjoyed this, might have even shared these words were she able to right now.

 

I, May I Rest in Peace

 

I, may I rest in peace – I, who am still living, say,

May I have peace in the rest of my life.

I want peace right now while I'm still alive.

I don't want to wait like that pious man who wished for one leg

of the golden chair of

Paradise

, I want a four-legged chair

right here, a plain wooden chair. I want the rest of my peace now.

I have lived out my life in wars of every kind: battles without

and within, close combat, face-to-face, the faces always

my own, my lover-face, my enemy-face.

Wars with the old weapons – sticks and stones, blunt axe, words,

dull ripping knife, love and hate,

and wars with newfangled weapons – machine gun, missile,

words, land mines exploding, love and hate.

I don't want to fulfill my parents' prophecy that life is war.

I want peace with all my body and all my soul.

Rest me in peace.

Deaths and death.

Today is officially the publication date of my new book with Ethan and Jennifer but the publisher's selection of this date is not especially auspicious so I'll share some exciting news about that later in the week. 

It's not just Hitler's birthday; weirdly enough, it's also Yom HaShoah, or Holocaust Remembrance Day. It is not always the same day--this year it's kind of flukey that they coincide. But in service to the special day, let me point you to some of the extraordinary stories over on Volokh by David Bernstein and Orin Kerr related to the Shoah.

I was supposed to be co-officiating at a Yom HaShoah remembrance this evening in Tallahassee at my local shul, but I had to withdraw because of sad news closer to home and closer to now. After a full and blessed life, my wonderful grandmother, Helen Lapidus Isakson, died at the age of 95 the other day, so I'm now in Montreal for the funeral and the beginning of the shiva period. The obituary notice appears after the jump. I'll probably have some more to share about the life of this extraordinary woman later on this week. May her memory be a blessing and inspiration as mighty as her life was.

ISAKSON, Helen (nee Lapidus). In Toronto, on Saturday, April 18, 2009, at the age of 95. Beloved wife of the late Samuel Isakson and the late Maurice Caplan, both of Montreal. Beloved mother of Robert and Carolyn Isakson of West Hartford, CT, Ruth (Isakson) and Phil Markel of Toronto. Cherished and adored grandmother of Aubrey Isakson, Loren and Yardena Isakson, Shelly Markel and Ian Freedman, Dan Markel and Wendi Adelson. Great grandmother of Michal, Ari, Roni, and Shireen. Treasured sister of Lazar Lapidus, Harry Lapidus, the late Edith Fagin and the late Esther Zvi. Helen’s devotion to her children was boundless. Widowed at 39 years of age, she dedicated her life and love to their welfare, education and spiritual well-being. She later remarried at 60 years of age to Maurice Caplan. Helen had an extensive network of friendships, all of whom were touched by her positive inspiration. She was a committed lifetime member of the Pioneer Women of Canada and Hadassah. Helen was an avid supporter of Israel and local community charities. She was President of Allure Sportswear Company from 1954-1977. The family wishes to thank Gean Evans and Dorothy Hodgson for their exceptional and compassionate care that was given to Helen, and to express their appreciation to the Baycrest staff. Funeral service from Paperman & Sons, 3888 Jean Talon St. W., on Tuesday, April 21 at 3:00 p.m. Burial at the Adath Yeshurin Congregation Section, Back River Memorial Gardens Cemetery, Berri St. Shiva at 5720 Rembrandt Ave. #301, Cote St. Luc, from 2-4 and 7-9 p.m. daily. Contributions in Helen’s memory may be made to the Baycrest Foundation, 1-800-223-2087, or to the Canadian or American Alzheimer societies. 

Valuing Deaths Differently

Via the SSRN "spam," I just came across Kip Viscusi's new paper on "Valuing Risks of Death from Terrorism and Natural Disasters."  Here's the abstract:

This paper uses a random utility model to examine stated preferences for the valuation of public risks of fatalities from terrorist attacks and natural disasters. Traffic-related deaths serve as the common reference point in two series of pairwise risk-risk tradeoff choices. Even after taking into account differences in respondent risk beliefs, the nationally representative sample values preventing terrorism deaths almost twice as highly as preventing natural disaster deaths and at about the same level as preventing deaths from traffic accidents, which pose greater personal risk. Education, seat belt usage, political preferences, and terrorism risk beliefs affect valuations in the expected manner.

As Viscusi rightly points out, risks of terrorism-related deaths are rarely risks that are the product of market options (e.g., I should have bought that Volvo). I wonder if we can say the same is true for deaths resulting from natural disasters, where "choices" to live in "particularly sturdy housing" or dangerously located areas (near the coast) may affect the risks at issue. For what it's worth, I think the major reason reduction of terrorism-related deaths is justifiably prioritized has to do with the sense that "Terrorism attacks represent an attack on the country and involve commodity attributes that go beyond the number of lives lost." It seems to me that this one sentence is the heart of the matter (though it is curiously under-examined in the paper based on my admittedly quick read.)  In any event, Dan Solove and I batted around some of these issues here, which if you're interested in the social policy issues, you may want to check out.

SCOTUS Digs Philip Morris

Thanks to Adam Richardson, one of my RA's and fave students, I just got word that the Supreme Court dismissed cert on the Philip Morris punitive damages case as improvidently granted. It was a one line per curiam statement, available here. Lyle Denniston of the indispensable SCOTUSBlog has this brief report.   I'd be curious to hear rank speculation about why the case got DIG'd in the comments. In the meantime, here's a snippet of Lyle's work, and some links to my own recent and forthcoming work in the area of punitive damages. 

Mrs. Williams’ lawyers told the Court this time: “Twelve years after the tragic death that gave rise to this action and nine years after the lengthy trial of this case, with four appellate reviews in Oregon, and five years after the first of three trips to this Court, it is time for this litigation marathon to end.”  The marathon, however, may not be over yet.  Philip Morris, at an earlier stage in the case, reserved the right to challenge a state law that requires that 60 percent of a punitive verdict goes to the state of Oregon. The company’s argument against that is that Oregon has achieved all of the proceeds it is entitled to have under the global settlement of a group of states’ lawsuit against the industry. Mrs. Williams’ lawyers, backed by the Oregon attorney general, have argued that the tobacco settlement only applied to that specific case, and thus would have no effect on the verdict in her case.   Philip Morris must take an affirmative new step to revive this issue, according to lawyers involved. The verdict stood at nearly $143 million a year ago when Philip Morris filed its latest petition in the Supreme Court.  Under Oregon law, the interest rises at 9 percent a year, indicating that the award is now worth something around $156 million.  Mrs. Williams’ 40 percent share would thus appear to be somewhere above $60 million.  (The compensatory award of $521,485.50 has not yet been paid, because Philip Morris’ various appeals sought a new trial on the entire verdict.)

The Schlagfest in Geo. L. J. and a mild defense of SSRN emails...

As some of you saw on Co-Op the other day, there's an unusual exchange going on in the pages of the Georgetown LJ this month.  Pierre Schlag has written a(nother) polemic against legal scholarship, and folks as varied as Daniel Ortiz, Richard Weisberg, Richard Posner and Robin West respond. Putting aside the merits of the exchange for now (which I hope to revisit at some point later), I wish to make two small points, indeed, in a phrase I owe to Bob Weisberg, they are thunderously trivial points. [And here it is, I've gone and wasted a perfectly good hour drafting these here in the post...]

First, I couldn't help note that Professor Robin West's response to Professor Schlag is titled A Reply To Pierre. Throughout, and without explanation, Professor West refers to Professor Schlag as "Pierre." Perhaps they are friends. Perhaps P. Schlag implored R. West to call him by his first name given the informality of P. Schlag's paper. In any event, I simply note its apparent and unexplained unusualness, and wondered if it was part of a subtle anti-subordination campaign.  Indeed, although I'm sure it was written well-beforehand, the piece appears on the heels  of New Yorker magazine critic Joan Acocella's letter in the New York Times Book Review this past Sunday, entitled "The Name is O'Connor." In the letter, Acocella decried the habit of the NYT publishing reviews where men are referred to by their last name but women are referred to by their first name.  Of course, it's NOT as if Prof. West refers to men by their first name and women by their last name in this piece.  Still I couldn't help but wonder about the casualness of the reference, the lack of its explanation, and whether that casualness can be, all things considered, normatively justified, especially in the context of a paper defending "normativity" as a law professor's pursuit -- a defense I'm very sympathetic to for reasons of stark self-interest since I'd be out of a job if normativity were verboten. I did once write a piece of juvenilia contending that students and faculty should be on a first name basis with each other. So I am sympathetic to the move, but I wonder if it's a move meant to achieve something else aside from providing a handy and quick referent. [I contacted Prof. West about this and she indicated that it was not intended to subvert or undermine, but rather that since the Schlag piece was informally written, her informality was designed to mirror it and suggest that her critique was intended in a friendly manner also. So that settles that...]

One more trivial point.  (And I hope no one reads this as picking on Professor West, because there's lots more weirdness in Professor Schlag's essay itself, the substance of which Prof. West deftly observes in her remarks, and which I largely endorse by incorporation. Moreover, during the course of writing this post, I came across this absolutely fascinating essay on sex, law, and consent of Prof. West's, which I plan in due course to praise and address a bit more on the merits. )  

In any event, in footnote 8, I noticed her reference to SSRN emails as spam.  Prof. West writes:

When SSRN pops up in the subject line of my emails, I hit delete,
without even a glance, and without even thinking twice. Of course that stuff is spam. It would be nice, in fact, if a sensitive spam filter could select and delete these SSRN emails so I wouldn’t have to. I’m sure I’m not alone in this. Scholarship is now not just like spam [in the Schlagian sense that it is un-nutritious and deadening], it is spam. [italics in original]

I confess I'm puzzled as to why a dean for research (at Georgetown) would say this. First, one opts into receipt of SSRN emails, so they're not the spam of the generally "unwanted" Cialis pill or Russian mail-order bride variety, even though on a particular day, an email from our friends at SSRN might be part of the information overload under which we sometimes labor.  And if one couldn't motivate oneself to un-subscribe from SSRN's mailings, there are in fact sensitive email spam filters that could select and delete these emails: try a filter that deletes anything with publish.ssrn.com in the "from" email address.  Finally, just because the emails on a given day may seem unwanted (even if they are not technically uninvited), that  doesn't make the underlying articles which are linked to in those emails (or any other scholarship) spam, let alone the moral equivalent of spam (qua bad meat or uninvited mass emails). This might be a space where one *should* shoot the messenger but spare from punishment the "message." Indeed, this claim of equivalence between spam and scholarship seemed jarringly inconsistent with West's otherwise illuminating defense of the potential (if not the actuality) of normative legal scholarship, and the exposure of the corresponding shortcomings in Schlag's piece. [After writing this, I showed it to Prof. West, and she said her footnote was intended to ironically make the point that while scholarship is not spam, SSRN floods the market with scholarship and thus, like any commodity which floods the market, the numerous SSRN emails risk bringing down the scholarship's value.  I don't think I buy the argument, but do I share Prof. West's other concern that  these points should not overwhelm the discussion on the merits of the more fundamental critique Schlag makes about legal scholarship, so I'll leave it here, with an invitation to those who want weigh in on that more substantive debate to do so in the comments.] 

Actually, one last point, trying to tie together the essay about consent and sex mentioned above and the relationship we have to these SSRN emails.  In her essay on sex, law and consent, Professor West adverts our attention to the distinction between the unwanted and the unwelcome, a distinction arising out of the literature on sexual harrassment. Perhaps the SSRN emails are unwanted but welcome/tolerated (ie, occuring in a relationship where the sexual attention is welcomed or permitted more generally), and this stands in contrast to the emails selling viagra, which are both unwanted and unwelcome.  If this distinction holds, we might wonder whether the legal scholarship Schlag derides is simply unwanted, or both unwanted and unwelcome...

Should Sara Jane Olson Get to Leave California and Serve Parole in MN?

In today's NYT, noted author Caitlin Flanagan pens an op-ed on the intricacies of parole decisions. Flanagan, you may recall, is the frequently interesting and controversial social critic usually perched at the Atlantic, and formerly of the New Yorker.  Discussing the decision to permit Sara Jane Olson to serve her year of parole by returning to her well-off family and manse in Minnesota, Flanagan argues that it's a mistake for the authorities to give Olson this privilege while so many other Californians serve their parole in CA.  To Flanagan, this decision reeks of the very class and racial injustice that inspired Olson's earlier turn in life as a fetus-stomping, mother-killing, police car-bombing radical member of the Symbionese Liberation Army, which is famous, in part, for its kidnapping of Patty Hearst. (Flanagan has earlier tilled some of this SLA ground here.)

The argument Flanagan makes, however, is elliptic, and, in the end, unpersuasive. She states:

[Olson] served seven years and was released last week, and that’s when her long story came once again to the national fore: her lawyers persuaded California officials to let her serve parole back home in Minnesota. The legal maneuvering by which this bit of comfort has been extended to her — and by which it is now being challenged — is interesting. Because studies have proved that recidivism is lower in those cases in which a prisoner is released to his family, lawyers sometimes argue that the location of parole should be moved if such support is available elsewhere. But it’s a hard case to argue. Only about 1 percent of those currently serving parole ordered by the California Department of Corrections are doing so out of state. Clearly, factors of race and class have come into play. As Celeste Fremon, an expert on gangs and criminal justice, observed on her blog Witness LA: “Over and over again I see young men of color sent away for decades for crimes of far lesser magnitude in which no one was injured. And when they get out on parole, they usually can’t even get their paroles transferred to Riverside — if that’s what they need to be out of harm’s way, get a job and be with their families — much less Minnesota.”

The italicized part of the op-ed is what I want to focus on. Flanagan doesn't give us any basis to think that there's something pernicious here because it could be that the 1 percent of CA's parolees who are out of state are the only people who asked to be serving parole out of state. We would need to know, in other words, how many people are asking to serve their parole out of state to know whether the stat Flanagan cites is of any interest.  

Furthermore, we would need to know what other factors play into the decision by parole boards to let released offenders serve parole out of state.  A number of states don't use parole anymore, so it might be that some people's requests are denied because their sought after state doesn't qualify to satisfy CA's parole requirements. Whether "factors of race and class" are "clearly" in play is just speculative as to this point regarding Olson.  

And for what it’s worth, the point made next in Flanagan’s piece about young men of color goes to the possibility of a separate injustice related to intra-state discrimination. But there's also a potentially race-neutral explanation there. If a gang member's family lives in the same community as the gang with which the offender associated, then the possibility of increased recidivism might offset countervailing benefits associated with consideration of release to the area where the offender’s family lives.  Applied to Olson, it’s a bit implausible to suggest that her return to Minnesota and her family provides the same criminogenic temptation—it’s not as if St Paul MN is where her buddies from the SLA live.

I’m not saying that Olson should have definitely been released to Minnesota. (Some members of the MN government don't want her back, and it's not clear CA should be able to externalize the costs of monitoring parolees onto other states.)  But the case Flanagan presents –with its insinuations of Olson's hypocrisy and CA's  systemic race and class bias in parole decisionmaking—in favor of having  Olson serve parole in CA hasn’t persuaded me, yet. 

I should point out that this discussion raises some similar issues to ones Ethan, Jennifer Collins & I tackle in our book,Privilege or Punish: Criminal Justice and the Challenge of Family Ties, about to come out any day now.  Notwithstanding our general "anti-family" posture in other places in the criminal justice system, we make the case for considering care-giving relationships in the context of prisoner re-entry (but not limiting the analysis to "family status"  strictly speaking).  We also briefly discuss an interesting study by Bedard and Helland showing enhanced deterrent effects when prisons are located far away from an offender's family.  The study, however, does not address the issue Flanagan addresses: namely, whether release to one's family is conducive to reducing recidivism.  

Here's the Bedard and Helland citation. More discussion of that study appears on page 189 of the book in case you're interested.

Kelly Bedard & Eric Helland, Th e Location of Women’s Prisons and the Deterrence Eff ect of “Harder” Time, 24 Int’l Rev. L. & Econ. 147–49 (2004). Notably, Bedard and Helland are able to show that the “harder” time actually serves a deterrent effect; so what may look like a “tax” on families may in the end be an indirect way to keep the family together. Id. at 148–49. They conclude: “[t]he evidence suggests that an increase in average prison distance leads to a decrease in crime. A 40-mile increase in the average distance to a female penitentiary reduces female violent crime, property crime and murder rates by 6.9, 2.3 and 13.3%, respectively.” Id. at 165.

Can Punitive Damages Law Inform the Copyright Infringement Litigation?

I'm just now getting a chance to listen to UCLA prawf Doug Lichtman's really cool podcast on the relationship between punitive damages law and the copyright infringement litigation. I haven't gotten to the point yet where my voice pops up, which is all for good since I often cringe at the playback of my recorded voice.  Here's the summary of the podcast, which is part of Doug's ongoing IP Colloquium series: 

Joel Tenenbaum looks a lot like every other defendant who has been accused by the music industry of illegally sharing copyrighted work online, but with one key difference: his defense attorney is Harvard Law School Professor Charlie Nesson, and Nesson is out to turn his case into a public referendum not only on the music industry's efforts to enforce copyright through these direct-infringer suits, but also on the copyright rules that make the industry litigation possible.
In this program, we engage Nesson's key arguments, focusing especially on Nesson's claim that copyright law's statutory damages regime runs afoul of constitutional protections against excessive and/or arbitrary civil damages awards.
Guests include Professor Nesson himself; Steven Marks, General Counsel for the Recording Industry Association of America; and three of the leading academic experts on punitive damages: New York University Professor Catherine Sharkey, Florida State Professor Dan Markel, and George Washington University Professor Thomas Colby. UCLA Law Professor Doug Lichtman moderates.

Will the election for Morgenthau's successor fail us?

Moments ago, the NYTimes reported that famed Manhattan DA Robert Morgenthau will not be seeking re-election. How should we think of prosecutorial elections that follow? Are they good for democracy? Criminal justice?

I was pleased to get some aid on the subject just this morning via a SSRN bulletin.  Ron Wright (WFU), a regular guest-prawf here, has just posted on SSRN a draft of what looks like a great article that will help us think through some of these issues with more clarity.

Here's the abstract.

How Prosecutor Elections Fail Us, Ohio State Journal of Criminal Law, Forthcoming
RONALD F. WRIGHT, Wake Forest University - School of Law

There are several methods for holding prosecutors accountable in this country. Judges enforce a few legal boundaries on the work of prosecutors. Prosecutors with positions lower in the office or department hierarchy must answer to those at the top. But none of these controls binds a prosecutor too tightly. At the end of the day, the public guards against abusive prosecutors through direct democratic control.

Does the electoral check on prosecutors work? 

There are reasons to believe that elections could lead prosecutors to apply the criminal law according to public priorities and values. Voters choose their prosecutors at the local level, and they care enough about criminal law enforcement to monitor the work of an incumbent. The conditions, in some ways, are promising.

Yet the empirical reality of prosecutor elections is not so encouraging. A national sample of over 2000 outcomes in prosecutor elections - described here for the first time - reveals that incumbents do not lose often. The principal reason is that challengers do not come forward very often, far less often than challengers in state legislative elections. Uncontested elections short-circuit the opportunities for voters to learn about the incumbent's performance in office and to make an informed judgment about the quality of criminal enforcement in their district.

Even in those exceptional campaign settings when the incumbent prosecutor faces a challenge and is forced to explain the priorities and performance of the office, elections do not perform well. This article surveys the typical rhetoric in prosecutor election campaigns, drawing on a new database that collects news accounts of candidate statements during prosecutor elections. Sadly, these campaign statements dwell on outcomes in a few high visibility cases, such as botched murder trials and public corruption investigations. Incumbents and challengers have little to say about the overall pattern of outcomes that attorneys in the office produce or the priorities of the office.

Final and New Drafts

I hope everyone had fun celebrating Valentine's day, or not, if that's your preference. Among other things, I had the chance to see the Clint Eastwood movie, Gran Torino.  I thought the acting was a bit forced at times (I'm not sure growling counts as acting), but the movie crescendoes in a very powerful way, especially, I imagine, for fans of Christology. Eastwood's movie-making the last decade or so has been reliably beautiful and so this might be one worth visiting the cinema for, rather than waiting for Netflix. I have it on good authority, by contrast, that Confessions of a Shopaholic and He's Just Not That Into You are ones that can wait until their release on cable.

In any event, I thought I'd just post a quick note to say that the final version of Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction is now available on SSRN or in your local January 2009 issue of the Cornell Law Review.  I will at some point soon be writing a short version of it for the new collaboration among law reviews called The Legal Workshop.*  I hope and invite others to respond to the final version in that forum (or elsewhere).  I've also just posted on SSRN a new working draft of the successor piece to Retributive Damages, entitled "How Should Punitive Damages Work?"  This piece will be coming out later this spring and I only have a couple weeks left before I have my last chance to touch it again, so if there are any folks who have written on or near the subject and wish to weigh in with comments or suggestions for further reading/citations, I would welcome your input via email. 

Last, I've also posted a newly revised and working version of Executing Retributivism: Panetti and the Future of the Eighth Amendment up on SSRN. As with the other working paper, I welcome comments by all and especially from those who have worked in or near the area (of the death penalty, Eighth Amendment generally, and/or punishment theory) and might wish to provide comments or suggestions for further reading and citations (including your own!). My apologies in advance if I neglected to address your work or those of your colleagues--please help me out before it's too late...

   

*This is what I heard about this new enterprise: Legal Workshop, a new online project, is a free electronic resource created and controlled by many of the nation's top Law Reviews, including the Harvard Law Review, the Stanford Law Review, and the NYU Law Review.  Its chief goal is to increase online exposure of published articles. For the Legal Workshop, all of our authors now prepare, with the help of the Executive Articles Editor with whom they are paired, a shortened version of their Article (1500-4000 words), without footnotes, analogous in style to a very brief essay or newspaper op-ed.

Should criminal omissions liability attach in the face of victim's apparent consent?

My co-authors and I are just putting the finishing touches on Privilege or Punish, our book about how the criminal justice system uses a defendant's family status to both create and exempt defendants from liability or enhanced punishment. Thus, it's too bad that we are too late in the process to draw upon this fascinating story brought to my attention by Rachel Barnhill, one of my students in crim law this semester. It's the story of an elderly man who claims to have been following his wife's wishes not to call for medical assistance. Should the status-based duty to perform costless rescues apply when the rescuee apparently doesn't want the help? It looks like the hubby will be charged with a criminally negligent manslaughter charge. My guess is that the jury will reject the prosecution if it goes that far. But it's an interesting question about the relationship between consent of victim and the obligation to intervene that typically attaches in spousal or parent-child relations. One concern in this context is that the defendant will justify his omission by claiming that the victim consented to or insisted on his inaction, and that becomes a tricky space to navigate from an evidentiary perspective. Perhaps that defense should be rejected then in cases where there is no independent evidence or third party who can verify the consent's freely given nature.

What say y'all? The story after the jump.

Sheriff's officers have arrested an 82-year-old man after his wife died on the floor of their home, apparently about 10 weeks after she fell out of bed and was unable to get up.
John Klein was arrested for investigation of second-degree manslaughter after he called 911 on Monday to report that his 73-year-old wife Pia had no pulse.
Klein told Spokane County sheriff's Detective Jim Dresback that his wife of 52 years fell out of bed around last Thanksgiving, Dresback said in court papers filed Tuesday.
According to that account, Klein had been working outside, came in and found his wife lying next to the bed in the doorway of the master bathroom. He said she cried out in pain and told him to leave her alone when he tried to help her up.
After that, Klein said he left her lying on her left side on the floor for the next 10 weeks, bringing her food and water, giving her medications and cleaning her but did not summon any medical aid. The woman had no significant medical problems, Klein told detectives. It was not clear what medications he gave her.
Klein's bond was set at $200,000 at his initial court appearance Tuesday. Klein told the judge, in his words, "I don't consider it to be my fault. She did not want help." It was not immediately known if he was represented by a lawyer.
Klein told Dresback the couple have an adult daughter who lives in North Carolina and normally talks with them by phone every other weekend. Asked if the daughter spoke to her mother after the fall, Klein said his wife had told him to tell the daughter she was sick.
When Klein was asked whether his wife had asked him to summon help for her, "he looked down for about five or six seconds, then said, 'No,"' the detective wrote. In the affidavit, the detective alleged Klein was criminally negligent in failing to summon medical help.
Klein reportedly told the detective he thought his wife would eventually get up and start walking on her own, adding he told her to exercise while she was lying on the floor.
The woman apparently had been lying naked on the stained, carpeted floor and had several large ulcers on her left hip and left leg, "consistent with her having been lying on her left side for an extended period of time," the affidavit said. A soiled pillow lay in the bathroom doorway.

13 year-olds in prison for life...and the Eighth Amendment

In today's Times, Adam Liptak has a very interesting piece detailing the situation in which a defendant was sentenced to life without parole for a crime he committed at age 13. A quick overview:

In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape. The victim testified that her assailant was “a colored boy” who “had kinky hair and he was quite black and he was small.” She said she “did not see him full in the face” and so would not recognize him by sight. But she recalled her attacker saying something like, “If you can’t identify me, I may not have to kill you.” At his trial, Mr. Sullivan was made to say those words several times. “It’s been six months,” the woman said on the witness stand. “It’s hard, but it does sound similar.” The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole.

Sullivan's case is now winding its way through the courts; according to Liptak, his lawyers have recently petitioned the Supreme Court to determine whether a sentence to die in prison is a constitutionally compatible response to a non-homicidal crime committed by a 13 year old. (I tried a quick search for the cert petition but didn't find it; if anyone has it, please forward it along.)  My views after the jump.

My quick sense is that although the Court's Eighth Amendment non-capital proportionality review has been relatively stingy in light of Ewing v. California, 538 U.S. 11 (2003), this case would be a good candidate for reviewing and revisiting those principles and how they apply. For one thing, remember that Ewing was a recidivist with some serious priors (a robbery and several burglaries). He was a grown-up when he committed his crime, and he was eligible for release after 25 years under the 3 strikes rule. By contrast, Sullivan was barely a teenager, and as far as I can tell, without any priors. Justice Kennedy's concurring opinion in Harmelin, which enunciated the now-controlling framework for analysis in proportionality review of non-capital crimes, addressed a non-recidivist who was tagged for life b/c of 600+ grams of cocaine possession. While the defendant there wasn't able to get relief under the 8A (a pretty kooky outcome), at least there the defendant was not 13 years old when he committed the crime. One last point: normally the SCT would look to see if there's a split to resolve among the circuits before weighing in. But as Liptak points out, outside Florida there are no persons in prison for life without parole for non-homicidal crimes commited at the age of 13. In Florida, there's only one other person who fits that criteria, though his conviction involved attempted murder. The fact that Florida is an outlier here may be a good indication that by objective criteria this is a grossly disproportionate response. (Cf. Coker v. Georgia, where Georgia was an outlier with respect to executing rapists of "adult" women; the victim in Coker was 16--and married.)

I also think that in light of the communicative conception of retributivism that was embraced by a majority of the Court in its Panetti decision in 2007, there are certain restraints on punishment that the Supreme Court must embrace. As I argue in my forthcoming article on Panetti and the future of the Eighth Amendment, the Court's constitutional elevation of a communicative conception of retributive justice in Panetti has broad implications -- and beyond the capital context too. 

Punishment, under the Court's view now, requires that the defendant be a fit interlocutor for the communicative nature of punishment. The suggestion that a 13 year old satisfies that fitness requirement in the way that a mature adult does is difficult to accept. Moreover, by insisting on competence and guilt as jointly necessary criteria for punishment, Panetti entails a "negative retributivism" constraint on state punishment. That constitutional constraint supervenes on other legitimate penological objectives such incapacitation or general deterrence. Negative retributivism means that one can only be punished if one is guilty and only as much as one's offense reasonably permits by reference to (desert) or (what comparable offenders with comparable offenses receive); I recognize that the materials in parentheses are not identical, but I offer the second one as a way to care for evenhandedness across cases, which is an important feature of legal accounts of retributive justice. 

Thus, putting aside for now the very pronounced and reasonable concerns that he had a flimsy trial, Sullivan cannot constitutionally be punished in excess of what would be determined to be reasonably proportionate to the severity of his offense. Given that we punish adults with much more severe crimes and far worse records with far less severe punishments, both in and outside Florida, it seems clear to me that Sullivan should be able to raise these Panetti-inspired arguments with some success.  (Oddly enough, similar arguments of mine were found in Panetti's briefs to some effect). Of course, these are the claims that I think would follow from Panetti's reasoning, properly understood and extrapolated. I invite the lawyers and scholars interested in the scaffolding beneath these claims to read the article, a draft of which can be found here.

The Shaming of John Thain

In this morning's NYT, one of my favorite writers there, Clyde Haberman, goes to town on John Thain, the Merrill Lynch CEO who's been recently deposed.  I understand the sense of frustration and anger; indeed, I'm a shareholder in Bank of America, which bought ML late in 2008 and has since declined precipitously. So it's no surprise to see popular anger (like Clyde's) over reports stating that Thain spent $1.2 million

to redecorate his office — purchases like an $87,784 area rug, a $68,179 19th-century credenza, a $35,115 commode and an $18,468 George IV chair. The rug alone cost the equivalent of nearly two years’ pay for the average worker in New York State. 

As Haberman writes, "If anyone should blush, you’d think it would be Mr. Thain." But Haberman wants the Thains of the world to be held up to scorn and shaming, despite my efforts to persuade him otherwise. My recent arch-nemesis appears to agree:

"Folks like John Thain are perfect candidates for public shaming on billboards and in the press," Professor Calandrillo said. “Their good name is what allows them to succeed in business. Once that is stripped, they have little left.” Others in business, he added, may then think twice about their own actions.

Elsewhere in the Times, however, we also see this bit of reporting on Thain's apparent misjudgments. First, he's stated his plan to reimburse the company for the renovation, whose costs include some other rooms besides his office. Second, and more importantly, it appears the story about Thain's distribution of bonus money is more complicated than reports initially suggest. 

Another point of controversy was Merrill’s decision to pay discretionary bonuses to its employees just a few days before the sale to Bank of America closed — considerably earlier than such bonuses were paid out in years past. In the memo, Mr. Thain appeared to challenge Bank of America’s suggestion that Merrill alone was responsible for the earlier-than-usual bonuses. He said the timing, composition and size of the bonuses were all “determined together with Bank of America.” In the interview, he said that Bank of America even mandated that more of the bonus be paid out in cash rather than stock. Bank of America has countered with its version of the bonus affair, telling The Financial Times: “We never said we didn’t talk with them about it. But, in the end, it was their decision and they informed us of it.”

All this is to say that we'd be better off waiting patiently until all the facts are found before rushing to extra-legal judgments culminating in "stocks" and cyber-pillories. There's always time for cool recrimination later...

Update: Over at Co-Op, Danielle Citron notes with greater specificity the dangers of even the privately-instigated shaming punishments, alerting us to the fact that shaming the Thains of the world can be "particularly potent in our networked age: online and offline shaming can ruin reputations, produce privacy invasions, and lead to offline stalking and physical violence."  She develops that argument in much greater detail in a very interesting piece entitled Cyber Civil Rights, which appeared in the BU Law Review a few months ago and which you can download here.

Is the Obama Administration More Geek Friendly Than Any Previous Administration?

The title of this post was roughly the topic of conversation I had two weeks ago with a reporter from the UK's Times Higher Ed, just as I was headed to San Diego for AALS. Of course, by "geek friendly" I simply mean prone to use more academics instead of folks in the "real world."  At the time, my thought was the Obama administration would have more academics on staff in high positions than the Bush Administration, but it wasn't clear to me that there were more than, say, the number in the Clinton Administration. 

I remembered that Bush 43 had Yoo, Dilulio, Greg Mankiw, Glenn Hubbard and some other economists, as well as Condi Rice. None except Rice was a Cabinet officer and Rice seems like a "discounted" academic b/c immediately prior to her appointments as NSA and SecState, she was in academic administration for seven years. By contrast, and just off the top of my head, Clinton had Reich, Donna Shalala, & Larry Summers in Cabinet offices; moreover, Laura Tyson, Drew Days, and Walter Dellinger had senior non-cabinet positions too. And of course, 42 picked at least one former prof turned judge to SCOTUS (Breyer). I could be wrong; maybe among the lower levels of staff, there were as many academics on the Bush policy team as there were on Clinton's. But Clinton certainly seemed pretty open to having a bunch of profs nearby. The spirit of 43 seems in retrospect comparatively less ... prawfy--at least by my lights.

At least initially, it didn't seem like the Obama administration would be unusual prawfy compared to Clinton's.  But now, with two more weeks past, it seems like there is a decisively more prominent role for academics with 44.  This article in the Times Higher Ed, which quotes me, notes the following:

Robert Gates Secretary of Defence - former head, Texas A&M University

Dennis Blair Director of National Intelligence - professor of strategic leadership, Dickinson College and US Army War College

Lawrence Summers Chair of National Economic Council - former head, Harvard University

Elena Kagan Solicitor General - dean, Harvard Law School

Steven Chu Secretary of Energy - professor of physics, University of California, Berkeley and Nobel laureate

Leon Panetta CIA Director - distinguished scholar, California State; professor, Santa Clara University

Christina Romer Chair of Council of Economic Advisers - professor of economics, University of California, Berkeley

Dan Tarullo Federal Reserve Board - law professor, Georgetown University

Dawn Johnsen Head of Office of Legal Counsel - professor of law, Indiana University

The piece, however, leaves out a number of folks. Again, just off the top of my head:  Trevor Morrison, Alison Nathan, Neal Katyal, Austin Goolsbee, Marty Lederman, Dan Meltzer, Einer Elhague, David Barron, and ... Cass Sunstein. And did I read somewhere that Ken Mack is going to be the staff historian at or near the Oval Office? And that Orin Kerr will be nominated as a late-addition to the bench in a gesture to Republicans for passing the stimulus package? :-)

Of course, having academics around may not be an "unqualified human good."  But putting that aside, I'm curious whether those with a longer memory of history think there was a more prawf-friendly administration than the current one. Is it the case, as Dan Kahan "put it" recently in Spanish, that Durante la campaña, Obama decía que éste era nuestro momento, pues es exactamente lo que piensan los académicos: está hablando de nosotros? 

Yes we can...but should we?!

What on earth am I here for? Why, to bestow a token of appreciation for letting me sell The Purpose Driven Life in Aleppo, of course.

So, as I've blogged before, I don't always agree with Christopher Hitchens about the application of principles of charitable interpretation. But in two recent essays, Hitchens has persuaded me that Rick Warren, despite his ostensible virtues, is not the right person for the Inauguration, notwithstanding Paul's strong anti-anti-Warren post here.  The first reason, which is somewhat familiar, is Warren's anti-gay statements, put sharply into larger context by Frank Rich.  (I admired Rich's arch observation that "fighting AIDS is not a get out of homophobia free card.") But Hitchens, in his first Slate essay on the topic, pushes the let's-revisit-this-man's theology claim a bit further--so as to antagonize more than just gays and their supporters. With some evidence to underpin them, Hitchens asks the following questions about Warren's interior disturbances:

• Will Warren be invited to the solemn ceremony of inauguration without being asked to repudiate what he has directly said to deny salvation to Jews?
• Will he be giving a national invocation without disowning what his mentor said about civil rights and what his leading supporter says about Mormons?
• Will the American people be prayed into the next administration, which will be confronted by a possible nuclear Iran and an already nuclear Pakistan, by a half-educated pulpit-pounder raised in the belief that the Armageddon solution is one to be anticipated with positive glee? 

I'm not overwhelmed by this set of questions. 

The first question would place a litmus test that would to my mind unduly intrude on Warren's liberty of conscience. If Warren's benediction is innocuous, it shouldn't much matter that he also holds unreasonable views of access to powers invisible. The second question reveals a guilt-by-association charge, which has, I think, proved itself to be an overplayed drama. Hitchen's third question seems to suggest that Warren's world-view could have some impact on Obama's foreign policy, but that's ... unlikely.  I don't think we've much basis for worry that Warren will exert influence on Susan Rice, Hillary Clinton, Rahm Emanuel, or the other advice-givers in or near the West Wing. 

The second essay by Hitchens, however, raises a more lacerating set of concerns than those posed by his religious views. They largely stem from things said during and after Warren's export business in eschatology to the Syrian dictator, Bashar al-Assad. Hitchens writes:

"Syria," [Warren] told his viewers back home by video, is "a moderate country, and the official government rule and position is to not allow extremism of any kind." This is a highly original way to describe a regime that is joined at the hip with the Iranian theocracy, that is the patron of Hezbollah in Lebanon, and that is the official and unabashed host of the fugitive Hamas leadership whose military wing directs massacre operations from Damascus itself. (One might also add that the Syrian Baath Party's veteran defense minister, Mustafa Tlas, published a book under his own name that accused Jews of using the blood of non-Jewish children for the making of those ever-menacing Passover matzos. I suppose it depends how you define extremism.)  ...

Our good pastor also found the time to tell his captive audience—if I may use such an unoriginal phrase in a literal way—that 80 percent of his countrymen opposed the administration's policy in Iraq. Assume yourself, dear reader, to be one of that possible 80 percent. Did you ever ask to be spoken for by Warren, who was a guest of a regime that sponsors al-Qaida infiltrators in Iraq, or to see him denounce the administration in front of an audience of Syrians that had no choice but to listen to whatever it was told? For shame.

No doubt there are synergies available that Obama should catalyze between Warren's minions and centrist and progressive minyans. That said, the selection of Warren is not well understood if only understood in instrumental terms, a point Paul trenchantly made. But along with that recognition must be alertness to the fact that the Who-should-bless-the-Inauguration question is not the same as who momentarily has the President's ear on certain issues. Indeed, it's precisely because the inauguration sparks the onset of a new era for the nation that the situation's optics must be examined carefully. And with the picture above, and the statements Warren made during and about his trip to Syria, well, let's just say that Warren's star has dimmed. 

Photo: AFP PHOTO/SANA/HO

Gershon, Antigone, Madoff, and Punishing Family Status

First, since the following is apropos the lure of family ties, let me begin by extending congratulations and mazel tov to co-author/co-blogger Ethan Leib and his family on the birth of a baby boy yesterday morning. Gershon: welcome to the burgeoning Prawfs family!

Second, as acknowledged yesterday, I have been an intolerably bad blogger the last few months. While still under the deluge of edits on various projects, I hope the situation will improve soon, and in the meantime, I wanted to quickly draw attention to one aspect of the Bernie Madoff scandal that's been of particular interest to me: the fact that he was turned in by his sons. There's still some question as to whether Madoff's Ponzi scheme was truly a work of solo endeavor, or whether he had to bring in others to help swindle so many of so much. Some folks might believe that the sons had to be involved also despite their involvement in facilitating the apprehension of their father. But according to a recent news account having to do with whether Madoff acted alone:

Investigators were also expected to look at the potential involvement of several Madoff relatives who worked for his firm, including his brother, two sons and others who worked for his various business entities. His wife has also come under scrutiny. To date, however, they also have not been formally accused of any wrongdoing. The law firm representing Madoff's sons, Andrew and Marc, released a statement saying they first learned of the fraud just days ago, when their father tearfully confessed, and immediately turned him in. The two are said to have worked predominantly in another division of their father's company, not in the secretive unit that handled investor money.

The story of Madoff's arrest intersects with some of the issues that motivated the project I'm doing with Ethan Leib and Jennifer Collins on the criminal justice system and the quirky role that family status plays in it.* When I initially started thinking about this topic some three or four years ago, it was largely through the prism of what I thought of as the Antigone problem: the conflict citizens (like Madoff's sons) have between loyalty to family members and duties to the state. As Ethan and Jennifer came aboard the project, we realized in concert that the site of conflict between family and criminal justice was more complex and layered than just the classic Antigone problem, and from that realization, we changed our focus over time to study the various ways the criminal justice system distributes both benefits and burdens to defendants based on their family status or family ties and responsibilities. The Antigone problem, crudely reflected in a way by the Madoff fraud bust, sort of fell away from being our sole object of study, and in fact, virtually recedes from focus other than playing a role in motivating dramatic interest in the connection between family, crime, and punishment.

In any event, I can now report that Punishing Family Status (PFS), the second part of our efforts which studies and proposes reforms to the burdens placed on defendants on account of family status, is now available in final form on SSRN and on Westlaw. (I've also just received my offprints; if you'd like a hard copy, please email me your mailing address, especially if you didn't receive my last batch of offprints.) PFS is the basis of a mini-symposium in the Boston University Law Review's December 2008 issue. The issue (and the offprint) includes a set of fascinating responses by our own Rick Hills and Michael O'Hear, and a reply by us. Btw, make sure you check out the BU LR December 2008 issue so you can also see Carissa Hessick's very interesting piece, which looks at the role of prior good acts in sentencing  -- more on that in another post perhaps.

*We just received the book proofs for this project, which comes out in a few months; you can pre-order it here at Amazon.

 

Executing Retributivism, redux

I'm home now from the autumnal delights of Falls Village, CT only to be hobbled by terrible sniffles just before class begins this afternoon. Alas, I'm not the Canadian I once was. In any event, I meant to get this up on the blog last week, but better later than never. For the Eighth Amendment fans in the audience, I have recently put up a substantially revised and expanded version of my article, Executing Retributivism, up on SSRN (and forthcoming this spring). There's still a good bit more work to be done toward the end (not to mention editorial work below the line throughout), but I have tried to improve and clarify the argument that Panetti v. Quarterman, a case the SCT decided in 2007, has substantial implications for the constitutional regulation of both capital and non-capital punishments, implications that have not been sufficiently appreciated so far.

To be more clear about my intervention, I am not arguing that the holding in Panetti requires the end of capital punishment or the end of the warehousing of the mentally ill in prisons, to name just two. Rather, my claim is that the ratio decidendi of the decision should lead lower courts and defense lawyers to revisit the rationales currently used to justify some of these practices, which are, to say the least, problematic from a retributive perspective. As there is still time to revise in light of feedback, I'd be grateful for anyone's off-line thoughts.

I have also put up new drafts of some other works in progress: Retributive Damages; How Should Punitive Damages Work?; and Punishing Family Status (with Ethan and Jennifer Collins). The first and third pieces are close to finished (coming out in January and December respectively), but the second piece is still very early on and I'd be grateful for comments on the piece, which offers a sketch of how to redesign the architecture of punitive damages.

Criminal Justice and Family Ties in Action

In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, the book I'm doing with Ethan and Jennifer Collins, the central questions we ask are what role does and should a defendant's family status play in the criminal justice system. Despite a wide array of family ties benefits and burdens, where defendants are treated differently on account of their family ties and responsibilities, we are more often than not quite skeptical about the use of family status itself as a basis for distributing these benefits and burdens. Through the course of our research, we've become perennially interested in the various ways family interests intersect with those of the criminal justice system.

Today, thanks to the indispensable Doug Berman, I just came across US v. Woods, this fascinating 5th Cir opinion vacating a supervised release condition (SRC) imposed by the district court on a defendant prohibiting her from living with persons she was not married to or related to by blood. The district court's SRC is not a straightforward benefit or burden under our analytic framework. The defendant is appealing the SRC and so to her it's not a benefit -- although if the alternative were prison, perhaps she would view it as such. Thankfully, the appellate court realized that prison in this case is not the appropriate baseline to use.  (Nor is it an instance of punishing the defendant's family status; the defendant doesn't face a unique burden attributable to her family status, the way say, omissions liability attaches to spouses but not paramours.)

Despite the difficulty in categorizing this particular SRC as a family ties benefit or burden, I am heartened to see that the higher court realized why this SRC was not sufficiently narrowly tailored to achieve its underlying purpose. One of the primary normative goals we have in our project is to persuade courts and policymakers to move away from relying on family status when making decisions in the criminal justice system about benefits or burdens and instead examine a broad range of caregiving obligations. The lower court's reliance on "ceremonial marriage" and "blood" relationships to determine who can live with the defendant upon release is indicative of the regime we're seeking to overthrow in the law...and I'm very pleased to see we have allies on the Fifth Circuit in our endeavor.

Executing Retributivism in real life?

Yesterday, I blogged about Executing Retributivism, a project I'm working on that discusses the communicative nature of retributive punishment. The article examines the untold implications of the Supreme Court's decision last year in Panetti v. Quarterman for Eighth Amendment review of capital and non-capital cases. In Panetti, the Court insisted that a defendant have rational understanding of why he is being punished before he can be executed. It's not enough, in other words, that the defendant be merely aware that he is being punished; he must rationally understand why he is being punished, and if he doesn't, he cannot be executed. As I argue in the piece, that rational understanding requirement seems to me to make sense only in light of a theory of punishment that seeks to preserve the opportunity for the defendant to internalize the values the state is effectuating through its imposition of punishment, and to evidence that internalization in response to the punishment. Thus there is a real tension, I argue, between a rational understanding requirement and the imposition of the death penalty; similarly, there are important implications for revisiting the current practice of warehousing the presently incompetent in prisons too.

Anyway, I mention this (again) because it seems relevant to the fascinating story in today's NYT about Willie Bosket, an offender who has been living in solitary confinement for over ten years in NY state prison. Bosket has killed and attacked people from a young age both in and outside of prison. Consequently, he's not scheduled to re-enter general population until 2046, unless the evaluations indicate that it's safe for others to be around him again. Given the tone of the story, it would seem that Willie's beaten his demons for the most part, but he still acknowledges that there's a risk he might pose to others. What I found especially interesting are his apparent remorse for what he's done while he's been in solitary confinement and his claim that he'd rather die at the hands of lethal injection than spend more time in the "hell" he's living. Putting aside the harshness of his current conditions, and whether they are appropriately visited upon Bosket, it seems to me that the internal struggle Bosket undergoes on a daily basis is precisely the reason why the death penalty is anti-communicative and why internalization and the opportunity to evidence that internalization day by day is the better retributive strategy to communicate the state's reprobation of the defendant's wrongdoing. The Bosket story also raises a cluster of other issues--definitely worth a read.

Random Updates on Punitive Damages, Eighth Amendment and Family/Criminal Law Work

Hope everyone had a good weekend following the Wall Street crisis and the Noles game. I spent most of my time the last few days revising my draft of Retributive Damages, which I've just uploaded to SSRN over here. As I've mentioned before, this paper is the first in a series of three papers proposing a new way to think about punitive damages. The first one is coming out this January in Cornell Law Review, and the draft on SSRN reflects some of the edits I've received from the first round of editing there.  The sequel to that paper, How Should Punitive Damages Work?, is coming out later in the spring in the Penn L. Review. I'll be presenting the sequel paper this Friday afternoon at the Canadian Law and Economics Association in Toronto (and I hope local Prawfs readers will get in touch with me there; I'll be hanging out with Dave Hoffman and Erik Knutsen). With some luck, there will be some discussion of that sequel paper in Penn's excellent online companion, Pennumbra. (Please let me know if you're interested in participating.) In the next few months, I am also hoping to get the third part of the trilogy ready for the spring submission cycle, tentatively titled, Punitive Damages and Complex Litigation, and a book proposal unifying these ideas in a project called Fixing Punitive Damages.

I've also put up a lightly revised draft of Executing Retributivism, a paper I mentioned a few weeks ago about the implications of the Supreme Court's decision in Panetti v. Quarterman for Eighth Amendment review of cases involving both capital and non-capital punishments. I'm pleased to say that the piece will come out as an article in Northwestern U. Law Review in the late spring. In the next few months, I plan on growing the arguments in Part IV.A of the paper (about the implications of "negative retributivism" for non-capital punishment), which right now, are largely allusive in nature. I'll be presenting a version of this paper at Amherst College at an Austin Sarat-fest in a couple weeks and then revising it in light of comments around early to mid October. As a result, I'll be especially grateful for any comments that roll in prior to October 12. Also, Northwestern has an outstanding online companion, Colloquy, which sometimes publishes in both the print volume and online those responses to articles in the print volume. So if you're interested in participating in a Panetti-inspired forum, let me know.

Last, Ethan, Jennifer Collins and I are in the home stretch of getting our book manuscript together for Oxford University Press. The book is called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. If you have the time and inclination to read it in draft, we'd be very grateful for your comments; we'll probably have a draft to circulate in the next week or so. The book is scheduled to appear in the early spring of 2009, and draws on but revises much of the work we've done here (our Illinois piece) and here (our BU piece forthcoming this December). The BU piece, Punishing Family Status, is the subject of a mini-symposium with wonderful and provocative responses by Rick Hills and Michael O'Hear. Michael's response is available in draft here. Our draft reply, Voluntarism, Vulnerability and Criminal Law, is available here. Come 2009, keep your eyes open for a Privilege or Punish Roundtable coming to you. We'll have a great group of people to talk about the book and its themes at Law and Society in Denver (tentatively Naomi Cahn from GW, Elizabeth Scott from Columbia, and Melissa Murray from Boalt) and at SEALS in August (tentatively Alafair Burke from Hofstra, Jack Chin from Arizona, Alice Ristroph from Seton Hall, and Bob Weisberg from Stanford).

Executing Retributivism is up on SSRN

Just a quick note to point out that I've placed on SSRN a draft of a new paper I earlier discussed on the blog. The paper is called, at least for now, Executing Retributivism. Unlike most of my work, which is largely normative legal theory applied to discrete policy issues, this piece is quite a bit shorter (!) and more interpretative in nature: that is, it furnishes a close read of a relatively recent case of SCOTUS, Panetti v. Quarterman, and tries to situate that case's reasoning within the theoretical framework I've deployed before in the context of the death penalty. I argue that this decision has far greater consequences than previously realized if the decision is read properly and extended consistently. Here's the abstract:

In Panetti v. Quarterman, a Supreme Court case from last year about the standard of mental competence required for execution, the Court demanded that the defendant must rationally understand why he is being killed. As this Essay explains, the Court’s “rational understanding” requirement only makes sense in light of a larger theory that understands state punishment primarily as a communicative and retributive encounter between the state and the offender. Once contextualized within that theoretical framework, the Court’s reasoning raises two profound and insufficiently appreciated consequences.

First, the Panetti decision upends the Court’s Eighth Amendment jurisprudence requiring neutrality among sentencing purposes selected by the states. Rightly read, the case elevates “negative retributivism” to a place of primary importance in constitutional criminal law. Thus, judicial consistency with Panetti necessitates substantial revision to the treatment of claims of actual innocence, to the warehousing of mentally ill persons in prisons, and to judicial assessments of sentencing proportionality. Second, Panetti’s reasoning quietly erodes the rationale for the continued use of the death penalty in the United States. In short, once properly construed, Panetti, a seemingly sleepy case about a doctrinally narrow issue, changes everything.

How Should Punitive Damages Work?

Update 8/31: I'm moving this up to save having to write a new post. I just wanted to share the exciting news that I've just accepted an offer to publish this piece in the University of Pennsylvania Law Review in volume 157 (spring 2009 sometime). Interestingly, the piece didn't get picked up through an expedite, which should hearten those authors who wonder whether and how much "law review strategery" is necessary.  I owe a giant thanks especially to Jason Solomon and the attendees at Prawfsfest! at Hofstra, who helped me see the need to restructure the piece entirely in the last month. Once I get some more revisions on that death penalty paper done in the next few days, I will blog about this paper some more.

***

I'm very excited to announce that I've recently uploaded to SSRN a working draft of my new paper, How Should Punitive Damages Work? You can download it here. It's still a work in progress but I hope to have solved a few policy and constitutional issues in it. As the sequel to my Retributive Damages piece coming out this January in Cornell LR, it tries to lay out in more careful detail how to build a better punitive damages regime. This particular piece focuses on issues common to all kinds of punitive damages cases.*

After providing some background, I explain that there are three normative goals that punitive damages can and should achieve:
1) the public interest in retributive justice, which is vindicated through what I call "retributive damages."
2)  empowering victims with a mode of recourse that permits but does not obligate the victim to vindicate the injury to his/her dignity interest, an interest that is not otherwise compensated under traditional compensatory damages, and which I, following some Commonwealth jurisdictions, call "aggravated damages."
3) the pursuit of cost-internalization or "optimal deterrence" the extent to which it is permitted after Philip Morris. These are called "deterrence damages."

To make punitive damages work well, I argue that we have to separate retributive damages from damages meant to achieve deterrence or to vindicate the victim's dignity and autonomy interests. Because these purposes are distinct, a jurisdiction that conflates them risks both under- and over-protection of various defendants. Once we correctly understand these distinct purposes, our institutional design for civil damages should map these values appropriately.

The Article begins that task, first by explaining why and how defendants should enjoy certain procedural protections depending on which purpose the damages vindicate, and second, by addressing the critical implementation issues associated with this pluralistic scheme of extra-compensatory damages: insurance, settlement, and taxation.

The argument is largely a prescriptive one: that is, if you agree with these rationales, which have been separately defended in the literature, then here's how to build an attractive pluralistic damages regime. However, I also want to ensure that this pluralistic extra-compensatory damages regime is in fact  consistent with the Supreme Court's various cases, so there's an element of doctrinal analysis too.

Indeed, there are a number of constitutional arguments I make that counter, on the one hand, arguments by those like Tom Colby, who thinks that "retributive damages" would require the panoply of criminal procedural safeguards, and on the other hand, arguments by those like Marc Galanter and David Luban, who think the fact of privately initiated lawsuits for punitive damages means that relatively nothing in the way of procedural safeguards are constitutionally required or normatively justified.

My own view is that both of these positions are wrong.  I explain why after the jump.

In short, pace Colby, retributive damages are not criminal fines because they don't entail criminal convictions or trigger the cluster of collateral consequences that typically attach to all sorts of convictions. But they are, contra Galanter and Luban, nonetheless a rebuke of the defendant that involves elements of both public censure and punishment, albeit of a civil, not criminal, kind. Thus, for reasons I elaborate in Part III of the paper, retributive damages are best understood as an intermediate civil sanction that require (constitutionally and normatively) an intermediate level of procedural safeguards, that is, a level falling roughly between what is due defendants facing on the one end, compensatory damages, and on the other, criminal fines.  Where there is no obvious "intermediate" level, some analysis of how the safeguard works to advance the reduction of Type I or Type II errors is required. Along the way, I also explain which procedural safeguards would be appropriate to implement "deterrence damages" and "aggravated damages."

I note that this version of my paper includes a bunch of claims that critique Tom Colby's SSRN draft (from June 27th, 2008) of his forthcoming Yale LJ piece. I shared my draft with Tom yesterday (8/27) to make sure he was comfortable with the way I was characterizing his arguments, and after reading it, he informed me that in the non-public version he's currently editing, he had already made some changes in light of some earlier comments I sent him, and that, in light of the draft I sent him yesterday 8/27), he is now planning on making a few more changes that are responsive to my points. I mention this chiefly to signal that I will revise my draft a bit later on to make sure it addresses the changes Tom plans on making to his final draft.  But as of now, the version of my article on SSRN addresses the June27th version, which is available here. His SSRN link is here in case you want to see subsequent drafts. Once his final paper comes out, I'll be sure to post a revised version of mine that avoids any confusion. I confess that the moving target aspect of some of this exchange is a bit cumbersome, but I guess when SSRN gets you tomorrow's research today, you have to accept the consequences! 

* I hope to finish the series of articles this spring by writing something tentatively called, Punitive Damages and Complex Litigation, which addresses the specific questions associated with misconduct by entities and misconduct that affects multiple parties within and across jurisdictional lines. I'm planning on putting the three pieces together into a book, tentatively called The Punitive Damages Mess: How To Fix It.

Jack Balkin, Soul-Killer: Or why "theoretical sophistication" is bad for the orginalists

That's the provocative claim, at least, that Steven Smith (USanDiego) makes in his new essay on SSRN, That Old-Time Originalism. The soul whose death Jack instigates by his mere presence is originalism. On Smith's view, if Jack and like-minded thinkers are originalists now without sacrificing little or nothing in the "conversion," then that spells trouble for originalists, rather than provides a basis for jubilation because the club of originalists is bigger now.

Indeed, Balkin’s deployment of the distinction between “expected applications” originalism and the “text and principle” variety of originalism is little more than a rechristening of the “concept/conception” analysis offered by Dworkin decades ago, and is used to similar effect. But if Balkin can be an originalist by virtue of favoring interpretation based on the “principles” contained in constitutional provisions rather than “expected applications,” there is no apparent reason why Dworkin should not be an originalist by virtue of advocating fidelity to the enactors’ “concepts” rather than their “conceptions.”

In other words: Uh-oh, Ronnie's part of our club too now. According to Smith,  "the real harm [of such harmony among scholars] is that originalism is no longer available as a distinct approach to further (or at least attempt to further) the worthy purposes, noted above, for which it was devised– namely, constraining courts in history-grounded ways, and preserving the ability of democratic institutions to enact constitutional provisions with relatively definite and fixed meanings. That seems a regrettable loss (even for those who doubt originalism’s ability ultimately to provide what it promises)."   In the last ten years, there has been so much tumult and turmoil (and perhaps progress!) in the field of constitutional method(s) that it's been hard for non-specialists like myself to capture all of its particularities--though Larry Solum's done a great job keeping us abreast of each move on his blog. Smith's essay is a warm, funny and inviting segue to the conversation -- even if what he says will probably irritate some the participants to the conversation which he's interrupting. His conclusion, as I take it, is that people interested in the original understanding of the law are best off with undertheorized agreements to proceed together, and to only go up a level of conceptual abstraction when necessary to resolve practical disputes.

As I see it, there is a problem with such advice: given the capaciousness that Smith suggests describes the current originalism camp--and given that we are all purportedly originalists now--it will be hard to show that it's not pink elephants (or practical disputes) all the way down...a fact I think Smith is alert to by the end of his essay, but perhaps not quite willing to embrace. In any event, Smith's essay is highly worth your time and will give you a good flavor of the current state of play in the field that rightly or wrongly still has a disproportionately large effect on the intellectual life of many law schools.

"Legal epistemology is ninety per cent quantitative. The other half is qualitative."

The last month I've been developing a bit of an SSRN-induced brain crush on epistemologist Larry Laudan, who I've not met before, but whose recent work (all posted on SSRN) ought to be pressing the criminal justice commentariat to re-think a lot of our assumptions when we talk about trial errors and risk-risk trade-offs between Type I errors and Type II errors.  Laudan's work seems to be mining the rich vein of material earlier espied by UVA's Darryl Brown in his important work on cost-benefit analysis in criminal law, a field that also incorporates the Sunstein-Vermeule death penalty paper.  Here's a very short introduction to Laudan's intellectual agenda that he just put up entitled "The elementary epistemic arithmetic of criminal justice." And here's a link to "Deadly Dilemmas," a sharp short essay he wrote with Ron Allen from Northwestern that was part of a symposium.

Laudan's concern is to show us what we're doing when we consider risk-risk tradeoffs. As he writes, "The recent spate of exoneration studies puts us in a position to say that the lifetime risk of being falsely convicted of a serious crime is less than one-tenth of one percent. By contrast, data from the BJS suggest that the lifetime risk of being a victim of a serious crime is about 83%. In short, the average American is at least 90,000% more likely to be seriously victimized than falsely convicted of a serious crime. (I should add that, because I have interpreted the figures very unfavorably with respect to my own hypothesis, the more likely ratio of these risks is about 8,000:1, in which case one is 800,000% more likely to be a crime victim than the victim of a false conviction.)"  His major point so far as I can tell is to carefully demonstrate how the risk of being a victim of a serious crime by a criminal who's been  falsely acquitted is far greater than the risk of being falsely accused convicted of a serious crime, and that the current "innocentristic" approach to death penalty reform and other criminal justice issues may be obscuring the normative importance of that fact.

Having read only a few papers by Laudan, my sense is  that there are two areas that need amplification.

First, Laudan's number-crunching doesn't seem especially sensitive to the distributive patterns of these competing risks. In light of the prevalence of intra-racial crime, I can imagine that there's some story that might justify this silence. After all, if it turns out that the average young black male of the inner-city faces far greater likelihood of being victimized of a serious crime than being falsely accused of a serious crime, he might have good reason to see various criminal procedure and evidence rules shift in the direction Laudan proposes. On the other hand, if that story is not true, and in fact it's the old white woman who faces much greater likelihood of being victimized instead of being falsely accused, but the numbers don't look as powerful for the young black male, I can imagine that something more needs to be said before we all embrace the direction of Laudan's prescriptions.

The other thing that Laudan's papers, at least the ones I read, seem to occlude is the nature of the risk associated with the kind of crimes one may be victimized by. To my mind, the analysis Laudan is providing is not quite sufficiently granular.  For example, Laudan argues that we can derive using some public stats,  a "plausible measure of the gravity of a false aquittal." Using his calculations, he notes that "for any given false acquittal for a serious crime, we can anticipate >4 violent crimes that would have been prevented [during the time the offender would otherwise have been incarcerated] had the legal system not decided to let the guilty felon out of its clutches, either by explicit acquittal or by a dropping or dismissal of charges against him. Of those four serious crimes, 0.1 will be a homicide, 0.2 will be rapes and 3.7 will be armed robbery or aggravated assault."  Laudan seemingly lumps these crimes together to create a "serious crime" category, which should be compared to the risk of being falsely convicted of one of these serious crimes.

The problem is that I can imagine many people who would sooner suffer a aggravated assault or armed robbery  than be  falsely convicted of those particular "serious" crimes.  Not because  those crimes are easy to bear generally, but because the losses from those crimes may be insured and because the experience of those crimes is, from a victim's perspective, likely to be short. One can go about one's life afterward, in many cases, relatively normally.  By contrast, a false conviction for assault or armed robbery will, depending on the sentence, probably be much more lasting in terms of duration, stigma or other hardships for the falsely convicted defendant. Looking at rape and murder, many would view being victimized of those crimes as devastating, even if not identical. Additionally, being falsely convicted of rape or murder would also be incredibly difficult to bear, though probably less difficult.  So my sense is that the conclusions Laudan draws would be more powerful if we could isolate the nature of the risks being compared in a more particularistic way.   What Laudan's CBA should look at is the relevant risks associated with each of those crimes if we are to be persuaded that the risks we are trading off are remotely commensurable and that we need to contemplate more procedural rule changes.

**Btw, the title for the post comes from Laudan via Yogi Berra.

New Draft of Punishing Family Status on SSRN

I apologize for the relative dearth of blogging on my part the last few weeks. Between Vancouver and Prawfsfest! and SEALS, there has been surprisingly little time to start and/or finish a few articles and a book, and throw in some blogging. Though I have some thoughts and reactions I want to share on a host of topics in the near future, I'll use this post for familiar purposes :-)

Happily, Ethan, Jennifer Collins and I have just uploaded to SSRN a new draft of our piece, Punishing Family Status. You can download it here. This draft is a good bit more streamlined than the earlier draft and, unlike the earlier draft, it also addresses filial responsiblity laws, ie, a "family ties burden" in various states that require adult children to subsidize their indigent parents. We're also more explicit about the roles played in our account by voluntarism, vulnerability, and liberal minimalist approaches to criminal law. We were gratified to see that our paper was one of the top 10 most downloaded criminal law articles on SSRN the last few weeks -- but with only double digit downloads so far we have to assume everyone is enjoying the summer, or migrating to bepress to find their drafts!

The piece is currently scheduled to come out in the December 20098 (oops!) issue of the Boston University Law Review, where it will be the subject of a mini-symposium. Professors Michael O'Hear (Marquette; editor of Federal Sentencing Reporter) and Rick Hills (NYU) have graciously contributed shrewd and learned responses, and we have just finished a first draft of our reply. We will circulate that on SSRN pretty soon too. (Btw, big props/kudos to SSRN for making the uploading of new drafts a lot easier and quicker!!)

The current abstract of the piece appears after the jump.

This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of "family ties burdens" or laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental liability statutes based on failure to supervise, incest, bigamy, adultery, and failure to pay child or parental support.

Part II then develops a framework for the normative assessment of these family ties burdens. We first ask how these laws can properly be understood to be "burdens." We then look at these sites synthetically and contextually to uncover a pattern underlying most of these family ties burdens: namely, they tend to serve the promotion and of voluntary care-giving relationships. We endeavor to explain why this rationale is instructive and normatively attractive for the design of family ties burdens within a criminal justice system committed to what we call "liberal minimalism." As Part II concludes, we articulate the contours and basis of a critical scrutiny that should attach to family ties burdens in the criminal justice system.

Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status but are still capable of promoting and vindicating voluntary care-giving relationships.

New Version of Retributive Damages up on SSRN

Just a note to highlight that there's a revised draft of my article, Retributive Damages, up on the funky new SSRN over here. The article, which sets out a normative theory defending punitive damages as an intermediate sanction from a retributivist perspective, is coming out in January 2009 in the Cornell Law Review. I just sent this new draft to the folks at Cornell.  I also recently sent the draft to a bunch of the people whose work I cite, use or criticize to make sure they are happy with the way I've characterized their work. I probably left out some people, so if you find yourself in the paper or  not in the paper but think you should be, I'd be most grateful for any suggestions to improve it.

As I think I've said here before, this paper is the first in a series on "retributive damages." I'm presenting the second one, Implementing Retributive Damages, tomorrow at 130pm at a SEALS panel I put together on trends in punishment and privatization. Also on the panel will be Prawfs' Jason Solomon, and Kenworthey Bilz (Northwestern), and Ric Simmons (Ohio State). Kenworthey will be discussing developments flowing from her work on the puzzle of delegated revenge, Ric will discuss themes from his work on "private criminal justice," and Jason will be talking about new developments in his revenge against the USNews rankings work in the civil recourse theory of tort law. Should be very exciting.

I should add parenthetically that it looks like, after the feedback I received at Prawfstra, I will probably be spinning off a short piece from the current version of Implementing Retributive Damages. The current working title of the spin-off is Pluralism and Punitive Damages after Philip Morris. Depending on dates, etc., I will be happy and grateful for the opportunity to come talk about any of these projects this coming year if you're looking to round out your faculty workshop series.

Revisiting Cost Internalization and Punitive Damages after Philip Morris

More than a year ago, the Supreme Court handed down its decision in the Philip Morris case. I blogged about it at least a couple times. It's on my mind again, since I'm spending this month, among other things, revising my  Retributive Damages article (coming soon to a Cornell L. Rev. near you), and trying to finish drafting the successor article in the trilogy, Implementing Retributive Damages.

What I want to provoke here is some discussion about whether what Tom Colby (GW) and others call "total-harm" damages  extra-compensatory damages are permissible after Philip Morris if they are characterized simply as augmented damages for the purposes of cost-internalization or optimal deterrence (let's run those two notions together here, shall we?).  In Tom's latest work on punitive damages, which is forthcoming in Yale LJ, and is available in draft here (SSRN version of June 27, 2008), he argues that cost-internalization damages would and should be an available option (constitutionally speaking) so long as state legislatures or courts said they were not engaged in awarding "punitive damages," which is to say, so long as language of condemnation or language of punishment is not explicitly used.

My own view is that Colby's reading of the implications of Philip Morris for augmented or "total-harm" damages could logically be correct. But it seems a weird and ultimately, to my mind, wrong way to read what the litigants and the majority of the Court thought they were up to in the Philip Morris dispute and in this opinion. My extended thoughts are after the jump, and basically excerpted from my rough IRD draft. I invite your thoughts about the future of optimal deterrence/cost-internalization in the comments. (Btw, I will probably have more to say on Tom's article in other posts or perhaps in a response I might draft.)

Update: I made the mistake of conflating Tom's conception of "total-harm" damages with cost-internalization. As Tom kindly reminded me, his notion of "total-harm" damages, as used in his 2003 article, included a retributive component in addition to a deterrence signal.

To my mind, the proponents of the cost-internalization approach now face substantial difficulties on account of the Supreme Court’s recent decision in Philip Morris USA v. Williams. Implicitly repudiating the language of its TXO decision, which permitted punitive damages awards to consider the harm or potential harm from the conduct “as a whole,”[i] the Court reversed course. Writing for a 5-4 majority, Justice Breyer held that the Due Process Clause forbids punishing a defendant for harms to nonparties to the instant litigation because the defendant would not have the ability to “defend against the charge,” depriving the defendant of notice and imposing a substantial degree of arbitrariness and uncertainty in punishment.[ii] Thus, in assessing the putative excessiveness of punitive damages in a given case, a court must scrutinize whether a jury is punishing a defendant an amount of punitive damages that considers the harms actually suffered by strangers to the litigation.

By restricting the permissible scope of harm and potential harm, the Philip Morris decision now raises questions about whether full cost internalization is forbidden when establishing the amount of punitive damages. The ambiguity is subtle and has been brought to my attention by Professor Tom Colby’s forthcoming article on the subject.[iii] Professor Colby argues that states could constitutionally pursue “total harm” damages meant only to achieve cost-internalization so long as the state said there was nothing “punitive” to this cost-internalization approach. That would leave punitive damages, in his view, to pursue only the goals associated with what I have been calling "victim vindication" or "aggravated" damages.[iv]

The problem with Colby's narrow reading of Williams is that it reads the Court’s holding into, effectively, a nullity, giving with one hand a right that defendants would want and have fought repeatedly for and then stripping away the value of that right with the other hand. It’s hard to believe that the Court and litigants would be divided so sharply on an issue with such apparent lack of consequence--by letting total harm damages erupt without any procedural or substantive safeguards so long as the courts or legislatures say they're not punishing, they're just regulating. And unlike United States v. Booker -- which did recognize a defendant’s right only before demolishing its significance -- there aren’t separate opinions in Philip Morris regarding the “merits” and the “remedy.” Philip Morris is just one opinion and therefore susceptible to less plausible charges of schizophrenic reasoning.

To my mind, the better reading of the case undermines the feasibility of a cost-internalization agenda, but for two reasons, it does not destroy the agenda in one fell swoop.

First, the goal of achieving cost internalization remains feasible to the extent that jurisdictions make available class action or other aggregative litigation strategies that protect the rights of defendants; once a class is certified, at that point, nonparties become parties to the litigation. That said, more class actions will only permit the consideration of actual litigants, not the “quasi-parties” on whose behalf Professor Sharkey also advocated.

Second, the prospect of obtaining augmented damages outside the class action also continues to survive Philip Morris to the extent the defendant caused potential harm to the plaintiff(s). In other words, under my proposed reading of the case, the operative question (for purposes of cost-internalization) is now: what harm or potential harm did the defendant cause this particular plaintiff (rather than what harm or potential harm of this sort did the defendant cause)? The potential harm to the plaintiff, which the Court still permits as a consideration, plausibly encompasses the likelihood that the defendant would escape compensating this particular plaintiff. And to those that worry that Philip Morris eviscerates optimal deterrence, consider cases like those presented in the Supreme Court’s TXO decision, where an augmented damages award could be justified based on potential harm to the particular plaintiff on account of the tortfeasor’s concealment or deceit. If we assume a situation where a plaintiff faced a 1/3 chance of discovering that it was this defendant who caused the harm to the plaintiff, then that should, in theory, allow a jury pursuing cost internalization to impose augmented damages that are double the compensatory damages. (Per Polinsky and Shavell, “the total damages imposed on an injurer should equal the harm multiplied by the reciprocal of the probability that the injurer will be found liable when he ought to be.”[v] Thus, if a harm of 10 is caused and there is 1/3 chance the D will be held liable, then augmented damages should be 20 in addition to the 10 in compensatory damages, for a total of 30, or 3 times the harm.)

In sum, under my reading of Philip Morris, if a multiplier were based solely on the likelihood that the harm or potential harm to the plaintiff would be detected and compensated, it would pass constitutional muster, as suggested in Justice Breyer’s concurring opinion in BMW v. Gore.[vi] But Professor Colby is correct to emphasize that augmented damages need no finding of reprehensibility to warrant their award, and in such a situation, they should not logically be thought of as part of the punitive damages constitutional analysis.[vii] Instead, they involve a fact-finding determination, much like the amount of compensatory damages. And because augmented damages are essentially a regulatory tool to facilitate cost-internalization, states should be permitted to pursue different regulatory strategies, with tort law as one of several instruments to pursue that goal. A jury verdict form that reflects this ambition simply has to limit the jury’s consideration appropriately. The Appendix to [the IRD and RD articles] makes such an effort though it does so based on my reading of Philip Morris’s implications for cost-internalization, not on what I think would be logically required on a blank slate.

I should add that I don’t particularly have a dog in the fight; if it turns out Colby’s reading of cost-internalization after Philip Morris is regarded as correct, then I’d be happy to have the jury instructions I offer in the Appendix to my article -- the ones dealing with cost-internalization -- adjusted accordingly.

Standard of Review for Augmented Damages

 

What’s important about this decoupling of purposes (separating out the retributive purpose from the cost-internalization perspective) is that it logically calls for a different standard of review on appeal. In Cooper Industries, the Supreme Court announced that in federal cases the amount of punitive damages should be reviewed de novo, and that decision was predicated in part on the claim that determinations of punitive damages involve a moral component that has to be weighed against a defendant’s due process rights. That holding is only true for the retributive (and arguably the complete, not optimal, deterrence) part of extra-compensatory damages; by their nature,  augmented damages for the sake of cost-internalization involve only matters of empirical estimation (ie, what’s the likelihood the defendant would escape having to compensate this plaintiff), and thus are no different than compensatory damages (which ask, among other things, what kind of pain and suffering did the defendant’s action cause?), and thus determinations of augmented [total-harm] damages deserve greater deference when reviewed on appeal.

---

[i] Gore, 517 U.S. at 584 (indicating punitive damages award may reflect harm caused to all in-state purchasers);

[ii] Philip Morris, 127 S.Ct. at 1063 (slip op. at 6).

[iii] Thomas B. Colby, Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages, 118 Yale L.J. (forthcoming 2009; manuscript on SSRN).

[iv] Professor Colby thinks, based on his understanding of the constitutional issues, that a public interest in retributive justice cannot be pursued outside the criminal law because of the absence of procedural safeguards. In this respect, he seems to agree with the view articulated by Redish, Emory L.J. But this perspective, to my mind, requires a finding that an intermediate sanction cannot be imposed even if it is accompanied by intermediate levels of procedural safeguards. My view is that with some basic safeguards, we can tolerate and embrace the use of intermediate sanctions. And given what the Supreme Court has repeatedly said in the last thirty years about the “quasi-criminal” purposes of punitive damages, there’s no reason to suspect that a space for an intermediate sanction cannot be carved out.

[v] See Polinsky & Shavell, supra note, at 889.

[vi] BMW of N. Am. Inc. v. Gore, 517

U.S.

559, 562 (1996) (Breyer, J., concurring).

[vii]

While the Court has in the past referred to deterrence as a goal of punitive damages, cost-internalization is about optimal or efficient deterrence, whereas what’s probably being adverted to by the Court is the goal of complete deterrence. The goal of complete deterrence signals that the conduct is prohibited whereas the goal of cost-internalization suggests that the defendant’s conduct is “priced.” Because cost-internalization refers to a different kind of deterrence (optimal) than the one (of complete deterrence) probably subsumed under the Court’s pronouncements in the constitutional analysis, Colby’s conclusion is highly plausible as a matter of theory and logic; but for the reasons I mentioned in the text, I doubt this conclusion is what the Court meant in Philip Morris.

 

The Alt-Neu clash of anti-discrimination and free exercise

Update: See bottom of post for additional notes.

Over at the Volokh Conspiracy, Dale Carpenter has an excellent post on the new tactic some opponents of same-sex marriage are taking: claiming that SSM will impair the free exercise rights of individuals and faith groups.  Carpenter seems right in noting that the fact of same-sex marriage is doing little work in motivating most claims of infringement of free exercise. For the most part, even if SSM were not recognized, many of the persons or entities would still be claiming their free exercise rights have been threatened. Thus,  the mere fact of SSM's newfound recognition in various  places serves as an opportunity/springboard for repeating earlier claims of conflict between anti-discrimination laws and free exercise.

Like Carpenter, I'm strongly in favor of SSM and rights against discrimination on the basis of sexual orientation more generally. And at the same time I am broadly sympathetic to robust free exercise claims. So the conflict is not an easy one to resolve, especially as religious institutions participate in broader swaths of civil society through the establishment of schools, hospitals, adoption agencies, etc.

Carpenter abjures from trying to find a broad principle or strategy to help resolve these conflicts when they arise.  I'm somewhat leery of ad hoc casuistry and thus tempted to find a (normative if not constitutional) distinction or set of distinctions that would create some predictability and sense here. My view is that, in almost all cases, sexual orientation is about as morally irrelevant as the race of a person. Thus virtually any situation where race-based discrimination should be prohibited should be grounds for application of the same norm against discrimination based on sexual orientation.  Some applications and grounds for holding this view appear after the jump.

The examples below are culled from Carpenter's post. If I'm right that sexual orientation is as morally irrelevant a basis to discriminate upon as race is, then the person or entity claiming infringement of religious freedom should lose in all these following situations. However, in some situations not described below in the cases, I think it's wrong for the state's anti-discrimination norms to intrude (which is different from saying that it's morally permissible to discriminate based on race or sexual orientation). Thus, if someone  refused to date a white person or take a gay person into their home as a room-mate, then that should be permissible since we have good reasons for restricting the reach of the state's power.*

What seems to be doing the work in this area is that we want public places (both governmental and thick active markets) to be free of discrimination, but we are willing to endure some discrimination in the name of preserving small zones of personal freedom that don't intrude (substantially) into the spaces of civil society. Faith groups willing to comply with that anti-discrimination norm can compete with others and create larger empires of influence (universities, hospitals, adoption agencies).  Those that aren't willing to comply with that are permitted to flourish, but they must maintain their views within churches and homes alone. To the extent this line is attractive, it suggests that limiting the reach of permissible discrimination in the marketplace is one way of keeping avenues of opportunity available to all; indeed, it also intimates that the norm of anti-discrimination is instrumentally valuable rather than just something to be maximized or pursued simply for its own sake.

But there is at least one problematic conflict that Gallagher alludes to her in piece in NRO, and this is an example of a conflict that does arise with SSM that doesn't arise with antidiscrimination more generally (and it's something Dale should probably discuss): whether churches will lose (or should lose) their tax exempt status for refusing to perform same-sex marriages. If my analogy of gay=black is taken at full force, then there's not really much reason to treat churches that refuse to marry gays differently than we do churches that retain fundamentally racist norms: either we strip their tax-exempt status or we allow the racist churches to keep theirs (contra Bob Jones).

[2d Update: Actually, upon Rob's prodding and reflection, I'm not sure I was right to suggest that anti-discrimination norms should trump a refusal to perform SSM in the Church. Unlike in Bob Jones, which involved application of anti-discrimination norms to a university -- and therefore as what Rob calls "paraministry,"  and what I called earlier the empire of influence  -- the refusal to perform SSM occurs as an aspect of the core private space and function that should remain relatively inviolate from the state's intrusion. So I think this is consistent with my earlier view about having some space free from state intrusion.]

That said, my tentative sense is that tax-exempt status is something that should probably be revisited more broadly.  In this scenario, there doesn't seem to be a good basis for allowing the effective subsidy associated with tax-exempt status to go to organizations that flout the anti-discrimination norm. Taking the status away leaves churches alone to decide how they want to operate, but requires them to pay their taxes like everyone else. I'm not so troubled by that, but I'd also think that removing tax-exempt status for a whole cluster of third-sector organizations is appropriate, at least in part to blunt the charge that the state is granting important privileges to faith-based organizations based on viewpoints congenial to supporters of the anti-discrimination norms. [I've lightly edited this paragraph.]

*Adoption services: Catholic Charities of Boston refused to place children with same-sex couples as required by Massachusetts law. The group withdrew from the adoption business in 2006.

*Housing: In New York City, Yeshiva University's Albert Einstein College of Medicine, a school under Orthodox Jewish auspices, banned same-sex couples from its married dormitory. In 2001, the state's highest court ruled Yeshiva violated New York City's ban on sexual orientation discrimination and the school now lets same-sex couples live in the dorm.

*Medical services: On religious grounds, a Christian gynecologist in California refused to give his patient in vitro fertilization treatment because she is in a lesbian relationship. (He referred the patient to a partner in his practice group, who agreed to provide the treatment.) The woman sued and the case is pending before the California Supreme Court, which is expected to rule in favor of the lesbian.

*Civil servants: A clerk in Vermont refused to perform a civil union ceremony. In 2001, in a decision that side-stepped the religious liberties issue, the Vermont Supreme Court ruled that he did not need to perform the ceremony because there were other civil servants who would. However, the court did indicate that religious beliefs do not allow employees to discriminate against same-sex couples.

*Wedding services: A same sex couple in Albuquerque asked a photographer to shoot their commitment ceremony. The photographer declined, saying her Christian beliefs prevented her from sanctioning same-sex unions. The couple sued, and the New Mexico Human Rights Commission found the photographer guilty of discrimination and ordered her to pay the couple's legal fees. The photographer is appealing.

*Wedding facilities: Ocean Grove Camp Meeting Association of New Jersey, a Methodist organization, refused to rent its boardwalk pavilion to a lesbian couple for their civil union ceremony. The couple filed a complaint with the state civil rights commission. The commission ruled that the property was open for public use and therefore the Methodist group could not discriminate against gay couples using it. The case is ongoing.

I should add parenthetically that I was both surprised and a bit disappointed by the position taken by the American Jewish Congress' general counsel in yesterday's LA Times. That said, I think it's a mistake to read that op-ed as evidence of that person's (or his organization's) straightforward opposition to SSM. Rather, contra Dale, I think that the op-ed can be read as simply highlighting some of the predictable conflicts and residual costs associated with SSM.

In any event, kudos to Dale for writing such a thoughtful post. It's been a while since I've taken the time to mull some of these conflicts so I'm grateful for the provocation. I'll be curious to hear how others on this blog who are sympathetic to free exercise claims approach these issues normatively.

Update: Rob Vischer at Mirror of Justice takes me to task. He first argues that civil society access should not require adherence to antidiscrimination norms. He then challenges my willingness to strip tax-exempt status from organizations not willing to abide by antidiscrimination norms, and my willingness to strip tax-exempt status more broadly.  I realize that liberalism succeeds or fails in part based on recognition of a public/private boundary. The question then is where does this boundary lie. And this issue ultimately informs the resolution of both points Rob makes.

In the first point, Rob asks:

I agree with Dan that access is important, but the universal enforcement of anti-discrimination norms outside "churches and homes alone" seems more concerned with the intrinsic value of the anti-discrimination message than with the instrumental value of access.  E.g., if 98% of colleges and universities admit students and hire faculty without regard to sexual orientation, why should our concern with "access" force a particular religiously affiliated college to stop discriminating on the basis of sexual orientation (or race, for that matter)?  If there are 5 adoption agencies placing kids with same-sex couples, why should Catholic Charities be compelled to do so?  Does access have to be universal in order to be meaningful?

It would seem odd if the answer to this question turned on empirics alone: for I can simply reverse the scenario and ask Rob, if civil society reflected a deeply Orthodox Jewish or pious Catholic approach, and there were only 2% of the colleges and universities that abided by antidiscrimination norm, would that be a sufficient preserve of access?

To my mind, that's what the West was like in most places prior to the 20th century (politically) and the 17th Century (philosophically). So these are real questions, and I think I'd rather side with an antidiscrimination norm in the public square coupled with a state that left people alone in their churches and homes. I recognize that it's an imposition to draw these lines against faiths that see themselves as kehillot, or communities with various forms of institutions, and don't view themselves as existing simply in the minds of its adherents.

But maybe the answer should turn on empirics too: perhaps if there's a sufficient mix of views in the public square and the marketplace then there's no instrumental reason (in the sense of furthering access) to insist on the anti-discrimination norm. The question I'd ask Rob and those sympathetic with his view is: how do we design institutions so that they can prevent the mix from being too dominated by one religious worldview especially in relatively homogeneous societies?

As to Rob's second question, I really think this is just about which baseline we are operating with. As I wrote him, I think invoking Justice Powell in Bob Jones does no more than confirm that it's basically an endowment effect (the religious organizations currently have the entitlement of not having to pay taxes) that informs/distorts the perspective here. Requiring organizations to pay taxes certainly doesn't strike me, contra Powell, as "an indispensable means of limiting the influence of government orthodoxy on important areas of community life."  Rather, it's a way of recognizing the various pro-social benefits most of these institutions do for society. Requiring them all to pay taxes puts them all on the same footing with each other in the competition for supporters and adherents. Requiring some to pay taxes because they are violating antidiscrimination norms puts them on the same footing as all the private individuals who harbor racist or anti-gay beliefs too. That doesn't strike me as the end of a liberal order. [But, for reasons I hope I clarified above in my update, the situation of refusal to perform SSM in the Church shouldn't be a basis for stripping tax-exempt status.]

*One distinguished classmate from law school, now teaching at one of the finest law schools in the South, once argued that there are good reasons for extending anti-discrimination norms even into the market for love such that personal ads should be cleansed of racial preferences; I haven't bought the argument ... yet.

A contemporary Antigone story?

Over in Michigan, there's a story developing about a father who was arrested for harboring a fugitive: his son.

It's a choice that no parent would want to make. Kelley Thomas' 23-year-old son, Kelly Carter, escaped from a Georgia jail in April and shortly thereafter allegedly showed up at his dad's doorstep on E. Lorado Avenue. Now, Thomas has been charged with harboring a felon. What's a parent to do? It's a difficult question, even to Genesee County Prosecutor David Leyton.

"The fact that he's the father was discussed by my staff, and we will take that into consideration as the case progresses," Leyton said. "It's hard to turn your back on your own flesh and blood." ... The Genesee County Sheriff's Department and the U.S. Marshals Service raided the house on May 30 and police say they found Carter hiding in the bottom cabinet of an armoire at his father's house. Thomas, 45, told police that he didn't know his son had escaped from jail. Their cases are still pending. Thomas could face four years in prison. Carter had been in the Treutlen County Jail in Soperten, Ga. for a probation violation for assault and cocaine sales.

This story, and the reader comments on it that follow,  raise the question of whether states should extend what Ethan, Jennifer Collins and I have called "family ties benefits" in the criminal justice system. (The newspaper article refers to  the law review article I wrote with Jennifer and Ethan, which will form  part of our  forthcoming book with Oxford on criminal justice and the family.) Some analysis after the jump.

As I mentioned to the reporter, at the time of our study, we saw about 18 states that give either sentencing discounts (4) or prosecutorial exemptions (14) to family members who harbor fugitives. In the article, we explain our reasons for thinking that such "freebies" are wrong-headed: primarily, they create more likelihood of Type II errors (where wrongdoers escape condign punishment), discriminate against those without family networks to offer refuge, and increase the likelihood of successful crime networks. That we think harboring fugitives is wrongful, even if parents do it for their children, of course, is consistent with relatively low sentences. Four years incarceration--what the father in this story faces--is pretty steep to my mind.

Of course, in this particular case, if the father can convincingly show that he didn't realize his son was a fugitive, then that should also be a basis for exculpation. It does seem a bit fishy, though, that the son was found hiding in the armoire of the father's house and that the father wouldn't know that his son had not completed his sentence. According to this story, "[t]he father, Kelley Thomas, allegedly told police he had heard a rumor that his son had escaped from jail but claimed he never asked him about it."

But those are facts for a jury to decide and there may be other circumstances at play here. Interesting case. And probably more frequently occurring than one would think. After all, families are often the ones criminals, like the rest of us, reach out to first.

Poetic Justice Instantiated

Literally. Turns out a bunch of teens near Middlebury College trashed the former home of poet Robert Frost.

On December 28, a 17-year-old former Middlebury College employee decided to hold a party and gave a friend $100 to buy beer. Word spread. Up to 50 people descended on the farm, the revelry turning destructive after a chair broke and someone threw it into the fireplace. When it was over, windows, antique furniture and china had been broken, fire extinguishers discharged, and carpeting soiled with vomit and urine. Empty beer cans and drug paraphernalia were left behind. The damage was put at $10,600. Twenty-eight people -- all but two of them teenagers -- were charged, mostly with trespassing.

Now Frost's biographer, Jay Parini, will be teaching them Frost's poetry as part of their punishment. It's an unusual and creative form of what I call "guilt punishments," and discuss at length in this article from Vanderbilt LR in 2001. Unlike public shaming punishments, these guilt punishments can occur in relative privacy without any participation of the public; moreover, they prototypically are designed to induce some form of moral contrition by the defendants, many of whom will not have to face a permanent record if they complete the "diversion" conditions successfully.

Years ago, I endorsed guilt punishments -- as opposed to shaming punishments -- as a good retributivist alternative to incarceration. But in the last few years I have also worried about the kind of sentencing flexibility (and potential breach of rule of law values) needed to create an effective guilt punishment, such as the one suggested in this case in Middlebury. My tentative view, and it's only a rough sense at this point, is that the concern for reducing unwarranted sentencing disparities is enhanced in cases involving more severe punishments--such as incarceration.  But in truth it might be that this view is the product of a pragmatic compromise.  After all, there is no obvious logical relationship between the values promoted by a commitment to equal justice under the law and the degree of punishment.    I'm open to suggestions.
H/t: Andrew Epstein.

Retributive Damages, Privacy and Procedural Safeguards

Greetings from gorgeous Vancouver, where I'm camped out for the next month at the extraordinarily lovely and temperate surroundings of Green College at UBC.  When not teaching comparative sentencing law and policy to a group of wonderful students this coming month, I'll be working on a couple writing projects: among them, the book on family ties and criminal justice, and the first two installments of my retributive damages trilogy.

Today, I was working on Implementing Retributive Damages, the second of the trilogy, and I've been mulling over the need for procedural safeguards in the context of punitive damages. One puzzle got me thinking, about which I thought I'd invite some conversation. Here's the issue after the jump. Let me know what you think.

In an article published more than a dozen years ago, Professors Marc Galanter and David Luban argued that criminal defendants need additional procedural safeguards because of “two concerns — about the centralized power of the state and about state abuse of prisons and physical violence.” Because Galanter and Luban believe that neither concern is implicated by punitive damages – actions for punitive damages are brought by private parties who cannot obtain relief in the form of physically restrictive punishment – there is no need for increased procedural safeguards. I take issue with this conclusion in the article because it seems to me that both of these reasons are insufficiently defended. Here I want to ventilate part of that critique by focusing here on the first reason; what follows is still quite tentative so please take it in the spirit of a trial balloon rather than a conclusion of my well-considered views.

Specifically, I want to focus on the idea that the centralized power of the state as such is a reason to extend procedural safeguards to defendants. It seems to me that safeguards are necessary largely to reduce Type I errors where we either mistakenly punish someone or overpunish them compared to comparable offenders. That is, when we are punishing someone, the reason we want procedural safeguards is not to curb the centralized power of the state as such, but because of our desire to make sure that any such power is properly exercised against a particular person or entity.

One way of making this argument is by analogy to the realm of privacy intrusions. Let me explain. To my mind, a person's well-being is impaired when he suffers a setback to his interests, e.g., when the privacy of his (mis)conduct is revealed through either private or public agents. If a private investigator for a plaintiff comes rummaging (with no notice or temporary authorization through my garage,) I am still reasonably upset or resentful. I can imagine I may reasonably be even more upset when the government is the intruder instead of a private investigator for a third party—after all, the government purports to act in my name. But to the extent my choice is to shield something from exposure to public view, the legitimacy of the interest I have in keeping that information private doesn’t hinge -- does it? -- simply on whether the intruder wears the government’s badge.  [Do people have different views about this than I do? If so, why?]

Similarly, in the context of punitive damages designed to advance the public's interest in retributive justice through the use of retributive damages (for now, think of this simply as a fine, the basis of which is instigated through civil suits launched by private parties), we each, ex ante, have an interest in ensuring that the government strikes the right balance between type I and type II errors. Procedural safeguards are the primary way to reduce type I errors, and to some extent type II errors having to do with underpunishment relative to comparable offenders. From the defendant's perspective, he should want procedural safeguards to avoid the mistaken assignation of condemnation and the accompanying hard treatment, regardless of whether the person whose detection of the underlying wrong is the sovereign (public prosecutors) or private plaintiffs. In other words, a person subject to a retributive condemnation has no reason to think fewer safeguards are desirable since in both cases (privately launched or publicly launched suit), the state is making the adjudication involving condemnation and imposing the punishment.

The procedural safeguards, then, are necessary because the state has power to do things that we worry about to people, not simply because the state has power. In the context of retributive damages, the state has the power, through its courts, to enforce deprivations of property or reputation, and thus the concerns that motivate procedural safeguards in the criminal context arise, though to a lesser extent, when retributive damages are at issue. To the extent retributive damages can plausibly be said to be an intermediate sanction on the register of severity of condemnation (whether in the intensity of available punishments or the collateral consequences one might face), it would call for an intermediate level of protection against its wrongful imposition. Thus, actions involving retributive damages should exhibit more concern for Type I error reduction than is warranted in suits involving mere compensatory damages but less concern for Type I error reduction than is warranted in criminal prosecutions of defendants. Precisely how to draw that line is something I'll leave for another day.

Back to the privacy issue. There's not really much gained here by way of the analogy I suppose, but the point I think I'm making here is that just as we want protections against unwarranted intrusions against our privacy so too do we want sufficient protections against unjust imposition of punishments; and it seems to me that the scope of the protections we want does not really turn on who is the source of intrusion so much as the nature of the intrusion itself. Galanter and Luban seem to be making the contrary claim; if that's right, I can't really understand why.

Same sex marriage and the "parade of tolerables"...

Rick's correct to note the general point on slippery slopes below, but I think his application of the point doesn't translate. Let me offer a couple quibbles re: the fine-grained legal theory. To get us to reach a conceptual ledge, Rick writes: Public nudity is, well, publicly visible; bestiality does not foster emotionally important human sociability; polygamy thrives on subordination of women; and so forth.

I recognize that Rick is being somewhat quick here, so I take it with a grain of salt, but consider:
a) public nudity may be no more shocking to us now than inter-racial coupling was to some communities in the past. And so the public aspect of public nudity is not really a conceptual ledge if what predicates opposition to it is merely aesthetic offense, no different in kind to the revulsion that racists had when they saw whites kissing blacks in public, or more recently, gays kissing each other in public.

Here the slope really is slippery--of course, its slipperiness is based on how pliable the social norms are. It might well be that the norms will be stickier here because of expectations of tangible harms. Maybe public nudity is opposed because it will cause rubbernecking and car accidents. But as society becomes more naked, less rubber-necking occurs. There's a dynamic loosening of the norm. In this vein, it's worth thinking of how some traditional societies view the allure of even fully-clothed women not wearing burkas or hijabs (or shaytels...). In those societies, if citizens wore what my students at FSU wear to class, it would be cause for commotion. Here and today, it barely registers.

b) the bestiality issue cannot rest on the ledge of failing to "foster" "emotionally important human sociability." First, that might suggest a reason not to have pets more generally. 

Second, it suggests that a person couldn't have sexual relations with a dog that are as emotionally meaningless as some of the hookups that occur in stripclubs, streetcorners, and bushes in the park. One might be a loving son and brother and husband, and still seek quick anonymous sex elsewhere. No necessary tension between human sociability capacities and quick sex with Trixie the sheep. (Think Woody Allen.)Bestiality to my mind is a concern because we can't think of animals as consenting meaningfully...  and it's the inherent coerciveness that seems problematic.  But if that logic does the work, it should also suggest a principle of vegetarianism because animals also don't consent to their slaughter.

c) polygamy is complex, as you know; much more so than just thriving on the subordination of women. One need only look at a) the existence of polyandry across time and space (which is admittedly less prevalent than polygny), and b) the fact that polygamy activists make their claims on several grounds including: i) it actually increases women's opportunities in the workplace vis-a-vis childcare responsibilities, and ii) it respects women's and men's liberty interests in polyamorous relations.

So only bestiality really rests upon a "conceptual ledge." The public nudity and polygamy examples are just aspects of social norms subject to the normative force of the liberty-advancing principles that supervened on miscegenation laws and now prohibitions against SSM. Let the slope slip against objections of "ickiness" -- at least as it relates to the use of the criminal law in a diverse liberal society.

Btw, there was a good post on Volokh.com recently by Dale Carpenter trying to draw the distinctions between SSM and polygamy.**  But color me unpersuaded. Dale links to this post by John Corvino, a philosopher interested in trying to stave off the slippery slope. It strikes me that Corvino's answer is missing the force of the liberty arguments at the heart of private ordering, and when SSM opponents adduce the parade of "horribles" there is no danger to those of us who believe it's really just a parade of "wonderfuls" or more plausibly, a parade of "tolerables."

**I can't link to it b/c for some reason the volokh.com site is not responding.

The Perils of Vicarious Liability in the Parenting Context

Via the indefatigable Doug at SLP, I just came across this story detailing the planned incarceration of a father for the failure of his daughter to achieve a GED degree. I'm not kidding.

A man ordered by a judge to make sure his daughter hit the books has found himself in jail because she failed to earn a high school equivalency diploma. Brian Gegner, of Fairfield, was sentenced last week to 180 days in jail for contributing to the unruliness or delinquency of a minor. He was ordered months ago to make sure his 18-year-old daughter Brittany Gegner, who has a history of truancy, received her GED - something that hasn't happened yet. Brittany Gegner, who said Monday that she plans to take a required GED test this month, said her father shouldn't be blamed for her failure because she has been living with her mother. "It was my wrongdoing, not his," said Brittany Gegner, whose fiance and 18-month-old daughter also live at her mother's home in nearby Hamilton. "He shouldn't have to go to jail for something I did."  Her mother agrees. "Brittany is almost 19 years old now and I think it's unfair to put her father in jail," said Shana Roach. "She's an adult now, and it's not right to rip an innocent man from his home."

Brian Gegner's wife, Stephanie Gegner, said she and her husband are afraid he will lose his job if he remains in jail. She said they tried to keep his daughter in school.  "You'd take her to school and she'd go out the other door," Stephanie Gegner said.

It's possible there are facts here that the story omits. Indeed a little research via google reveals that the father was in fact living with his daughter when the truancy occurred.  And "she has since taken the GED exam and passed all but the math portion, which she has failed several times."

But the larger point remains: can the law justifiably punish a parent for the actions of a child? In our forthcoming article, Punishing Family Status (BU LRev 2008), Ethan, Jennifer and I address these vicarious liability laws and the way that they impose criminal liability by virtue of family status.  A snippet of that analysis follows after the jump.

The first three forms of vicarious liability discussed earlier – truancy laws, curfew laws, and contributing to the delinquency of a minor – seem relatively uncontroversial to most people, because in those instances the adult in question has committed an affirmative act with a culpable state of mind, the traditional core requirements for a crime. So, in some sense, these are better viewed as “impure” vicarious liability laws. But if the laws in question only create criminal liability on account of a person being part of a designated family relationship, where the absence of that family status wouldn’t trigger liability for the same conduct, then those laws warrant scrutiny under our framework.

As might be expected, we remain skeptical of these sorts of laws because to the extent that they reinforce special duties that flow in light only of state-sanctioned family status, they are simple family ties burdens. If an element of a vicarious liability crime is a relationship of family status, it would offend basic principles of equal treatment, since those in relationships of autonomous care-giving that behave identically but do not have recognized family ties would not be considered culpable.  That result cannot stand, if the liberal state takes seriously the idea of approaching all its citizens with equal concern and respect.  Accordingly, to the extent that the states that embrace these regulations think they are necessary, we would urge those legislatures to draft their laws in ways that do not burden the family directly.  We can imagine several ways around this problem, whether it involves exacting liability on all voluntary care-givers – or more carefully circumscribing these crimes so that family status is not used as an element.

More controversial still are the strict liability offenses.  Should a parent or other caregiver be prosecuted on a strict liability theory, facing criminal sanction simply because the child under her or his care has committed a crime?  Put most starkly, does one’s status as a caretaker suffice to warrant perhaps the greatest family ties burden of all: sanction through the criminal justice system for the criminal conduct of another solely because of family status?

We think the answer must be no in the absence of a blameworthy state of mind and an actus reus by the caregiver in question.  As we have suggested in this Article, many family burdens imposed by the criminal justice system are in place because of the idea that they promote an ethos of care.  Yet, imposing criminal responsibility on a strict liability theory does not seem to promote more effective care-giving than a negligence standard would.

Let us illustrate with a concrete example.  Imagine a parent goes out on a date and leaves a twelve year-old alone in the house with unsecured firearms and an unlocked liquor cabinet, when the parent knows the child has attempted to play with the guns and drink liquor on prior occasions. If the twelve year old proceeds to get drunk and use the parent’s gun to shoot up the neighbor’s car, the parent has been reckless, or at a minimum, negligent by “failing to exercise reasonable control” over the child.  Imposing liability in this scenario will signal both to this particular caregiver, and other caregivers in the community, that caregivers must supervise their children more vigilantly.

But imagine instead that the child buys the gun in a school locker room with his money from an after-school job and shoots up the neighbor’s car on the way home from school, despite repeated admonitions by the parents to stay away from guns and people with guns. Under an ordinance like the one passed (and struck down) in Ohio, parents could face prosecution on a strict liability theory because their child had been charged with a crime.  But such a prosecution would have no impact in terms of promoting better care-giving; there is no care-giving the parent could have done that would have prevented the crime in question, other than refrain from parenting altogether. If we are to believe that these standards of conduct are emitting signals to would-be parents, the strict liability standards would simply encourage people to forbear from parenting or to take their chances in the enforcement and genetic lottery. This is not purely hypothetical either. To the extent we want to use criminal law to project social norms about correct values, the strict liability standard in some vicarious liability statutes will deter people from becoming foster parents, adoptive parents of teenagers, or on the margins, parents of their own biological children. That’s not the signal regarding the promotion of care-giving that society should emit.

Thus, as a general matter, we are dubious about the value of these statutes both as to their capacity to reduce crime through parenting vigilance or to signal commitment to parenting values. Equally important, we note that limiting vicarious liability to those in a state-sanctioned family unit seems underinclusive and discriminatory. If these statutes are to do the work of crime-reduction that its supporters promise then they should be structured in such a way that they apply to all those who have voluntarily assumed care-taking and custodial responsibilities for the minors in their households. In other words, if vicarious liability is embraced by legislatures because of its crime-reduction promise, then it should be applied whenever there is a relationship of asymmetrical dependency and voluntary care-giving, and not just a strictly construed version of biological parent to child. For at least this way, more of the deterrence will be achieved by extending its ambit to same-sex or non-married child-rearing partners, and the importance of the care-giving value will be communicated to those who have opted to raise children.

Some news of varying degrees of excitement:0-11

Ah, the beginning of exam-grading period: it is, by my lights, the best time to procrastinate by writing incessantly. And while my wife could have been eating donuts with Jack in Tucson the last few days, I've had the chance to finish assemble cobble from here and there a shitty first draft of Implementing Retributive Damages. Ok, "draft" is overstated; there are still various holes  in the text to write.  But as the second of a trilogy -- you can read a more developed draft of the first part, Retributive Damages, up on SSRN --  Implementing Retributive Damages raises and hopefully resolves all sorts of neat policy questions that I had to defer from the first installment. 

This bricolage comes just in time. On Thursday I'm slotted to present the basic ideas of the paper to my colleagues here at FSU Law over lunch before going on the road with it this summer to Vancouver, NYC, and Palm Beach. If you're in the 'Hassee this Thursday, and interested, please let me know--you're welcome to come munch on Qdoba or some such with us while I talk about pluralism about punitive damages purposes, punishing entities, dirty-handed plaintiffs, and procedural safeguards for civil defendants facing retributive damages.

Speaking of FSU Law, some really great news in the last few days has emerged. First, our graduates just led the state in bar passage--again. Florida State ranked first among Florida’s ten law schools in the passing rate on the February 2008 administration of the Florida Bar Examination. Our first place passing rate of 93.6% was followed by UF’s passing rate of 88.3%. The overall passing rate was 76.4%. Florida State Law has had the highest passing rate in four of the last five administrations of the Florida Bar Exam.  Second, and at least equally impressive, the Dean recently announced that according to data recently released by the ABA, Florida State Law has the 13th best alumni giving rate among the nation’s law schools, at 26.1%, with only two state schools ahead of us, UVa and UCLA.  Given FSU's relative youth and its status as a public law school, I think that sense of alumni engagement says something quite good about the school -- and our development office!  Moreover, it looks like this coming year we will have a burgeoning smatter of criminal justice-related activities and initiatives that I'll be coordinating with Wayne Logan. More on that to follow.

Last, though definitely not least, Prawfsfest! is coming!! After two successful incubator workshops at Miami and Loyola LA the last two Decembers, we are now contemplating a move toward doing them on a semi-annual basis instead of an annual one. Well, that's the ambition; that, and warm weather hosts during the winter.  Toward that goal, I'm thrilled to announce that Dean Nora Demleitner and her colleagues at Hofstra will be hosting Prawfsfest! this coming July. Details are still being worked out, but we will gather in NY before the SEALS Conference. Stay tuned for more info on this great match: Hawfsfest! at Prawfstra. Er, I meant Prawfsfest! at Hofstra.

Ritual and Scholarship

Later this evening, I'll be helping to lead a community-wide service in honor of Holocaust Remembrance Day. (For those of you in or near the 'Hassee, it will be at Temple Israel on Mahan at 630pm; all are welcome.) This powerful story in today's NYT about the rededication of a Torah from Auschwitz will be on my mind.

The story resonated with me on a separate level because of its brief allusion to the ritual associated with crafting a Torah scroll. It notes: "Its ornate Hebrew must be hand-lettered by specially trained scribes, and it is considered unacceptable if any part is marred or incomplete."  While sitting in shul on Saturdays, I often lose myself in the essays at the back of the Etz Hayim book of the Torah in the pews. This past Shabbat, in particular, I was drawn to one by Stuart Kelman on the ritual production of Torah scrolls. (You can get a flavor of it at this Wikipedia entry, but it's not quite so detailed as Kelman's piece. On the other hand, this website looks promising.)

It's an amazing process, and naturally for someone as confused between the sacred and profane as I am, I was wondering what rituals prawfs-people adopt, if any, prior to engaging in scholarship or service or teaching. I understand that at some mission-oriented schools, prayers are made prior to faculty meetings, which often have an elevating effect on the tone and tenor of discussions. I also think I have heard that some professors say a prayer before each class.  I'd be curious to hear if anyone has their own prayers or Wade Boggs-like "chai and chicken" rituals that help them write scholarship on a regular basis. It needn't be sectarian, just ennobling of purpose, a bit different from the "I write from rage" school of thought I was exposed to during my 1L torts class with this mysterious guy.

Retributivism and Kennedy v. Louisiana

As Sam Kamin notes over at Co-Op, today the SCT is hearing arguments in Kennedy v. Louisiana, a case involving the constitutionality of the application of the death penalty to a person convicted of a non-homicidal crime, in this case, the rape of a child.  Because I still have to prep for two classes both today and tomorrow, our last day of the semester, I can't opine at length on the briefs until a bit later, but it's worth noting that the Court's support in the past for the death penalty has often been predicated on the assumption that retributive justice theory supports the death penalty. 

This article of mine from a couple years ago (update: sorry, I had the wrong link earlier) tries to systematically undermine that conclusion. In fact it gives strong reasons to think retributive theory, at least in the version I find most compelling, is actually hostile to the death penalty.  If that argument succeeds, it succeeds against the death penalty's use not only against murderers but also child-rapists. And since the Court has moved away in large measure from predicating its 8th Amendment analysis on non-retributive goals, it entails the conclusion that the Court should make the small move of extending Coker v. Georgia, which held that the Eighth Amendment prohibits the execution of a rapist of an adult, to this scenario.

I should also mention that there are very few self-described retributivists in the academy who support the death penalty. The one who comes to mind most readily is Robert Blecker of NYLS. Blecker's views in the past have been based on an intuitionist defense of retributivism, which I find unpersuasive. Putting that disagreement aside, it's worth noting that even Blecker has always tried to use the retributive justification of the death penalty as a defense of punishing with execution only the worst of the worst, and definitely not all murderers. My guess is that Blecker, along with others, would view a child-rapist  (or the rape of a child) as not as terrible or evil as a murderer (or the murder of a child). If that's the case, it would be problematic for the Court to reach any conclusion that retributivism supports the death penalty here -- when so few people who have consistently and mindfully aligned themselves under retributivism's flag take the opposite view.

Retributive Damages: Possible Jury Instructions

In earlier posts gathered here, I laid out the structure, rationale, and constitutional implications for a new way to think of punitive damages as an intermediate sanction designed to facilitate the public normative interest in retributive justice.

In today's post, after the jump, which is also the last post in this series, I've tried to distill many of the major policy prescriptions in this project in capsule quasi-jury instructions. I say quasi-jury instructions because I've had feedback suggesting that they are potentially too complicated for most juries. I've often been confounded by jury instructions so I'm not sure these are much more complicated than the kind normally approved, but I'm open to thinking about these instructions as a set of guidelines that may help legislatures or judges recraft their own punitive damages practice.

The material below appears in unfootnoted and unformatted form, but you can read a draft of the whole article with apparatus on SSRN here. After a busy expedite season, I'm happy to announce that the whole article will be coming out in January 2009 in the Cornell Law Review. Feel free to send me your thoughts via email.

APPENDIX: INSTRUCTIONS FOR ASSESSING EXTRA-COMPENSATORY DAMAGES

What follows is a distillation of the principal conclusions of this punitive damages project, which could be used to craft jury instructions. These instructions are designed to take into account the Supreme Court’s recent decision in Philip Morris.

NB: These instructions are a substantially modified version of the kind found in Professor Polinsky and Shavell’s article in HLR 1998. In some places, having mostly to do with cost internalization, I expressly borrow the language from their proposed jury instructions.

* * *

In considering the amount of extra-compensatory damages on the defendant, you should determine whether three separate dollar amounts are necessary:  (A) an amount to accomplish retributive justice against the defendant; (B) an amount to accomplish cost-internalization; (C) and an amount to accomplish compensation for the plaintiff’s personal dignity harms. 

A.            Retributive Damages

Retributive damages fulfill the punishment objective of extra-compensatory damages. These instructions apply only to defendants who have committed misconduct that you have found to be malicious or reckless in nature.  If you do not think, based on clear and convincing evidence, that the conduct in question was malicious or reckless in nature, do not award retributive damages. 

Malicious conduct is that conduct which was done with a purpose or knowledge of causing harm, and no other legally recognized excuse or justification for the conduct is available as a defense.

A defendant acts recklessly when he consciously disregards a substantial and unjustifiable risk that harm will result from its conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to the defendant, his disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation. If there are multiple defendants, you must undertake this analysis separately for each of the defendants based on each defendant’s misconduct. A defendant corporation will not be held legally responsible for all the misconduct of each of its employees. You must ask whether each defendant’s action was malicious or reckless.

If and only if you have determined that a particular defendant’s misconduct was undertaken with malice or recklessness, then the next step requires consultation of the chart prepared by the state legislature that should help you determine where on a scale of 1 to 20, with 20 being the most reprehensible and 1 being the least, the defendant’s misconduct lies.  The chart tells you whether to add points to the scale based on various factors and whether to subtract points based on other factors. Your job is to assess the wrongfulness of the defendant’s misconduct based on the reprehensibility chart. [It may also be your job to determine the wealth of the defendant, or its net value if the defendant is an entity.] It is not your job to assess how much harm the defendant’s misconduct has caused to society or other nonparties to this litigation. This finding should also be accompanied by an explanation of what facts you considered relevant to your determination.  Once you have deter-mined the level of reprehensibility, the court will use a different chart to determine the amount of retributive damages that the defendant will pay based on your assessment of reprehensibility. 

In determining the reprehensibility of the defendant’s misconduct, you may but are not required to consider “evidence of actual harm to nonparties” because that can help show “that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible.” Similarly, you may also consider the harm or potential harm the defendant’s conduct caused to others in determining whether the defendant’s misconduct was accidental or deliberate or part of a policy or pattern and practice. However, it is important that you not consider the mere fact that others were harmed as a basis for assessing retributive damages. Those others who are not plaintiff(s) in this case can bring their own suits for compensatory and other damages.   

Two facts are relevant to your task -- though they should not inform your actual assessment of the reprehensibility of the defendant’s misconduct.  First, the plaintiff will personally receive no more than $10,000 of the retributive damages award. The balance will go to the state [to advance law enforcement objectives, including but not limited to provide services necessary for victims and offender re-entry into society.] Second, the purpose of retributive damages is to make the defendant worse off than it would have been had it not undertaken its malicious or reckless misconduct. Thus, when determining the level of reprehensibility, do not consider the amount of other damages (whether compensatory, aggravated, or augmented, described below). [If the defendant has made such payments or has been otherwise punished through the criminal justice system of this jurisdiction, then you ought to forego making any reprehensibility assessment.] [Note to judges: civil penalties al-ready taken by the defendant for this misconduct against this plaintiff should be credited against retributive damages. No retributive damages are available if the government has already criminally prosecuted the defendant for the wrong to the particular plaintiff in this case.]

After you make your assessment of reprehensibility, the court [or you the jury] will determine whether any other gains or profits by the defendant need to be forfeited in addition to the reprehensibility-based retributive damages award.  The court may also make subsequent determinations regarding reasonable attorneys’ fees and costs (to be determined in light of the risk, time, expense and expertise related to this litigation).

B.            Aggravated Damages for Repairing Personal Dignity Harms

In deciding the remedy for personal dignity harms, please first make sure that you have not already figured this amount into your assessment of compensatory damages, perhaps based on what you attributed under pain and suffering or other non-economic damages endured by the plaintiff. Once you are certain that the amount of compensatory damages has not mistakenly included an amount for insult to the plaintiff’s dignity, consider what action or amount of money is appropriate to compensate the plaintiff for the injury to the plaintiff’s personal dignity.  Injuries to personal dignity, as understood here, are injuries where the defendant specifically targeted its misconduct toward this particular plaintiff. If the defendant is a corporation, consider whether the injury to the plaintiff was part of a larger course of conduct or whether it was specifically aimed at denigrating the dignity of this particular plaintiff. To facilitate review of your verdict and ensure even-handed con-sistency across similar cases, you are required to explain the basis for your reasoning in a few sentences or more.  The remedy you choose here may be an amount of money that you determine is appropriate to alleviate this particular injury to personal dignity.  Bear in mind that the plaintiff (and, depending on the circumstances, his/her counsel) will receive the entirety of the amount you decide under this heading.

Additionally, or alternatively, you may require the defendant to apologize to the plaintiff for the injury to the plaintiff’s dignity in person or via written communication. You may also suggest other possible actions that might repair the injury to the plaintiff’s dignity.

C.            Augmented Damages for Cost Internalization

In some cases, extra-compensatory damages are desirable to serve the function of making sure that defendants do not impose costs on others that the defendants do not pay for. In making your assessment for promoting cost internalization, bear in mind that you are not able to extract money from the defendant for harms that happened to persons or entities who are not parties to this litigation.  You may only consider what harm or potential harm the defendant’s conduct caused to the plaintiff(s) in this case. Other possible victims of the defendant’s misconduct may bring their own suits. 

Augmented damages fulfill the objective of making sure the defendant pays for the injuries it causes to the plaintiffs in the litigation. But augmented damages will undermine the cost internalization objective if they cause defendants to take wasteful steps to prevent harm, if they cause the prices of products and services to rise excessively, or if they cause firms to withdraw socially valuable products or services from the market.

Thus, ask yourself whether the defendant might have escaped having to pay for the harm for which he or she should be responsible to this plaintiff.  For example, if the harm was substantial and noticeable and likely to lead to a lawsuit, your estimate of the likelihood of escaping liability would be relatively low.  But if the harm might not have been attributed to the defendant, or if the defendant tried to conceal his or her harmful conduct, your estimate of the likelihood of escaping liability would be relatively high. You should use the table below to determine the augmented damages multiplier that corresponds to your estimated probability of escaping liability to this particular plaintiff.  Then multiply the compensatory damages amount [plus an amount, if any, for compensating personal dignity harms] by your augmented damages multiplier.  The resulting number is the base amount for augmented damages. 

The base augmented damages amount should not be adjusted upward or downward because of any of the following considerations:

  (a) reprehensibility of the defendant's conduct;

  (b) net worth or income of the defendant or net profits;

  (c) gain or profit that the defendant might have obtained from his or her harmful conduct;

  (d) litigation costs borne by the plaintiff;

  (e) whether the harm included physical injury.

Probability of                     Augmented Damages

Escaping Liability               Multiplier   

                  0%                    0

                 10%                  .11

                 20%                  .25

                 30%                  .43

                 40%                  .67

                 50%                 1.00

                 60%                 1.50

                 70%                 2.33

                 80%                 4.00

                 90%                 9.00

***

In sum, if you find the conduct at issue was undertaken with malice or recklessness, you should make a finding of reprehensibility (using the chart and its commentary and guidelines provided by the state) based on a scale of 1 to 20. Second, you should also determine an amount of aggravated damages necessary, if any, to compensate the plaintiff for personal dignity harms that were not already covered by the compensatory damages. This finding should be accompanied by an explanation of what facts you considered relevant to your determination. Finally, you should make, if necessary, a recommendation of the amount needed to pursue augmented damages for cost internalization of the harm and potential harm to this plaintiff.  Recall that other victims of the defendant’s conduct might bring their own suits and you do not need to punish the defendant or extract compensation from the defendant based on harms that happened to these non-parties.

Retributive Damages: Some Constitutional Analysis

In earlier posts gathered here, I laid out the Introduction and some relevant background regarding
punitive damages law, recent scholarship, and retributive justice. Subsequent posts addressed: which misconduct should be the subject of retributive damages and whether non-victims of wrongdoing should be empowered to bring claims for retributive damages (and if so, under what restrictions); how to bring rationality and fairness to determining the amount of retributive damages; and how to allocate the retributive damages among the state, lawyer and plaintiff. Yesterday's post focused on the case for developing an intermediate sanction of retributive damages that follows the structure described earlier.

In today's post, after the jump, I discuss the constitutional questions my proposal may raise and the discussion also includes a retributivist critique of the Supreme Court's recent decisions in Gore and State Farm that link punitive damages to a multiplier of compensatory damages. (Judges, lawyers, and clerks may be particularly interested in this discussion.) I also offer a brief conclusion. The next and last post in the series captures most of the policy prescriptions in this project in capsule quasi-jury instructions.

The material below appears in unfootnoted and unformatted form, but you can read a draft of the whole article with apparatus on SSRN here. Feel free to send me your thoughts via email.

SOME CONSTITUTIONAL IMPLICATIONS

There are a variety of constitutional questions that might arise in response to re-tributive damages. Some of these questions I answer in the next installment of this project, where I address in greater detail the procedural safeguards for defendants. That said, I want to address constitutional issues that may arise regarding the structure of retributive dam-ages scheme described in Part III.

First, if a state chose to adopt a structure of retributive damages like the one de-fended here, that structure and the awards of retributive damages arising under it would be entitled, I believe, to far more deference from the Supreme Court than is normally extended to awards of punitive damages in common law jurisdictions. After all, the retributive dam-ages structure extends far more granular attention to the concerns of even-handedness, pre-dictability, impartiality, accuracy, and proportionality than does the common law method used in many jurisdictions; in so doing, the retributive damages scheme is more solicitous of the values informing interpretation of both procedural and substantive due process.  Even if the Court refused to credit a careful legislative scheme of retributive damages with sub-stantial deference, in most cases, the outcomes from the retributive damages scheme I’ve described are sure to be compatible with the Court’s procedural due process cases and are very likely to be compatible with the Supreme Court’s excessiveness review under sub-stantive due process or even under the Eighth Amendment’s Excessive Fines Clause. 

With respect to procedural due process, the structure of retributive damages is fully compatible with judicial and appellate review (per Honda), de novo review of retributive damages in federal courts (per Cooper Industries), and a prohibition on punishing a defen-dant based on harms to strangers to the litigation (per Philip Morris).

As to excessiveness review, the Court places primary importance on the degree of reprehensibility of the defendant’s misconduct. As described in Part III.B, reprehensibil-ity is the driving force behind the amount of retributive damages also. But the Court, after State Farm, also requires consideration of the “disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award”; presumes that double digit ratios between punitive damages and compensatory damages are incompatible with due process; and states that the courts consider “the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.”

  The most salient problem that comes to mind regards the potential for the retribu-tive damages scheme to result in very high amounts of retributive damages awarded against very wealthy persons or entities who commit reprehensible conduct of the sort that might trigger a ten percent penalty. An award of retributive damages against Bill Gates, for instance, raises the possibility of multibillion dollar retributive damages. In a case where compensatory damages to the plaintiff are relatively low, such a result might be viewed as constitutionally suspect because of the supposed “disparity” between the “actual or poten-tial harm suffered by the plaintiff and the punitive damages award.” In other words, the multi-billion dollar award, when framed as a dollar amount, rather than as a percentage of net wealth, could, after BMW v. Gore, raise the proverbial judicial eyebrow.

One response to this problem is to note that those situations simply won’t occur too often, and if they do, these results should not be viewed as controversial compared to the various cases in which courts have upheld punitive damages awards that constitute a far higher percentage of net wealth or value than what I’ve suggested under retributive dam-ages. Moreover, because the legislature has passed a retributive damages scheme, sub-stantial deference should be extended to outcomes like these.  Another and less palatable option is to acquiesce to judicial application of the State Farm “disparity” test, and accept reduced retributive damages awards in those unusual cases. A reduction of retributive damages in a given case on “disparity” grounds does not call into question the entire struc-ture itself even if one could reasonably complain that such reductions undermine commit-ments to equality since wealthy persons would benefit from unjustified downward adjust-ments.

A more intellectually serious response however would take issue with the Court’s “disparity” criterion altogether. In State Farm, a majority of the Court declared an affinity for the presumptive use of single-digit multipliers of compensatory damages. This pre-sumption, as applied to retributive damages, is highly problematic.

Since the reprehensibility analysis drives retributive damages and constitutional due process review, the real constitutional problem for the retributive damages regime is the disparity criterion, which asks whether there’s a reasonable relationship between the amount of harm or potential harm and the penalty imposed. Stated at that level of general-ity, and in conjunction with the Court’s emphasis on reprehensibility, there is likely to be little friction between the Court’s punitive damages jurisprudence and the retributive dam-ages scheme defended here.

But two problems come to mind: first, courts often uncritically conflate the harm or potential harm to the plaintiff with the compensatory damages actually paid. Second, after State Farm, a “reasonable relationship” has morphed into a judicial presumption against punitive damages awards that are ten times or higher than the compensatory dam-ages award. In what follows, I explain why both compensatory damages anchors and the presumptive single-digit multiplier are often misguided.

Using compensatory damages as an anchor for the disparity inquiry lacks sufficient justification, at least in cases involving or risking physical injury. In those situations, as explained in Part III.B.4, using compensatory damages as a benchmark for measuring re-tributive damages would create a signal of inequality of human worth since compensatory damages are often keyed to one’s economic status in life, not one’s political status wherein one bears the privileges and burdens of equal citizenship. It’s possible that compensatory damages are a useful baseline in cases involving only financial losses by plaintiffs who were not targeted on account of their lack of resources, but that’s a position that needs ar-gumentation, not conclusion by assumption.

The principal justifications for anchoring disparity inquiries off the shoals of com-pensatory damages are its administrability and the sense of finitude it provides. But both these factors underdetermine the doctrine because it would be equally administrable to al-ways award a billion dollars or zero dollars in extra-compensatory damages regardless of the tort or to impose a flat limit of $500 for punitive damages. Once we’re in the business of reasoning out extra-compensatory damages to reach a non-absurd result, we should be able to offer relevant reasons for our decisions. The current doctrine is substantially lacking one, especially because the cost-internalization proponents also criticize the use of com-pensatory damages anchors. Notwithstanding the fact that there is little justification for insisting on a relationship between compensatory damages and retribution or deterrence, some courts have uncritically fastened to it.

On top of the problematic use of compensatory damages, the disparity analysis is undermined by the Court’s preference for a presumption of a single digit multiplier, which may lead courts to apply the single digit multiplier even in cases where the rationales for retribution, victim-vindication, or cost internalization require more, either separately or in combination. Indeed, the preliminary evidence supports this concern.

Like the compensatory damages anchor, a presumptive single digit multiplier is re-puted to help achieve administrability and some degree of notice about the bounds of one’s liability. But even after State Farm, the pretense to such predictability is overstated. In-deed one might wonder just how much notice is afforded when juries can basically choose virtually any multiplier less than 10.

Importantly, administrability and notice are at least as well satisfied by the retribu-tive damages scheme. A guidelines-based reprehensibility scale is not substantially more difficult to apply than the determination currently made by juries, which judges subse-quently review in an hoc manner. More importantly, the retributive damages structure provides far more particular notice to defendants about their potential liability than is pro-vided for by the current regime of punitive damages regulation, wherein most assessments of punitive damages will receive a pass on scrutiny as long as it is nine times or less than the amount of compensatory damages.

Thus, especially in light of the Court’s stated aversion to regulating extraordinary criminal punishments against defendants, there would be little basis for objecting to civil penalties that would ensure the defendant did not profit from his action and that removed no more than (say) 10% of his wealth and would do so only in a manner where the defen-dant enjoyed the benefit of various procedural safeguards. Recall that retributive dam-ages also abide by an intent requirement by which a defendant should be given the oppor-tunity to internalize the values of retributive justice. Thus, if retributive damages were set so high as to economically destroy or bankrupt a defendant, that would go too far – at least from the perspective that views retributive damages’ purpose as an intermediate sanction, rather than one that results from a full-fledged criminal prosecution.

In sum, it is doubtful that the retributive damages structure is constitutionally in-firm. At worst, and assuming the Court extended no special deference to this intricate scheme of intermediate sanctions, it may mean that in certain cases, the jury’s award of an amount of punitive damages is deemed excessive, a determination that applies now in ju-risdictions that apply a whole range of structures and procedures, but which offer far less in the way of notice and even-handedness than the structure I’ve advocated. And, as I inti-mated earlier, a jurisdiction that took pains to structure the distribution of punitive damages in the careful manner advocated here would have, by my lights, done at least what is neces-sary to survive constitutional scrutiny under the Due Process Clause.

Indeed, in light of the fact that the Court has in the past allowed horrifically long sentences to be imposed on those whose misconduct is far less egregious than, say, Philip Morris’ conduct was, the structure of retributive damages—which would involve steep but relatively difficult to obtain awards of retributive damages—is a decent way of addressing the perverse approach the Court has adopted when portioning punishment over the last fif-teen years: i.e., with substantial excessiveness review of punitive damages and very limited review of excessiveness in the imposition of prison incarceration.

The last point about constitutional law worth mentioning here focuses on the de-fendant’s wealth. Recall from Part III that the reprehensibility of the defendant’s miscon-duct will in turn track a percentage of the defendant’s wealth (or net value, in the case of entities). Various jurisdictions around the country currently inform juries that they may consider the defendant’s wealth in trying to figure an amount of punitive damages that will adequately punish and deter the defendant. The Supreme Court has not held that a de-fendant’s wealth cannot be factored into the amount of punitive damages. Rather, what the Court has said is that wealthy defendants are just as entitled to fair notice as “impecunious individuals.” The structure of retributive damages discussed in Part III provides constitu-tionally adequate notice designed to communicate that sanctions for reckless or malicious wrongdoing won’t be mere luxury taxes on the rich.

CONCLUSION

Structured properly, retributive damages awards are a pragmatic form of redress against anti-social misconduct, especially when undertaken by wealthy and powerful enti-ties. In this respect, there’s a real synergy between retributive damages and the work of “social justice” tort theorists. On the other hand, a dose of retributive damages is strong medicine, and it needs to be distributed far more sensitively to the values of equality, pre-dictability, and modesty than the careless way punitive damages are currently awarded and reviewed by courts.

This Article, the first of a trilogy, has tried to extend substantial consideration to these and other relevant concerns. Providing a framework to translate the values and limits of retributive justice into a practical scheme of retributive damages, the Article has identi-fied what sorts of conduct should warrant this intermediate sanction, what factors should inform the amount of retributive damages, and who should receive retributive damages and in what relevant proportions. While this Article provides the foundations of retributive damages, in truth, more needs to be said about their contours: specifically about how to implement retributive damages in simple and complex litigation contexts. In the com-panion articles to this one, I take up that challenge.

Retributive Damages: The Case for Partial Outsourcing of Retributive Justice to the Tort System

In earlier posts gathered here, I laid out the Introduction and some relevant background regarding
punitive damages law, recent scholarship, and retributive justice. Subsequent posts addressed: which misconduct should be the subject of retributive damages and whether non-victims of wrongdoing should be empowered to bring claims for retributive damages (and if so, under what restrictions); how to bring rationality and fairness to determining the amount of retributive damages; and how to allocate the retributive damages among the state, lawyer and plaintiff.

Today's post focuses on the case for developing an intermediate sanction of retributive damages that follows the structure described earlier. The material below appears in unfootnoted and unformatted form, but you can read a draft of the whole article with apparatus on SSRN here. Feel free to send me your thoughts via email.

MOTIVATING RETRIBUTIVE DAMAGES

Knowing what they look like, we can now try to explain the affirmative rationale for retributive damages awards. Section A examines the particular strengths of retributive damages against powerful and wealthy entities and individuals in particular. Section B ex-plains what a retributive damages scheme in general can achieve. Section C summarizes these benefits and articulates the comparative advantages of retributive damages vis-à-vis compensatory damages, class actions, criminal sanctions, and extra-compensatory damages awarded for victim-vindication or cost-internalization. Last, in Section D, I explain why retributive damages should remain a supplement to, rather than a substitute for, traditional criminal punishment.

A. Retributive Damages Against the Wealthy or Powerful

Perhaps the most important reason for making retributive damages available is to facilitate a modest form of punishment that is otherwise especially difficult to obtain against wealthy and powerful persons and entities. In other words, even when the criminal justice system would normally seek to punish offenders for serious wrongs, it might be par-ticularly difficult to do so when the offender is a wealthy or powerful person or entity. In such situations, retributive damages proceedings might generate relevant information (spe-cifically information related to a defendant’s mens rea) for possible subsequent prosecution efforts against the defendant or related parties by the state that would not be made available by relying on compensatory damages suits alone.

1.  Obstacles to Investigating Misconduct

Retributive damages schemes are attractive because they help overcome the diffi-culties associated with the historically scant investigation of wrongdoing by powerful and wealthy individuals and entities. As Professor Darryl Brown points out, many kinds of white-collar or corporate misconduct are harder to investigate because, compared to street crime, they are both more private (in the sense of obscured from view) and more complex.

In terms of privacy, the misconduct perpetrated by the wealthy and powerful oc-curs largely indoors, and as Professor Bill Stuntz, among others, noted various criminal procedure doctrines protect privacy. Coupled with the fact that inculpatory documents might be shielded by privilege available to those who can afford counsel before arrest, it is no surprise that the misconduct of wealthy and powerful entities and persons will more likely be obscured relative to the misconduct of those lacking substantial resources and op-erating in plain view of others.

Additionally, investigation of misconduct by wealthy and powerful persons and entities is impeded by the complexity of the criminal activity. As one former prosecutor put it, “The history of punishment in corporate cases is not very good,” because often “[t]hese are complex schemes, and it's sometimes difficult to unwind them from an investigative standpoint and ultimately explain them to a jury.” And as Professors Galanter and Luban have cogently explained, there are many times when reliance upon state-initiated investiga-tions is inadequate to the task of ferreting out the type of malfeasance that passes the repre-hensibility threshold associated with punitive damages.

To see how this pattern unfolds, consider the difficulty of detecting malfeasance in the context of manufacturing activity. Imagine a defendant manufactures a product and in the course of its design makes various calculations not to disclose substantial hazards that might be associated with its design. Consequently, various users are injured across the country. The local and state police are unlikely to detect problems with the product out-side their locality, at least initially. Moreover, the law enforcement authorities will have no reason to suspect that there were culpable decisions made at the company headquarters, of-ten in another state and outside their jurisdiction. As Professors Galanter and Luban de-scribe the problem,

Even federal authorities will have no reason to believe that anything other than a typical series of []accidents has occurred unless they perform a statistical analysis of the pattern. Suppose, then, that punitive damages were replaced by criminal sanctions in morally culpable product liability cases. Law enforcement would re-quire statistical analyses of all patterns of automobile accidents, and appliance ac-cidents, and pharmaceutical accidents, and heavy equipment accidents, and on and on, around the country, which is utterly impossible. Even if it were possible, the analysis would overlook those culpable injuries that do not leave a statistical fin-gerprint behind them. Finally, once an investigatory agency becomes convinced that an offense has occurred, it would have to investigate the offending company to establish culpable negligence. No federal agency has or could have the resources to carry out so many investigations, nor would we be likely to welcome a federal agency that is such a nosy intruder.

As Galanter and Luban observed about Ford’s failure to recall the Pinto, “the re-peated pattern of [car crashes and subsequent burnings] indicating a defective design emerges only after we consider evidence from many different states and jurisdictions. Thus, the entire pattern will not typically be investigated by state authorities.”

Similar difficulties occurred in the aftermath of the Catholic clergy sex abuse scandals, where Church officials suppressed vital information about the misconduct of its priests. In various jurisdictions where the Catholic Church had close relationships with local prosecutors and police officials, public investigation into the Church’s role was sty-mied because of affinities between officials and the Church. As described by Professor Lytton, only after dogged use of discovery and other private litigation tactics were plain-tiffs’ attorneys able to reveal the extent of the complicity by higher officials within the Church. In many situations, only once private litigants shared their information to the me-dia did law enforcement and state legislatures grapple with the misconduct they were oth-erwise ignoring or downplaying.

These examples illustrate how complex and private misconduct by wealthy or powerful individuals or entities can be quite hard to detect in the course of activity both within and across jurisdictions. Moreover, relying exclusively on public agencies to de-tect this misconduct is an inadequate strategy in a world governed by non-ideal conditions of democratic deliberation and scarce social resources. Indeed, in a regulatory environment often affected by agency capture, we should probably expect spotty government inspec-tions. As one agency official noted recently: “Private enforcement is a necessary sup-plement to the work that the [agency] does. It is also a safety valve against the potential capture of the agency by industry.” Indeed, even when government forces desire investi-gations, access to vital information may be impeded or blocked altogether by competent white-collar criminal defense lawyering. Needless to say, the threat of agency capture and obstructionist lawyering might also serve as obstacles to governmental prosecution of wrongdoing by powerful and wealthy persons or entities. Because of these impediments, it is unlikely, though not impossible, that a cadre of state investigators will effectively under-take national research—and then file suit at each of the state levels.

Although such coordination efforts can happen through the promise of compensa-tory damages alone or in a class action, there are two reasons to think retributive damages as I’ve described them are be an important supplemental tactic to achieve adequate detec-tion and punishment of private or complex misconduct. First, with compensatory dam-ages alone, the lawyers are not incentivized to inquire into the aspects of the defendants’ misconduct that reveals a reprehensible state of mind or mens rea. Satisfying the elements of a case that require mens rea is, on average, more expensive to pursue than satisfying the elements of a case that need only show negligence or strict liability. Without fees for re-tributive damages available, lawyers may decide to settle cases that involve culpable mis-conduct too cheaply. Second, if compensatory damages are really designed to compensate plaintiffs for actual harms to them, it hardly seems right that their lawyers should take a share of that compensation rather than be paid by the malfeasant defendant separately. The bill for the lawyers should not be conflated with the harms to the plaintiffs.

Because inducing public investigation of wrongdoing against financially formida-ble persons or entities within society is sometimes difficult to achieve, the prospect of obtaining (fees and rewards for) retributive damages motivates plaintiffs and lawyers will-ing and financially able to ferret out whether harms or risks were culpably undertaken. In short, retributive damages may work as an effective supplemental strategy of law enforce-ment, a form of sousveillance against the rich and powerful who might otherwise evade the surveillance undertaken by public law enforcement agencies.

2. Obstacles to Prosecuting Misconduct

Beyond simple investigation, we must also consider the comparative difficulty of prosecuting crimes (or claims generally) against wealthy persons or entities. Such “white-collar” defendants often have excellent counsel, and, conventional wisdom to the contrary, are often able to overwhelm the relatively scarce resources of the prosecution, es-pecially at the state level where the bulk of wrongdoing is prosecuted and punished. Put more modestly, skilled defense counsel will be effective, at least on the margins, at making the unreasonable seem reasonable, which is particularly helpful for defendants trying to es-tablish reasonable doubt about the ambiguous areas of moral wrongdoing sometimes asso-ciated with white-collar misconduct. As Galanter and Luban have noted, a variety of fac-tors help make prosecuting white-collar conduct more difficult:

White-collar criminals have more influence over sources of damaging information; the evidence of white-collar crimes may be more dispersed and less exposed; the definition of the crimes is typically more ambiguous, so that defendant behavior is more likely to look marginally legal and get the benefit of the doubt from prosecu-tors and judges; white-collar criminal defendants have more resources and are more sophisticated; agencies investigating white-collar crimes are more likely to allow precharge adversary hearings in which the defendant's lawyer can argue against indictment; the government is less likely to make arrests or physical searches in white-collar cases; white-collar indictments are more delayed, allowing better preparation for defense; and the defense lawyer in white-collar criminal cases is usually better qualified.

To be sure, the odds for federal prosecutors have substantially improved against corporations and executives, particularly in recent years with respect to securities fraud. Prosecutors now routinely use threats of conspiracy prosecutions against low-level execu-tives to secure cooperating witnesses, and through those witnesses, they can generate copi-ous amounts of information about the more senior officials and the misconduct within the corporate bureaucracy. Additionally, in some jurisdictions, prosecutors offer leniency for the “fruits of employer coercion of employees to waive their rights to silence,” waiver of the entity’s attorney-client privilege, or the termination of indemnification of attorney fees to the entity’s agents. Taken together, these constitute increasingly powerful incentives for persons or entities to share information about potential culpability.

In response, critics have sounded alarms over the sweeping effects of such appar-ent over-criminalization and over-enforcement, suggesting instead that much of this mis-conduct is better left addressed through the civil, not the criminal, system.

Unfortunately, the impediments to effective redress in the civil system are difficult to surmount, especially in a world without ready access to remedies like retributive dam-ages. The result, according to Professor Christine Hurt, is a criminal system that creates too much risk of severely punishing conduct that is not all that egregious while at the same time failing to ensure adequate redress against those whose actions warrant, at the very least, some form of intermediate sanction. In other words, it’s a system with too great a risk of Type I errors in the criminal context and too great a risk of Type II errors in the civil system.

3. The Low/High Problem With Criminal Penalties As Applied

The apparent imbalance espied by Professor Hurt suggests that retributive dam-ages, if properly designed, might also provide a way around what might be thought of the “low/high” problem as it applies especially to corporate criminal activity. As various scholars have demonstrated, non-custodial criminal penalties against persons and entities have in the past tended to be extremely low, often rendering them mere “costs of doing business” rather than signals that the conduct in question should be categorically prohib-ited. Additionally, notwithstanding the social stigma typically attaching to criminal con-victions, individuals within corporations themselves may feel somewhat insensitive to that stigma because responsibility for particular misconduct is dispersed across persons, place and time. The consequences are predictable in such situations: defendants might view fines as prices, not sanctions.

For example, where state fines were set too low, railroads in Wisconsin repeatedly ignored their lack of compliance with rules necessitating repairs that could cause fires to brush that had not been removed from the area around the tracks. Only after a substantial punitive damages award was levied against the railroad did the company strengthen efforts to ensure compliance with the rules governing maintenance and brush-clearance issued by the state’s Department of Natural Resources. Similar examples abound. As alluded to earlier, legislatures have responded selectively to the problem of low penalties in recent years. In the federal context, the focus of these high penalties has been on preventing and punishing securities fraud.

But with these high criminal penalties lies an additional problem, related to con-cerns of proportionality: overkill in the form of disproportionate punishment. Critics of corporate criminal liability have raised concerns about the danger that indictments against the corporation pose: in particular, they might destroy the entire company and the jobs of innocent persons instead of focusing on the malfeasance of the bad actors or the failure of the managers and owners to adequately control the bad actors. Consequently, companies might be both too weak (against the perils associated with corporate criminal prosecution) and too strong (against regulatory powers where the investigative functions are stymied or corrupted through capture or rent-seeking). As a result, the prospect of a retributive dam-ages scheme as an intermediate sanction expands the arsenal of tools to facilitate compli-ance and the detection and punishment of misconduct by wealthy and well-organized per-sons or organizations.

B. What Might Retributive Damages Achieve Generally?

This section explains why retributive damages might be a socially beneficial policy prescription broadly speaking. In light of the account in Part II, it’s not especially hard to see why we might establish a system of criminal law and punishment to serve these pur-poses. It is a bit harder to see why we might additionally use a civil system to impose re-tributive damages. Why not simply invest more social resources in the criminal justice sys-tem if we are concerned that the project of retributive justice is being given short shrift? Retributive damages are not necessarily a more efficient sanction, but they may be ap-pealing for reasons described below.

1.  Retributive Justice in the Real World

Making retributive damages available provides society some flexibility it might not otherwise have regarding allocation of public resources. To see why, we must first appreci-ate the major differences between a retributive damages action and a criminal penalty: a) criminal penalties are usually prosecuted exclusively by a state attorney, b) defendants in American criminal actions are entitled to a richer panoply of procedural safeguards, c) criminal penalties often lead to a host of collateral sanctions, and d) criminal penalties may include prison time for individual defendants. The combination of these factors works to create a stronger social stigma or condemnation of the defendant than there would be in the absence of these factors. Of course, retributive damages are still a coercive condemnatory sanction that sets defendants back in a position worse than where they were prior to the misconduct; thus, they do serve to effectuate retributive justice. But those differences ren-der retributive damages an intermediate sanction, lying between compensatory damages and criminal penalties.

A society that did not want to spend scarce prosecutorial resources investigating and prosecuting minor wrongs could nonetheless make available a legal forum where per-sons can seek bring actions against malefactors whose misdeeds have failed to trigger criminal prosecution because of more urgent priorities in prosecutors’ offices. The bare reality is that prosecutors typically don’t have the resources to investigate and prosecute all the criminal conduct that arises. Thus the tort system serves as a corrective to public in-action in some cases, allowing private parties to vindicate the kinds of wrongs the criminal system might, in a fully-funded world, pursue. Insofar as the CCR not only permits reason-able punishment but also encourages the punishment of legal offenses (to reduce Type II errors and avoid the sense of impunidad that would be communicated to offenders and ex-pressed to the public), a retributive damages structure is a way of dealing with scarce pub-lic resources that must be allocated among a variety of compelling moral priorities. Of course, if this is the rationale, we need to ensure that defendants receive procedural protec-tions necessary for imposing an intermediate sanction on them: access to counsel, an in-termediate standard of proof (i.e., clear and convincing evidence), protections against du-plicative punishment for the same misconduct toward the same victim; and guidelines that both inform and limit the amount of penalties a defendant faces on account of its miscon-duct.

2.  Proportionality

A second general rationale for a retributive damages scheme is that it might better facilitate the promotion of proportional sanctioning between misconduct and penalties. Re-tributivists and others might want a softer sanction for misconduct that is not worthy of be-ing deemed or condemned in the strongest terms as “criminal.” Allowing for retributive damages facilitates that goal, in particular because incarceration and collateral sanctions (e.g., disenfranchisement, residency restrictions) would not attach to the award of retribu-tive damages under this proposal. Thus, in some cases, retributive damages might be a penalty that seems suitable to the comparatively less severe wrongdoing at hand. Because of the collateral consequences ensuing from a criminal conviction, even a criminal fine might be viewed as too onerous a penalty for certain misconduct. Thus, prosecutors could look at successful retributive damages actions and determine whether additional prosecution is appropriate.

One might respond by simply asking to expand the range of criminal sanctions so that some criminal penalties do not carry collateral consequences in less severe cases. That’s not a bad idea, as far as it goes. But if we think there is something distinctive and worth preserving about the higher level of condemnation communicated through a criminal sanction compared to the presumably lower level of condemnation communicated with a civil sanction, then keeping some of the relevant and reasonable collateral consequences of conviction might better facilitate the realization of that gradation. And inasmuch as ex-panding the range of criminal sanctions would serve, arguendo, to impede the availability of retributive damages in the tort system, it would likely impede the realization of retribu-tive justice in situations of scarce public resources, such as those discussed immediately above.

3.  Encouraging Market Transactions

Imagine X Corp wants to develop a product for consumers. Y Corp makes a simi-lar product using proprietary information. X Corp decides to steal Y Corp’s information and manufactures the new product at a lower price than Y Corp. By ensuring that X Corp will be in a worse position if it is caught for its theft, the availability of retributive damages encourages market transactions with respect to misconduct that violates property rules, that is, those rules which require parties to negotiate over the transfer of legal entitlements prior to their exchange. When a defendant knows he has to pay more in excess of its gain or the harm caused – and retributive damages will always exceed more than the greater of these two figures – a defendant in X Corp’s position should prefer to bargain. Unsurpris-ingly, this is part of the logic behind some criminal penalties too.

This structure is beneficial for two reasons. First, the transaction costs associated with ex ante bargaining in the marketplace are likely to be lower than those associated with ex post litigation in the courts. Second, to the extent that fewer potential defendants take rights (and possibly pay for them ex post through the tort system), it helps eliminate the wasteful precautions associated with trying to prevent mistreatment of one’s rights. At the same time, retributive damages might perform this task more cheaply or effectively than use of criminal sanctions, since there are fewer deleterious consequences to the defen-dant and fewer costs associated with enforcing the rights of criminal defendants. If we want to encourage market transactions at a cheaper social cost than criminal penalties, which often have socially burdensome and problematic collateral sanctions associated with them, retributive damages might provide a superior tool to do so, at least in contexts in-volving violation of property rules.

C. The Comparative Benefits of Retributive Damages

As Nietzsche pointed out, punishment’s utilities are overdetermined. I take the central benefit of retributive damages to be the fact that their availability helps effectuate the good of retributive justice by reducing the incidence of Type I and Type II errors. By imposing an intermediate sanction only on reckless or malicious wrongdoing, a retributive damages scheme will facilitate conventional criminal law punishment against those pock-ets of society that have traditionally been able to resist punishment by virtue of the rela-tively private and complex nature of their misconduct. This misconduct would, ex hy-pothesis, otherwise be on the agenda of the prosecutor’s office but, because of difficulties in detecting the private and complex wrongdoing, escape such condign punishment. Re-tributive damages schemes also: facilitate legal condemnation for wrongdoing that is not on a prosecutor’s office agenda because of pressing budget constraints and political re-sponsibilities (or improper external pressures); afford more granular proportionality be-tween misconduct and penalty and thus avoid overkill by use of criminal indictments against corporate entities; and encourage market transactions and concomitantly reduce so-cially wasteful expenditures on preventions against unauthorized takings or violations of rights. To the extent retributive damages can aid in achieving these purposes, one can see what public benefits might accrue from the availability of awarding retributive damages to the state and private plaintiffs.

One might wonder whether some of these benefits arise when extra-compensatory or compensatory damages are available on non-retributive grounds and in class actions. Below is a chart in which I summarize how retributive damages would stack up against re-liance upon other remedies and mechanisms. [OMITTED. SEE ARTICLE ON SSRN FOR CHART.]

As one can see, class actions seeking only compensatory damages might address the incentives problem for lawyers to bring cases of misconduct. But so long as they were seeking compensation for the plaintiff or cost-internalization for the class of plaintiffs, they would not need to inquire into evidence that indicated malice or recklessness. That de-prives the state of knowledge possibly relevant to imposing retribution on wrongdoers and issues no judgment of condemnation. From an economic perspective, compensatory dam-ages simply price behavior rather than punish it, allowing defendants to undertake all sorts of misconduct if they are willing to pay damages. If extra-compensatory damages were awarded on the grounds of cost-internalization alone, they would suffer from the same problem. They would leave the defendant no worse off than a position in which they sim-ply price their conduct according to its harms. Damages designed to achieve cost internali-zation might be appropriate when the defendant acts with adequate regard for the security and well-being of others, but they are inadequate, on a retributivist rationale, when the de-fendant’s misconduct evinces grossly insufficient care for the interests and well-being of others.

Extra-compensatory damages might also be contemplated solely for the purpose of victim-vindication (what I have called “aggravated damages”). These aggravated damages would go to the plaintiff as compensation for uncompensated dignity harms (separate and apart from pain and suffering). While aggravated damages might encourage lawyers to fer-ret out evidence of a defendant’s state of mind, they would fail to do much for the public’s interest in retributive justice. That’s because with aggravated damages, the victim is em-powered to seek or not seek such damages; Type II errors are more likely, since the victim-vindication model doesn’t purport to restrict the plaintiff from either forbearing from seek-ing punitive damages or to settle at an amount lower than what is necessary to signal to the defendant to forbear from such misconduct in the future. Moreover, proponents of victim-vindication models haven’t embraced any real constraints on jury discretion, which gives awards of punitive damages a very ad hoc veneer.

Importantly, while retributive damages have some distinctive advantages, there is no good reason to doubt that they can interact well with cost-internalization strategies (like class actions for compensatory damages) to avoid working at cross-purposes or duplica-tion. While I leave that proposition to defend in the next article, for now, I hope I have brought into better focus the intelligibility and advantages of retributive damages as com-pared to compensatory damages, criminal sanctions, or damages designed to achieve cost-internalization and victim-vindication.

D. Why Not Private Criminal Punishment?

Thus far I have explained why the state would be interested in outsourcing part of its investigative and prosecuting functions to private parties and why such outsourcing would not be inherently disruptive to the project of retributive justice. What I also need to explain is the attractiveness of retributive damages vis-à-vis the private enforcement of the criminal justice system. Some of the benefits described above might arise if we had statutes that permitted private citizens to serve as prosecutors under the criminal law, or if we had mechanisms that allowed private citizens to compel prosecutions in the criminal justice system, or at least forced prosecutors to give reasons for declining to prosecute certain ac-tions.

Without arguing that retributive damages would be a superior strategy to all these other mechanisms, let me raise a few cautionary points. If we allowed only private actions brought under the criminal law, we would lose both the expertise and the disciplinary op-portunities to keep the prosecutor in check, facts that occur as a result of the government serving as a repeat player in the criminal justice system. There would also be a risk that the criminal justice system’s moral credibility would be undermined (further?) since only those with time and resources would serve to prosecute claims and that would systematically dis-advantage the poor.

If we allowed a private right of action under the criminal law to supplement rather than supplant the government’s work, other problems unfold: there might be races to the courthouse between public and private representatives to avoid double jeopardy concerns; government prosecutors would have less incentive to do its job if the private sector could wholly displace it; and, most importantly, we might have a higher error rate of both Type I and Type II kinds if private citizens’ or their hired agents couldn’t be counted on to do their work competently, diligently, and fairly in large part because they were not repeat players and because they could reasonably be viewed as more biased (whether consciously or unconsciously) against possible defendants. It would also be hard to imagine how one privatizes prosecutions without privatizing the investigative function of police too.

A more modest proposal would be to allow private citizens to lodge complaints or request explanations for prosecutorial inactivity, but that’s something that already exists in a few jurisdictions, and fits compatibly with our current regime and a scheme of retributive damages. Another alternative, which some have suggested, would be a public regulatory system with fines and sanctions, and rewards and lawyers’ fees for whistle-blowers who call attention to unsafe products or conditions, the detection efforts of which can be dele-gated to private attorneys general who might not be actual victims. Assuming this model introduced intermediate sanctions and had the procedural safeguards defendants would need, this model could plausibly achieve many of the benefits retributive damages actions seek to achieve. However, it is unclear whether an adjudication and penalty through an administrative agency would suffice in actually conveying the condemnation through communal judgment that a judgment of retributive damages would through the use of a jury trial and/or judge. Moreover, there might be some efficiency gains by having retribu-tive damages actions ride piggyback to the tort system. If we relied on a public regulatory system to do some of the work done by punitive damages now, it might require the devel-opment of a whole new governmental apparatus. Indeed, a public regulatory system, at least as some of its advocates would have it, also requires the introduction of large social insurance schemes to replace tort law. My sense is that these alternatives are not meant to render retributive judgments but simply to ensure compensation and deterrence more effi-ciently.

By contrast, the basic structure for retributive damages already exists within our extant tort law system and would require just a few modifications. Indeed, if a state wanted to be serious about retributive damages as a fair scheme of imposing an intermedi-ate sanction, there are only a handful of critical and relatively straightforward steps it must take. First, pass a statute that says retributive damages will be available for X, Y and Z kinds of misconduct. Second, declare which, if any, of these wrongs (just X and Y?) are enforceable by private attorneys general after the government has declined to sue. Next, indicate that all suits must initially allege retributive damages in the complaint and that all settlements will have to be approved by the court and the attorney general's relevant office. Then, devise guidelines and commentary to track reprehensibility and assess what percent-ages of wealth or net value will correspond. Fifth, draft instructions for juries on retribu-tive damages inspired by the instructions appended to this article. Last, allow defendants to credit retributive damages against any subsequent criminal penalties.

Retributive Damages: How much and to whom?

In earlier posts gathered here, I laid out the Introduction and some relevant background regarding
punitive damages law, recent scholarship, and retributive justice. Yesterday's  post articulated some of the basic structure for retributive damages, focusing on what misconduct should be the subject of retributive damages and whether non-victims of wrongdoing should be empowered to bring claims for retributive damages (and if so, under what restrictions).

Today's post discusses a) how to bring rationality and fairness to determining the amount of retributive damages, b) how to allocate the retributive damages among the state, lawyer and plaintiff, and c) how this account offers prosaic justice, not poetic justice--and why that's ok, contra Luban, Galanter, Sebok, and Zipursky. The material below appears in unfootnoted and unformatted form, but you can read a draft of the whole article with apparatus on SSRN here. Feel free to send me your thoughts via email.

Implementing Fair Notice for Amounts of Retributive Damages

This section’s discussion lays out the key factors affecting the amount of retribu-tive damages. There are several elements that must be considered in determining the amount of retributive damages in a given case.

A concern for achieving even-handedness among similar cases is important from a variety of retributivist and rule of law perspectives. From this vantage point, a defendant should not face an award of retributive damages that varies substantially from another de-fendant’s punishment when both committed the same misconduct and are being punished by the same sovereign in the same jurisdiction. Consistent with the retributivist com-mitment to rule of law values, individuals should have some reasonable sense of not only what kind of conduct is prohibited by pain of retributive damages liability but also what kind of penalty and how much of a penalty they might predictably face as well. This section tries to provide a scheme that can help implement fair notice and horizontal equality regarding the scope of damages. It also addresses some of the difficult questions arising in the context of settlement.

1. Reprehensibility-Based Damages Based on Scaled Guidelines

The main feature of a retributive damages award is a reprehensibility-based fine. This fine’s amount requires two kinds of measurements. The first is a number on a repre-hensibility scale. The second measurement translates that reprehensibility score to an amount of damages.

Thus, as a preliminary matter, state legislatures or a sentencing commission should devise a set of guidelines for juries (or judges in bench trials) to help them assess how rep-rehensible the misconduct is. The guidelines would calibrate reprehensibility, perhaps on a scale of 1-20, with 20 being the worst, using the factors, discussed earlier, that courts currently use to evaluate the defendant’s reprehensibility. Some factors might increase rep-rehensibility, such as a defendant’s history of past adjudicated misconduct, and other factors might mitigate, such as pre-existing compliance programs or remedial actions and restitution measures taken by the defendant upon discovery of the misconduct. In addition, the guidelines would provide hypothetical examples of misconduct that fell on various places on the scale.

This kind of scaling approach would enhance not only fair notice and horizontal equality, but also rational decision-making by jurors. It would do so by reducing the risk of isolationism, which is a cognitive bias that arises when individuals are required to make judgments in isolation of other factors that provide a richer context. The scheme suggested here enables jurors to deliberate over and contextualize the conduct they are assessing in comparison to other types of conduct. For example, if viewed separately a jury may rank a given financial harm as a 6 and a given physical harm as a 7. But if the two scenarios are viewed together, the jury may rank the financial harm as a 5 and the physical harm as a 9. The rankings may be different when conduct is ranked alone because “judgments are spon-taneously normalized to the frame of reference implied by the category.” Sunstein et al. provide another example that may be easier to understand. When viewed separately, the answers to both the following questions may be “yes”: “is an eagle large?” and “is a cabin small?” But when viewed together, one’s answers may change because the frame of ref-erence is wider than one particular implied category. Hence, the examples of conduct pro-vided to juries should feature conduct from a wide spectrum of categories so that retribu-tive damages can be calibrated to be coherent across a broad array of conduct, instead of simply one separate category of conduct.

Bear in mind that determining reprehensibility along a scale is only part of the task. We must also determine how the reprehensibility translates to the amount of the pen-alty. According to Professors Sunstein et al., jurors in psychology experiments demonstrate great difficulty in translating their condemnation of defendants’ behavior into predictable scales of dollar amounts. (Some scholars, looking at real life data, contest that juries dis-pense unpredictable amounts of punitive damages. )

To reduce the difficulties juries or judges might encounter when called to translate “outrage into dollars,” the number on the reprehensibility scale would track some portion of the individual defendant’s net wealth. The precise tracking between reprehensibility and wealth would be decided ex ante by a legislature or a state sentencing commission, but that linkage need not be communicated to the jury. The jury’s focus instead would be on what happened and the moral evaluation of the defendant’s reprehensibility in light of the guidelines and commentary. With a corporation, we would look at the worth of the enter-prise as measured by valuation models used on Wall Street. Reliance on net wealth of enti-ties can be misleading because it would simply encourage corporations to use debt to fi-nance themselves instead of equity.

To illustrate, a finding of 2 on the scale could lead to a retributive damages award of 1% of defendant’s net wealth, and a finding of 20 could lead to 10% of the defendant’s value being assessed. Scaling the amount of the penalty to a percentage of wealth is a bit unorthodox in this country but it is not without precedent. Currently more than a dozen ju-risdictions use a similar program of day fines that are prevalent in

Europe

, by which a judge determines the severity of the offense with reference to a number, and that number is multiplied by the income a defendant has on a daily basis.

This kind of scaling to wealth or value is important for four reasons: it avoids emit-ting the wrong signals to the public about the worth of poor people in cases involving physical injury; it facilitates rational jury decision making; it helps reduce, but does not eliminate, the problem of the diminishing utility of money; and last, it provides reasonable incentives for plaintiffs’ lawyers to take cases even after Philip Morris. Let me elaborate each reason.

The first major advantage of a reprehensibility-scaled guidelines approach is that it ensures that the reprehensibility of the defendant’s misconduct is what is being measured and punished, rather than say, morally irrelevant facts about the underlying tort. As ex-plained in Part I.A., various jurisdictions have insisted that the amount of punitive damages be tethered tightly to the amount of compensatory damages awarded.

This tethering is unreasonable from a perspective of retributive punishment, espe-cially in cases involving or risking physical injury because doing so is inconsistent with the belief in the equal worth of human life under the law. When a defendant’s misconduct kills or injures a poor person – i.e., someone whose death or injury triggers smaller payouts in compensatory damages under conventional valuation models – such misconduct will yield a lower punitive damages award where there is a requirement that punitive damages be based on compensatory damages than if the defendant killed or injured a wealthy per-son. Not only is this outcome objectionable from a perspective that values equal respect for all persons before the law, it will encourage defendants to undertake unjustifiably risky conduct in a manner that will disproportionately affect the poor and disenfranchised. If leg-islatures have imposed caps on punitive damages through using a certain multiple of the compensatory damages or a certain flat dollar amount, then the wealthy defendant will simply view the punitive damages award as just a tax or a cost of doing business. By contrast, the assessment of a percentage of wealth would help rupture that sense.

The second benefit of using percentages of net wealth or net value is that a defen-dant’s wealth won’t be used to affect the jury’s decision-making. This approach protects defendants by preventing trial courts devolving into “a field day in which the financial standing of the defendant would become a major issue.” In other words, the plan here does not allow for the introduction of evidence regarding the financial condition of the de-fendant because such information might poison the jury’s decision; instead the jury is tasked simply with assessing the reprehensibility of the misconduct.

A third advantage to assessing retributive damages this way is it helps ensure that the sting of the punishment will be more consistent across persons and that similarly situ-ated defendants who commit similar types of misconduct within a given jurisdiction will be punished in a roughly similar way. Under the retributive damages scheme, the worse the conduct, the higher the percentage of net wealth that will be forfeited. Of course, given that the marginal utility of money diminishes, one might think there is a need for progressively staggered percentages that increase as a function of both reprehensibility and wealth (or value). It’s quite difficult, however, for legislatures or sentencing commissions to assess different marginal utility functions for different persons.

Moreover, there is a principled reason to treat similar offenders who commit simi-lar misconduct in similar manners, and thus the principle of equality under which retribu-tive punishment serves would likely be undermined by a progressively increasing punish-ment structure because the variability of marginal utility rates would be idiosyncratic across persons (or entities). At least with flat fines (dollar amounts) or flat percentages of wealth, the equality principle can be plausibly invoked to most people. Thus, because scal-ing retributive damages “progressively” is an issue whose outcome I don’t think retributive theory can resolve with firmness, I would counsel caution. Moving from fixed dollar amounts or multiples based on compensatory damages to fixed percentages of wealth re-gardless of the wealth of the defendant would itself be a substantial improvement.

Last, there might be some additional benefit to the approach described here, one that is especially salient after the Court’s Philip Morris decision. As mentioned earlier, the Court ruled that a jury may not award punitive damages based on the amount of harm caused to nonparties to the litigation. Although the reason for this holding makes good and under-appreciated sense from a retributivist perspective – a person ought not be punished for conduct that has not been clearly proven to be the defendant’s culpable misconduct, es-pecially if the defendant has various defenses that could be raised as against particular claimants – the new holding poses a substantial risk of reducing incentives to plaintiffs and their counsel because they cannot pursue a jackpot of punitive damages based on “total harm.” If a jurisdiction decided (against my advice offered below) to allocate the retribu-tive damages awards to the plaintiff and her counsel, then the reprehensibility-based guide-lines approach reduces the problem of diminished incentives in the aftermath of Philip Morris. (But to my mind a better solution is for the state to take the award and to simply provide that the defendant pay lawyer’s fees based on risk, time and expense.)

Some additional points warrant attention. Consistent with the virtue of retributive modesty, mentioned in Part II, in situations where a defendant has reason to doubt its vi-ability if required to pay one lump sum, legislatures may authorize courts to order defen-dants to pay the amount as a percentage of profits in coming years. Additionally, if one is concerned that a defendant committed grave misconduct and then undertook to restructure its finances to make it appear that it cannot pay its tab, the courts might adjust the retribu-tive damages based on the wealth or value of the defendant at the time the misconduct last occurred.

The scheme described above furnishes potential defendants little basis for com-plaint that the amount or award of retributive damages is a surprise, since the standards that would be applied to them are no different than the guidelines that have now become famil-iar in many jurisdictions when assessing criminal liability and sentencing issues. Of course, the defendants in criminal cases have more procedures in place, and thus, if we are deputiz-ing plaintiffs to facilitate punishment of the defendant through an intermediate sanction, this requires enhancing at least some of the procedural safeguards in place in retributive damages cases, an aspect of the argument I develop in greater detail in the next installment of this project.

2. Penalties for Gain-Stripping

In addition to the reprehensibility-based fine, courts should assess the net profit-ability of the misconduct, if any, toward the plaintiff involved. This determination is neces-sary because retributive damages awards signal two commitments: first, that misconduct of this sort should not occur, and second, if such misconduct does occur, the defendant should not profit from it. So, in addition to the reprehensibility-based fines, the amount of retribu-tive damages should also include the retrieval of whatever profits can be tied to the mis-conduct toward the plaintiff.

The gain-stripping penalty should be treated distinctly from the reprehensibility-based fine. Gain stripping alone puts the defendant at the status quo ante, which doesn’t communicate the wrongness of the action; adding the reprehensibility-based fine makes the defendant worse off for his culpable conduct, as he should be from a retributive perspec-tive. Thus, if the defendant were to pay a hypothetical reprehensibility fine of 200 and had gained from the misconduct 200, then the defendant should pay (at least) 400. That said, the gain of the defendant needs to be considered in light of the harms the defendant has been forced to compensate also. Thus, if the defendant gained 200 but is required to pay 100 to the plaintiff in compensatory damages, then the defendant really gained only 100, and so should be forced to pay the compensatory damages to the plaintiff (100), the extra profits (100), and then also pay a retributive damages award that puts the defendant in a worse position than earlier, based on how reprehensible the conduct was.

One caveat is necessary. Any gain-stripping penalty against the defendant will, in the aftermath of the Philip Morris decision, have to be limited to the gain the defendant made against the plaintiffs in the litigation rather than gains made against others who are strangers to the litigation. This also reduces the amount of potential reward to contingency fee-based plaintiffs’ lawyers, so states may need to enact provisions allowing for reason-able fees for plaintiffs’ lawyers in cases where retributive damages are warranted. I address this next.

3. Providing Litigation Fees and Expenses

In addition to gain-stripping and reprehensibility-based fines, the state must also consider the significance of having the defendant pay for litigation fees and expenses when determining retributive damages.

Though the state ought to receive the bulk of the retributive damages (for reasons I explain in the next Section), it needs to provide incentive for plaintiffs and their lawyers to bring retributive damages actions to the attention of the state. We need to determine how that general allocation strategy affects incentives for lawyers to bring retributive damages actions. If we assume that the state takes the lion’s share of the retributive damages penal-ties for the reprehensibility-based fine and the gain-stripping (in light of the public interest in retributive damages), we increase the likelihood that the plaintiff will have a difficult time in finding a lawyer to take the case absent compensation for fees and expenses. That’s because compensatory damages may not sufficiently motivate lawyers where the damages are insubstantial or uncertain. For cases where compensatory damages are uncertain or small, provision of lawyers’ fees provide motivation to tort lawyers who might not take these cases otherwise. Additionally, it incentivizes plaintiffs’ lawyers to find and promul-gate evidence of a defendant’s mens rea that they might not otherwise pursue if they were looking strictly for compensatory damages. Moreover, these issues cast a significant shadow over settlement discussions. So if we want to make sure high quality lawyers are marginally more attracted to this area of law than they would be under conditions that lead to compensatory damages only, we have to ensure fees are provided for to motivate private lawyers to invest in these cases.

If reasonable fees and expenses are awarded – and adjusted for risk, time, and ex-pertise – for all victorious plaintiffs in retributive damages claims, then that would create incentives for lawyers to bring good cases. It’s a good general rule, and reflects the same commitments to human values as when we make losing defendants in civil rights cases pay for the costs of litigation.

But it might also encourage suits with very little money at stake. Thus, the alloca-tion of lawyers’ fees will say a lot about how much should be spent on reducing Type II errors. If, for example, John maliciously stomps on exactly one of Neighbor Nancy’s prized roses in her presence, should Nancy have a retributive damages action against John for the sentimental and market value of the rose? If so, should John pay

Nancy

’s lawyer and the court costs too? A lawyer will bring suit here only if she thinks she will get paid if she prevails, unless she works for an entity (perhaps governmental or non-profit) that sub-sidizes these actions. But if lawyers aren’t available, it may mean that John can stomp on

Nancy

’s roses with impunity especially if he does it on the installment plan. There’s al-ways the threat of criminal sanctions to prevent John’s actions but prosecutors are also sometimes reluctant to charge low-value perpetrators.

Given its primary focus on the criminal justice system, retributive theory quite naturally doesn’t have a lot to say about the architectural design for solving this particular problem. The retributive interest is in encouraging high quality lawyers to invest in strong cases that vindicate the wrongs perpetrated against society. But various structures might be able to achieve this aside from a blanket rule awarding lawyers’ fees in successful retribu-tive damages awards. For instance, some jurisdictions might decide that the state prosecu-tor will seek retributive damages when the fear is that the defendant can’t afford to pay the lawyers’ fees. Alternatively, the state may decide to subsidize private lawyer’s fees out of the public fisc especially in cases susceptible to class treatment. One thing is clear. Juris-dictions facing competing moral obligations for scarce resources may decide that a conces-sion to administrative cost is necessary. Those that do make that choice will force a drag on the goal of using retributive damages to reduce Type II errors, but as stated in Part II, we can’t expect to spend every last unit of social resources on retributive justice. Trade-offs have to be made somewhere.

4. Rewards for Plaintiffs and the Risks of Collusion

Considering the interests of potential plaintiffs’ lawyers in this scheme is not enough. It would only create an incentive for enterprising lawyers to find plaintiffs. It would not do the job of channeling plaintiffs to lawyers, especially if the aggravation of a lawsuit coupled with the chance of not winning were otherwise sufficient to dissuade a plaintiff from bringing suit. The availability of retributive damages with some portion of it going to the plaintiff creates the conditions for more enforcement of the public values at stake. From the public’s perspective, then, the amount of retributive damages awarded to the plaintiff should be the amount necessary to reward the plaintiff for bringing the suit to the lawyer and the lawyer for bringing the suit to public attention. Thus, in addition to the fee structures discussed immediately above, jurisdictions could provide that plaintiffs in victorious retributive damages suits will receive, say, a $10,000 finder’s fee, in addition to compensatory damages if applicable.

The flat fee reward encourages all citizens to bring cases warranting retributive justice without making the windfall to the plaintiff contingent on morally arbitrary features such as the defendant’s wealth. The benefit of such a finder’s fee is it makes the project of retributive justice likely while being less susceptible to lottery effects that undermine re-tributivism’s commitment to fairness and equality across persons.

The flat fee award might create a risk of collusion such that defendants would try to “bribe” plaintiffs to settle for, per our example, $10,001 above their compensatory dam-ages. If we adopted the flat fee award under our current system, we would encourage de-fendants to pay for wrongs they might never have been committed to make suits go away. Meanwhile, secret settlements of this sort embolden the original wrongdoers who are never held liable – are never confronted with their wrongdoing – for wrongs that they actually did commit.

To avoid these problems, the litigation process should take three steps. First, plain-tiffs must signal in their initial complaint that they are seeking retributive damages; they must also lodge a copy of the initial complaint with a state attorney general’s representa-tive. Second, courts must scrutinize and make transparent all settlements of all suits where retributive damages claims are lodged in the initial complaint. Third, the state attorney general’s representative has to either agree to the settlement or buy the retributive damages claims of plaintiffs (for the finder’s fee) so that the state can prosecute the retributive dam-ages aspect of the litigation. These rules would prevent private parties from settling in a way that deprives the public potentially critical information involving public misconduct and conveys to the court (and the state) a basis for scrutinizing any settlements that arise regarding the nature of the misconduct. Moreover, it also encourages defendants to contest liability for retributive damages unless they actually did something wrong.

Thus if a plaintiff decided to go ahead and allege retributive damages in the initial complaint, he would not be prohibited from settling subsequently. But this scenario would require plaintiffs to secure governmental approval to settle and it would force defendants to either admit responsibility and pay some amount of retributive damages to the state or to deny responsibility. If the defendant denied responsibility, he would have to convince the state’s representative that this particular claim was not worth pursuing because of lack of merit. Otherwise, the state — or conceivably another PAG if the state declined — could decide to risk litigating against the defendant. Clearly, the dynamics of settlement would change because defendants would have little incentive to settle without admitting liability. Knowing these diminished incentives, plaintiffs will be unlikely to bring suits merely for the purposes of harassment.

In sum, where retributive damages are warranted, a defendant should pay repre-hensibility-based fines, attorneys’ fees (informed by risk, time, expertise, and expenses), a state-determined flat award going directly to the plaintiff, and the elimination of any net gains made by the defendant from his misconduct toward the plaintiff that was not part of the compensatory damages to the plaintiff. This structure creates a quid pro quo. The finders’ fee helps channel cases to lawyers; the lawyers who invest in these cases are paid for the risk and effort they take. Meanwhile, defendants are made worse off as a result of their culpable misconduct. But before that happens, they enjoy a set of procedural safe-guards and advance legislative notice of what conduct instigates retributive damages in ways that are more restrained and predictable than the extant regimes in most jurisdictions around the nation.

C. Allocating Retributive Damages Chiefly to the State

By virtue of their punitive, educative, and preventive effects, retributive damages serve a public purpose in effectuating the CCR’s values described earlier in Part II. This public nature indicates why the defendant should pay retributive damages, but it does not yet explain who should receive the retributive damages awarded. Indeed, both the retribu-tive and the cost-internalization functions are largely satisfied by extracting damages (or other relevant remedies) from the defendant. But neither function seems at first blush to re-quire the plaintiff to be the exclusive beneficiary of that penalty. Let me try to elaborate why, at least with respect to retributive damages, the state should capture the bulk of the retributive damages award.

To be sure, there are good arguments that tort victims should have an avenue of re-dress for compensation for their losses, though of course compensation could alterna-tively be achieved through social insurance schemes. Perhaps tort victims should addi-tionally be compensated through “aggravated damages” for the dignity harm they have personally endured, if, for some reason, their compensatory damages did not properly en-compass those harms. But if extra-compensatory damages are inflicted to achieve the pub-lic’s interest in retributive justice, then we must see the recovery by private plaintiffs of any “retributive damages” as merely a contingent result, not one that is necessary or neces-sarily desirable.

Indeed, it is wrong-headed to award plaintiffs the bulk of retributive damages. The quintessentially socio-legal interest underlying the CCR counsels in favor of awarding only that incentive to the plaintiff and her lawyer necessary to bring the suit to public attention, and to dedicate the balance of the retributive damages award to other pressing social obli-gations, including but not limited to remedial services for crime victims or other law en-forcement budgets.

In the world before the Supreme Court’s recent Philip Morris decision, the risk of giving the plaintiff—who might only be one of many victims of the defendant’s conduct—the entire punitive damages award was that it would more likely undermine the state’s in-terest in ensuring a fair distribution of both compensatory and retributive damages for oth-ers, since a crippling retributive damages award might impair the availability of adequate compensation funds (or punitive damages) for future claimants. In light of the Court’s pro-nouncement that punitive damages may not be calibrated based on the amounts of harm in-flicted on other victims who are non-parties to the litigation, this reason is admittedly weaker as a justification for the state to take the lion’s share of retributive damages, espe-cially in simple litigation where the defendant’s misconduct only hurts one party.

But even in the post-Philip Morris context, giving more than a reasonable award (say, of $10,000) in addition to compensatory damages and litigation expenses would make the system vulnerable to lottery effects that are incompatible with a scheme of retributive justice committed to condemning misconduct in the public’s name, rather than the vic-tim’s. As I explained in greater detail in Part III.B.4, why should plaintiffs benefit from re-tributive damages because they had the “good fortune” of a wealthy injurer?

There are two additional reasons — not intrinsic to retributive theory per se but re-lated to the fairness considerations that animate retributive justice nonetheless — to ensure that plaintiffs don’t enjoy windfalls through awards of retributive damages. First, as long as lawyers’ fees are sufficient to induce counsel to take worthy cases, the state should treat retributive damages as a vehicle by which revenue may be raised efficiently and fairly. That efficiency is enhanced when most of the retributive damages awards go to the state because plaintiffs don’t plan on being victims of punitive damages awards and they, for the most part, have other incentives to pursue compensatory damages. In other words, the state can collect revenue for valuable social projects without deterring plaintiffs and their law-yers “from bringing suits and deterring difficult-to-detect or intentional torts.” A second consideration is that awards of retributive damages are windfalls to plaintiffs that work a form of lottery, which a risk-averse population would reject ex ante in favor of lower taxes (or more services).

D. Retributive Damages: Prosaic Justice, not Poetic Justice

Looking backward now, I want to highlight how this structure for retributive dam-ages reflects the CCR’s values and not revenge or victim-vindication.

First, decisions about the pursuit of retributive damages claims and their settlement are not left solely in the hands of the victim. The state basically has a veto on settlements in cases alleging retributive damage. Moreover, either through a PAG alone or in the seg-mented strategy I endorsed earlier, a defendant’s misconduct is subject to retributive dam-ages even if the victim doesn’t pursue retributive damages. These rules work to reduce Type II errors resulting from too much control the victims might have. And by tempering the power of the victim, the CCR also makes retributive damages less like revenge.

Indeed, if we recourse back to the previously mentioned differences between retri-bution and revenge, and apply those conceptual differences to retributive damages, we see that retributive damages, properly implemented, look quite like the kinds of conven-tional criminal fines used around the world. As I conceive them, retributive damages are subjected to proportionality safeguards; impartially administered by the state; attached di-rectly to the offender; and serve as an expression of the state’s power to coerce the offender in particular ways, such that certain ideas can be communicated through that coercion. Where appropriate, retributive damages might also be accompanied by other measures short of criminal sanctions such as injunctive relief.

To be sure, the plaintiff seeking retributive damages might feel vengeful, and might take pleasure in the suffering of the defendant, but, per the regime I have described, the state won’t punish the defendant by extracting the fine without its customary – or aspi-rational — concern for the free and equal nature of the offender. Thus, unlike revenge, re-tributive damages would not be available if typical excuses and justifications apply to the defendant’s actions. Moreover, nothing about retributive damages is inconsistent with re-tributivism’s intent requirement, discussed earlier, which requires that the punishment not preclude the internalization of the “sense of justice” that would allow for an offender to demonstrate his respect for the norms of moral responsibility, equal liberty under law, and democratic self-defense. Retributive damages, properly constrained as an intermediate sanction, do not prevent the defendant from ongoing activity nor do they aim at the defen-dant’s destruction or social isolation.

And while the private plaintiff may have no interest in the general application of the law, the state, which extracts the retributive damages fine, does. Specifically, a retribu-tive damages action brought by one plaintiff does nothing to preclude the punishment of other defendants for similar wrongs; does nothing to preclude punishing the same defen-dant for other wrongs against other victims; and – through its information-generating ef-fects about a defendant’s mens rea – actually facilitates the pursuit of criminal sanctions against the same defendant within the criminal justice system for the same wrongdoing to the plaintiff-victim as well as for other wrongs the defendant may have perpetrated against others. So retributive damages, at least when properly constrained and conceived, might actually increase the likelihood of fair and general applications of the law.

This concern for fair and general applications of the law is manifested also by seeking to ensure the defendant is not over-punished (generally and relative to similar of-fenders). Unlike the current regime, the retributive damages structure would permit a de-fendant to credit any retributive damages paid against any fines imposed in subsequent criminal actions brought by the state for the same misconduct. Conversely, defendants would not face retributive damages awards for certain misconduct if they have already been criminally convicted in that jurisdiction for that particular misconduct. In that situa-tion, the state has already done the hard work of ferreting out the misconduct and proving it beyond a reasonable doubt. Thus there would be no reason to give lawyers or plaintiffs a reward for pursuing retributive damages against an already convicted defendant. (Whether indictments should suffice is a harder issue. )

Additionally, this structure reflects the CCR’s concern for equality, proportionality and even-handedness. Across the realm of cases, state-drafted guidelines and commentary are used to inform judicial or juries’ deliberations about the appropriate level of the defen-dant’s reprehensibility. The goal behind this is to reduce Type I over-punishment and Type II under-punishment problems (compared to others) because the guidelines will give juries a far more effective way to avoid the ad hoc determinations that afflict the common law method of portioning punitive damages. Indeed, because the correct interpretation of the guidelines would effectively be a legal question susceptible to much less deference from reviewing courts, the jury’s role would be more circumscribed. Moreover, by restricting plaintiff’s share of the punitive damages award to a flat “finder’s fee,” we avoid creating lottery effects or windfalls to plaintiffs lucky enough to have a wealthy injurer. Last, the sanctions imposed under a retributive damages scheme communicates that the misconduct is prohibited and not simply priced based on morally arbitrary features of the victim, such as his earning power. In other words, plaintiffs won’t receive windfalls because they have the good fortune of a wealthy injurer and defendants shouldn’t receive penalty discounts based on the good fortune of having a low-earning victim instead of a high-earning one.

Last, the CCR’s concerns for accuracy and modesty are reflected in the procedural and substantive safeguards defendants would be entitled to under a retributive damages scheme: a right to counsel, judicial review, and a higher burden of proof (clear and con-vincing evidence), and a right to credit retributive damages amounts against subsequent criminal sanctions would protect defendants from risks of duplicative or inaccurate pun-ishment (Type I errors). Defendants should enjoy certain procedural safeguards that elevate our confidence levels above what’s necessary for compensatory damages but below what’s expected for full-blown criminal sanctions. Moreover, a concern for modesty would entail limiting and structuring retributive damages payments so they operate as an intermediate sanction, and hence, won’t jeopardize the ability of the defendant to continue his life or business in compliance with the law’s dictates.

Taken together, these notions readily separate the retributive damages scheme from prior accounts of punitive damages emphasizing revenge, “poetic justice,” or victim-vindication through civil recourse, theories propounded with different emphases by Profes-sors Zipursky, Sebok, Galanter and Luban. For instance, notwithstanding its effectiveness in explaining part of the rationale for punitive damages, Galanter and Luban’s poetic jus-tice account is unpersuasive in defending the lack of procedural safeguards for defendants, the imposition of punishment for harms occurring to non-parties to the litigation, and the extension of great deference to a jury’s ad hoc determination of punitive damages. What we really need is prosaic justice, not poetic justice.

Moreover, like Professors Zipursky and Sebok, Galanter and Luban propose little in the way of trying to ensure any degree of proportionality or even-handedness in the sanctions imposed on comparable defendants. Last, Professors Sebok and Galanter and Luban exhibit hostility to punitive damages used to pursue cost-internalization, even though there is no principled reason that extra-compensatory damages could not be struc-tured to allow a state to pursue retributive damages alongside remedies designed to pursue other purposes, including both cost-internalization and compensating victims for uncom-pensated harms to their dignity.

It goes without saying that the entire design of a retributive damages scheme needs some explanation for why it would be useful beyond mere reliance on the tort system to provide compensation for victims and the criminal justice system to inflict retribution against criminals. The next Part tries to explain what makes retributive damages, as I’ve described them in this Part, attractive as an intermediate sanction falling between compen-satory damages and criminal penalties.

Speaking of punitive damages...

Yes, I know I've lately been a bit of a one-track retributive damages "promoter" -- the word "pimp" seems more appropriate but the last time one of us used it, well, that's another story -- but I just noticed that Adam Liptak's got a new article in the Times about the "American Exception" of punitive damages. Adam writes:

Most of the rest of the world views the idea of punitive damages with alarm. As [an] Italian court explained, private lawsuits brought by injured people should have only one goal — compensation for a loss. Allowing separate awards meant to punish the defendant, foreign courts say, is a terrible idea.

Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors. It is not fair, they add, to give plaintiffs a windfall beyond what they have lost. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators.

Some common-law countries do allow punitive damages, though in limited circumstances and modest amounts. In the United States, by contrast, enormous punitive awards are relatively common, although they are often reduced or eliminated on appeal. Last month, for instance, the United States Supreme Court heard arguments in the Exxon Valdez case, where a jury’s initial award of $5 billion was later reduced to $2.5 billion. Still, such awards terrify foreign courts.

As I read Adam's piece, I couldn't help but think that if more American jurisdictions adopted my proposal of casting punitive damages as an intermediate sanction, there'd be far fewer problems in getting these judgments enforced against foreign defendants, not to mention there'd be much less risk of being found at odds with the Court's substantive and procedural due process analysis of punitive damages. At the very least, I hope the constitutional analysis at the end of my piece will prove somewhat useful to courts both here and abroad that are contemplating the problematic relationship between punitive damages and compensatory damages. (More on that in this coming Friday's post.)

Retributive Damages: Designing A Structure

In earlier posts gathered here, I laid out the Introduction and some relevant background regarding
punitive damages law and recent scholarship. In yesterday's post, I provided the basic sketch of retributive justice that informs the reconstruction of punitive damages that I propose.

In today's post, after the jump, I begin sharing some of the basic structure for retributive damages in unfootnoted and unformatted form. The two important discussions here today are what should be the subject of retributive damages and whether non-victims of wrongdoing should be empowered to bring claims for retributive damages (and if so, under what restrictions). Tomorrow's post discusses how to bring rationality and fairness to determining the amount of retributive damages.

You can read the whole article with apparatus on SSRN here. Feel free to send me your thoughts via email.

DESIGNING RETRIBUTIVE DAMAGES

It bears mention that at no point in the discussion of the CCR in the previous post was the word crime or criminal used in the course of describing the underlying values of, or limits upon, retributive justice. This omission should be suggestive, indicating that perhaps in some situations, the values of retributive justice – which include commitments to accuracy, responsibility, modesty, equality, and impartiality – can be served through a civil system’s use of punitive damages under conditions described here coupled with some intermediate level procedural safeguards such as a standard of proof that required clear and convincing evidence of the reprehensibility of the defendant’s conduct and state of mind.

This Part tries to show how the design of a retributive damages scheme can be made more sensitive to the concerns of critics and proponents of punitive damages alike. Section A discusses what kind of conduct should trigger retributive damages and who should be able to bring those actions. Section B explains how retributive theory’s concerns for reducing both Type I and Type II errors informs the structure for thinking about the amount of retributive damages in a given case and across cases. Finally, Section C suggests some principles for how the retributive damages sanction would best be allocated among the state, the plaintiff and her counsel.

A. Which Conduct Should Retributive Damages Punish? Who Should Bring Retributive Damages?

If a state adopted retributive damages, it would have to decide what conduct to punish through retributive damages and who could bring these actions. These two ques-tions seem distinct but as the discussion below suggests, the rationale for retributive dam-ages suggests a need to view these together.

1.   Should Retributive Damages Reach Beyond Criminality, and If So, How?

To assess which conduct ought to be subject to retributive damages as an interme-diate sanction, there are at least two possible conventional sources for answers with at least four possible outcomes. First, we could use the extant standards for punitive damages in tort law in a given jurisdiction. Second, we could look instead to the criminal law in that jurisdiction for guidance. Third, we could look to both tort and criminal law and incorpo-rate both spheres of law to announce the standards of wrongdoing. Fourth, we could choose to select only discrete areas of conduct from both tort and criminal law.

This Section doesn’t offer a comprehensive theory of retributive damages legisla-tion, but it will suggest a few possible guiding principles and some of the advantages and drawbacks to these various choices.

One option a legislature might take is deciding to pass a statute that simply prohib-its all conduct that demonstrates reckless or malicious disregard for the legal rights and le-gitimate interests of fellow individuals or institutions. In order to reduce the scope of conduct associated with such a statute, jurisdictions might wish to add, per Professor David Owen, that the misconduct in question constitutes “an extreme departure from lawful con-duct.” Prospective defendants would then be on notice that reckless or malicious mis-conduct would no longer simply be “priced” in the tort system according to the harms caused, but instead would be prohibited—and the sanction for violating such a rule could include the award of retributive damages. This hybrid choice would cover conduct nor-mally covered both by tort law principles as well as criminal legislation, but not all tort law and not all criminal law.

One concern with this approach is that this legislative standard – prohibiting, by threat of retributive damages, misconduct undertaken with malice or recklessness – pro-vides insufficient guidance to those concerned with affording fair notice to defendants and ensuring even-handed application by juries and judges. In defense of the current conven-tions, however, the following can be said: courts routinely apply purportedly vague stan-dards in criminal law – “good faith” in mistake of fact, “reasonableness” in sentencing, “beyond a reasonable doubt” – though not necessarily to their credit. Indeed tort law’s dominant norm is negligence, and that typically requires a jury determination of whether the defendant’s conduct was “reasonable,” which is likely more nebulous than whether someone acted maliciously or recklessly. Anxiety about such vagueness, even in the crimi-nal law context, is typically reduced through the accretion of precedent, which provides greater predictability to prospective litigants regarding what counts as reprehensible. Moreover, such anxiety might be further allayed by the recent studies of communal intui-tions of justice that show striking agreement among people about the nature and severity of wrongdoing.

The standard Professor Owen articulates is useful for further limiting the cases in which the fact-finder determines liability for retributive damages. But more granular guid-ance can be found by looking at the various factors that currently inform courts’ analyses of the amount of punitive damages. For example, in its State Farm decision, the Supreme Court told courts to consider whether the misconduct caused harm that “was physical rather than economic;” whether “the target of the conduct had financial vulnerability;” whether the “conduct evinced an indifference to or a reckless disregard of the health or safety of others;” and whether the harm resulted from “intentional malice, trickery, or de-ceit, or mere accident.” This inquiry into reprehensibility can be made even more sensi-tive. Courts have offered various other factors to assist the fact-finder: e.g., the extent of hazard posed to the plaintiff and the public; the degree of defendant’s awareness of the hazard and its excessiveness; the cost of correcting or reducing the risk; the duration of both improper marketing behavior and its cover up; the attitude and conduct of the defen-dant upon discovery of the misconduct; and the defendant’s reasons for failing to act.

The legislature may also wish to require consideration of other factors often deemed relevant to filing charges against a corporate defendant: for example, “the perva-siveness of wrongdoing within the corporation, including the complicity in, or condonation of, the wrongdoing by corporate management”; the defendant’s: history of similar conduct, including prior criminal, civil, and regulatory enforcement actions against it; the corpora-tion’s timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents; the existence and adequacy of the corporation’s pre-existing compliance program; the corporation’s remedial actions, including any efforts to imple-ment an effective corporate compliance program or to improve an existing one, to replace responsible management, to discipline or terminate wrongdoers, to pay restitution, and to cooperate with the relevant government agencies.

A simpler way to reduce vagueness is by restricting retributive damages liability to situations where the harm was only physical as opposed to economic. But such a restriction would, from a retributivist perspective, undermine the goal of ensuring that more offenders receive at least some coercive condemnatory deprivation. The better strategy, then, is to deploy all the preceding factors within the statute as considerations for determining the amount of retributive damages to award in a given case (as I explain shortly). Of course, as these various considerations demonstrate, the culpable misconduct that triggers retributive damages is, unlike a cost-internalization approach, not simply a matter of what harm was caused by the defendant. Indeed, on a retributivist rationale, the award of punitive damages has comparatively little to do with the actual amount of harm caused. What matters to vir-tually all retributivists is the culpable conduct of the offender, and that will entail exami-nation of harm alongside a defendant’s imposition of unreasonable risk of harm and any relevant defenses.

A legislature that wanted to reach conduct that wasn’t already criminalized could do so using the general statute described in this section. Nonetheless, in service to princi-ples of legality, legislatures would do well to be as specific as possible in the context of prohibiting that misconduct which should trigger retributive damages.

2.   Should Retributive Damages Reach “Harmless” Misconduct? If So, Who Sues?

A more interesting and complex issue to consider is whether all conduct in a juris-diction already prohibited by criminal law should be subject to retributive damages actions. I can imagine why some legislatures might wish to exempt various offenses such that their violations would not be eligible for retributive damages. However, it’s not entirely clear that such exemptions would be justified on retributivist grounds. Let me explain.

Two areas seem particularly pertinent here: first, “harmless crimes” where certain conduct irrespective of harmful result is prohibited, such as driving under the influence of alcohol; and second, inchoate crimes: e.g., solicitation, attempt, and conspiracy. In those two areas of criminal law, criminal penalties are available to punish misconduct even where harms to others did not actually materialize. These two kinds of conduct are some-what confounding in the context of retributive damages because in the domain of tort law, a finding of harm to a victim is conventionally required. But with both these areas of criminal law, there is no victim available to bring a suit for retributive damages even though we have conduct deemed worthy of substantial condemnation.

The relevant question is whether standing to sue for retributive damages should be available broadly. One might restrict the pool of plaintiffs here only to those who were likely victims of the defendant’s actions. Another strategy, which I believe is more con-sistent with the retributivist goal of reducing Type II errors, is for legislatures to empower private attorneys general (PAGs) who discover proscribed misconduct to bring suit for re-tributive damages. This would look similar to the qui-tam structure in which the federal government encourages whistle-blowers to report fraud on the government.

Private attorneys general are entrenched and pervasively influential actors across spheres of law ranging from consumer protection to environmental enforcement. Con-ceived here as those who bring claims without a particular interest as an aggrieved party to the defendant’s misconduct, PAGs would supplement the government’s enforcement work for a range of misconduct that the legislature specifically denominates. While this may seem odd, historically, private parties, including non-victims, were also empowered to prosecute crime for the government. In fact, those PAGs who initiated actions often gar-nered the entirety of the criminal fine that may have been awarded, even if they weren’t victims. To be clear, I’m not suggesting we use PAGs and retributive damages to serve as a complete substitute for the public enforcement of criminal law. As I explain in Part IV.D, there are good reasons for having a professionalized prosecutorial force at the gov-ernment’s employ. But having PAGs empowered to bring an intermediate sanction against defendants is a cost-effective and politically independent mechanism to bring justice to those who perpetrate legislatively proscribed actions.

Two problems with PAG suits exist: first is the fear that they will be brought vexa-tiously against the defendant, increasing the likelihood of Type I errors. Second is the con-cern that having PAGs (rather than public prosecutors) enforce certain laws might jeopard-ize our commitments to other values (such as free speech). But these threats have responses: the rules of legal ethics and civil procedure instruct and forbid lawyers from bringing frivolous or bad faith litigation claims; and the economics of litigation encourage plaintiffs’ lawyers only to take on suits that have some good prospect of recovery. Moreover, under the retributive damages scheme, heightened procedural burdens would be imposed — such as clear and convincing evidence — that would reduce the incidence of false positives. Additionally, to the extent that other values are jeopardized by PAG en-forcement, that decision is one a legislature can make by delineating which rights are sub-ject to PAG enforcement and which ones are not.

A preferable measure to reduce Type I errors, while still remaining true to the re-tributive energy that seeks the reduction of Type II errors (the wrongdoers who escape pun-ishment), would be to adopt a segmented litigation strategy. That is, courts would allow plaintiffs who were actually harmed by the defendant’s conduct to pursue retributive dam-ages in the traditional tort structure. But for those cases involving a PAG, where there was no actual harm, the PAG would be required to notify a governmental agency, perhaps a section of the state attorney general’s office that deals with tort litigation, of the defen-dant’s misconduct. The PAG would lodge the complaint and its evidence against the de-fendant with the government office, and the government would decide whether to bring a case. If the government brought and won a retributive damages action, a portion would go to the PAG as a reward for bringing this misconduct to public attention, much like many jurisdictions reward those who call in crime-stopping tips.

If the government chose not to sue by a certain time, it would have to set out its reasons in a statement. This would facilitate both democratic accountability and judicial or executive review of the declination. The government’s declination would permit the claim to go back to the PAG, who could decide to sue for retributive damages if she se-cured counsel.

This public-private scheme would apply by the same logic to a more controversial realm: those cases where the defendant caused harm to a victim but the victim chose not to seek retributive damages. It is more controversial because allowing third parties to seek re-tributive damages here supervenes upon the choice of a victim to seek or not seek redress against the wrongdoer. From some perspectives, punitive damages serve to vindicate the wrongs against the actual interests of actual victims. By such lights, the PAG scheme would be problematic where victims choose to extend mercy to their wrongdoer by not seeking compensation or retribution. Indeed, some might think the tort system’s essential structure is to empower but not require victims to seek recourse against their wrongdo-ers. Thus to allow for a PAG to seek retribution against the wrongdoer for another per-son’s suffering would be seen as disempowering to the victim, especially if the victim had to testify against his or her will.

From the CCR’s perspective, however, a victim’s declination not only risks leav-ing the state unaware of the defendant’s misconduct (when the defendant could be humbled through coercion otherwise) but it leaves the defendant a risk to other people’s rights, in-cluding, possibly the victim’s. Think here of a victim of a teacher or clergyman’s sexual abuse; if there was independent evidence of the abuse -- say a PAG’s testimony and cam-era-phone pictures -- we might still want a PAG to share awareness of this to punish and prevent this abuse.

Together, these admittedly disparate areas of misconduct—inchoate crimes, con-duct crimes with no resulting harm, and misconduct with resulting harm to victims who don’t wish to seek recourse for the wrong—may all be seen, at least in some contexts, as situations where moral luck operates. The store owner whose fraudulent scheme fails be-cause an honest employee tips off the customer; the drunk who luckily drove home without injuring anyone; the molested altar boy who forgives his parish priest—these each involve situations where a defendant’s culpable misconduct is worthy of sanction, and nonetheless, under a traditional torts scheme, the wrongdoer might escape being held legally responsi-ble. To be sure, these cases could be left for the criminal justice system exclusively. But that would likely leave this category of cases under-enforced in light of the government’s scarce investigative resources and scarce prosecutorial resources (discussed next in Part IV). Moreover, since many retributive theorists take the position that culpable wrongdoing is what generally ought to trigger sanction, not the instantiation of actual harm, it makes sense to have a retributive damages scheme that would endeavor to be indifferent to these eruptions of moral luck.

Punishing these spheres of misconduct through retributive damages might be con-troversial because it involves a paradigm shift for the tort system. States like

that have tried uncoupling victimhood from standing to sue as a civil plaintiff have encountered resistance. Thus a jurisdiction might find more acceptability by using the hybrid regime mentioned earlier to empower PAGs to bring retributive damages actions following a gov-ernment declination; the government may also decide to restrict these cases to alleged mis-conduct involving or risking physical harm or for financial misconduct involving losses greater than (say) $100,000.

Subsequent criminal liability of course only attaches if the underlying conduct is subject to criminal sanction. Thus, depending on the jurisdiction, a defendant facing re-tributive damages for defamation might not trigger any subsequent criminal liability. But a defendant sanctioned for fraud in tort might subsequently be prosecuted under the criminal law. As mentioned earlier, any retributive damages penalties a defendant pays would be credited against subsequent criminal penalties assuming the prosecution was for the same misconduct the defendant was accused of in the retributive damages proceeding. Con-versely, PAGs would not be entitled to bring actions for retributive damages after the gov-ernment has already signaled its intent to criminally prosecute the defendant for the same misconduct. (That would only encourage free-riding on the government’s prosecutorial ef-forts.)

Notice that this approach to figuring out what can be punished through retributive damages doesn’t posit that there is an intermediate category of wrongdoing between so-called private and so-called public wrongs. No intermediate category of wrongdoing (in the sense that it is less severe than criminal wrongs but more severe than private torts) is nec-essary to justify having an intermediate sanction of retributive damages. But it’s important to note that this account also doesn’t view retributive damages as justified only because it serves as a means for enforcing criminal liability. Rather, the wrongs, for purposes of re-tributive damages, are delineated by the legislation authorizing retributive damages, and the scope of that conduct is up to the legislature.

As one can see, the question regarding the proper scope of retributive damages is complicated. My own sense is that retributive damages statutes should come close to track-ing much of what we already criminalize—though I also believe we have too many crimes on the books with penalties that are too harsh. Ideally, we’d have a narrower criminal law and a retributive damages regime that would match much of it, with specific assurances that any conduct punishable through retributive damages would have a mens rea require-ment of recklessness or higher along with appropriate procedural safeguards to reduce Type I errors of false positives. But I don’t view an all-encompassing retributive damages scheme to be required. As with much of criminal law, it should be the product of careful legislative deliberation and subject to heightened scrutiny.

In sum, we can see two approaches here. A familiar and more restrictive approach endorses retributive damages actions only against certain misconduct that actually left vic-tims in its wake, victims who are permitted but not required to bring conventional tort suits including retributive damages A major disadvantage is that such an approach leaves the criminal justice system alone to deal with the whole array of wrongdoing that warrants ret-ribution.

In a world where detecting complex wrongdoing occurring in private is difficult, as I describe in the next Part, and people may not even know they have been victimized, we might want a broader approach that increases the incentives for reporting misconduct to the system. The broader approach would have retributive damages legislation track not only familiar bases for punitive damages in tort law but also a society’s criminal laws.

The broad strategy follows a basic logic. If the underlying misconduct is suffi-ciently noxious to allow criminal sanctions, then the intermediate sanction of retributive damages is also permissible if a defendant’s interests in a fair and impartial adjudication are protected. The broader approach would have the advantage of achieving more instances of retributive justice; and because of the prevention likely instigated by the PAG scheme, it would entail fewer encroachments upon the rights of persons to their bodies and property. The social costs of administration and enforcement would probably increase initially but over time we might see that fewer wrongdoers require punishment because there’s less temptation to commit wrongdoing if they know that any observer (and not just police or prosecutors) can initiate claims. A wider scope of liability, however, would leave more people worried about erroneous accusations and punishments, and could affect people’s preferences regarding how much time they spend in observable spaces.

California

Retributive Damages: Some Recent Normative Scholarship

Earlier posts on the topic of Retributive Damages can be found here. The whole article can be found here.

Recent Normative Scholarship

 

Unsurprisingly, the complexity, significance, and rapidly evolving nature of punitive damages law has attracted the attention of many scholars. Some legal economists, like Professors Polinsky and Shavell, think extra-compensatory damages should focus on advancing the goal of cost-internalization. As I explained earlier, under this economic framework, a defendant’s culpability or state of mind is immaterial to her obligation to pay for the harms that she causes.[1] Instead, what matters is whether there was any likelihood the defendant would evade paying compensation for the harms she caused. If there is such a possibility, then the amount of punitive damages should be calibrated to the likelihood of her evading compensation.[2] This particular economic approach, however, is clearly at odds with the existing doctrine, which, as we saw in the previous Section, generally requires there to be some finding of malice or recklessness before punitive damages can be awarded.

As a matter of policy prescription, the economic approach’s inconsistency with extant doctrine is obviously not a knock against it. Generally speaking, individuals and entities should have to pay for the mess they make; if they can exploit enforcement gaps by private and public parties, there will be an incentive to take insufficient care, which will also run the risk of under-deterrence.[3] But the cost-internalization approach, which is conceptually unconcerned with mens rea or culpability, is better thought of as pursuing “augmented” damages, rather than “punitive” damages.[4] This allows us to contrast augmented damages from other extra-compensatory damages.

Other scholars have provided an alternative to the cost-internalization rationale for punitive damages by instead discussing punitive damages awards in terms of how they vindicate a victim’s dignity and autonomy interests, which have been injured by the defendant’s misconduct.[5] In some common law jurisdictions, these extra-compensatory damages are more precisely labeled as “aggravated” damages—and they would go to plaintiffs for the injury to their dignity.[6] Some supporters of these non-economic accounts have defended large parts of extant common law punitive damages law on the grounds that these practices serve as vehicles by which victims or their allies can take measures to persuade juries to avenge the victim’s interests through ad hoc, and therefore unpredictable, awards of money damages to victims.[7] Indeed, for some social justice tort theorists, common law jury-driven punitive damages practice serves as a way for an ordinary person to fight malfeasant entities and their lobbyists seeking business-friendly “tort reform.”[8] Some scholars, such as Galanter and Luban, drawing on the work of Jean Hampton’s victim-vindication justification for punishment, even view themselves as committed to the goals or values of retributive justice.

But as shown in the insightful interpretive accounts of tort law and punitive damages by Benjamin Zipursky and Anthony Sebok,[9] the tort system conventionally empowers victims to either pursue punitive damages or forbear from pursuing such damages. That’s important because it shows that no one forces punitive damages on the victim in the common law approach; rather leaving the decision to seek recourse to the victim is said to vindicate the victim’s autonomy. The same may be said for allowing victims to have almost unfettered control over settlements with the defendants.

These two practices reveal some space between victim-vindication accounts and the interests underlying a retributivist account. Retributivists, as I will explain shortly, give more weight to the reduction of both Type I false positive errors — in which people are mistakenly punished (or excessively punished relative to comparable offenders) — and Type II false negative errors — in which wrongdoers escape their punishment altogether (or receive too lenient a punishment compared to other similar offenders in the jurisdiction). Importantly, the accounts defending punitive damages as vehicles for victim-vindication or jury expressions of outrage say little about the need for building a system that tries to reduce both Type I and II errors. Indeed, to the extent these accounts are interested in invoking retributive justice values to bolster their accounts, this silence is a real weakness.[10] After all, failing to defend procedural safeguards or to create any real guidelines for cabining jury discretion and judicial review is a recipe for Type I error creation. Moreover, giving only victims the right to pursue retributive damages or giving all victim plaintiffs the unfettered authority to settle a case involving allegations of reckless or malicious misconduct writes a blank check for Type II errors.

If we want a retributive scheme of punitive damages, it has to reflect some concern for reducing both types of errors. Of course, a pluralistic scheme of extra-compensatory damages could be designed to provide space for the pursuit of both cost-internalization and victim vindication. These two goals have received generous and shrewd coverage in the scholarly literature,[11] and thus, in this paper, I don’t spend much time analyzing them here. But what’s really missing is a better understanding of what a public retributive justice theory entails for punitive damages. And in the Parts that follow in this Article, I shall focus on the achievement of retributive justice through the context of “retributive damages.” For that to happen, we must first have an account of retributive justice. To that task I now turn.

 

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[1] See supra note 4.

[2]

Id.

[3] See Thomas C. Galligan, Jr., The Risks of and Reactions to Underdeterrence in Torts, 70 Mo. L. Rev. 691 (2005).

[4]See Thomas C. Galligan, Jr., Augmented Awards: The Efficient Evolution of Punitive Damages, 51 La. L. Rev. 3 (1990)

[5] See, e.g., Sebok, supra note 12; Zipursky, supra note 12.

[6] See Bruce Chapman & Michael Trebilcock, Punitive Damages: Divergence In Search of a Rationale, 40 Ala. L. Rev. 741 (1989).

[7] At times, the work of Marc Galanter and David Luban, as well as David Hoffman and Kaimipono Wenger, speak in this register. See sources supra note 12 and 14. For example, Galanter and Luban endorse imposing punitive damages in a single case against a defendant for all the harm the defendant’s misconduct caused in similar situations even if the defendant may have had viable defenses against those other parties. See, e.g., Galanter & Luban, supra note 12, at 1436-38 (providing examples of “expressive defeat” of defendant through punitive damages). They also think judges should extend “great deference” to juries’ determinations because of their special competence in sending “the community’s message through the medium of damages.”

Id.

The view I take circumscribes jury decision-making considerably more.

[8] E.g., Michael L. Rustad, The Closing of Punitive Damages’ Iron Cage, 38 Loy. LA L. Rev. 1297, 1301 (2005) (tort reform of punitive damages is “special legislation to help corporate

America

”); see generally Koenig & Rustad, supra note 16; Richard L. Abel, Questioning the Counter-Majoritarian Thesis: The Case of Torts, 49 DePaul L. Rev. 533 (1999).

[9] See sources supra note 12.

[10] To its credit, Professor Sebok’s state-sanctioned revenge account is consistent with a desire to reduce “piling on” (or Type I over-punishment) errors that occur through introducing evidence apart from that which injured the plaintiff. See Sebok, supra note 12. But he doesn’t address the state’s interest in reducing Type II errors of either sort, or the procedural safeguards necessary to prevent Type I errors of the mistaken punishment sort.

[11] See sources cited supra note 4 (scholars urging punitive damages to pursue cost internalization) and note 12 (scholars urging punitive damages to allow for victim-vindication).

Retributive Damages: A quick overview of American Punitive Damages Law

Yesterday I posted the introduction to Retributive Damages. Today I provide some background on the law of American punitive damages and tomorrow I do a quick survey of recent normative scholarship on punitive damages. (You can find the whole article here.)

  Punitive damages have a long history.[1] According to the conventional understanding, early Anglo-American courts awarded “exemplary” damages for a range of purposes, in some cases as compensation to a plaintiff for suffering “intangible wrongs” such as insults that caused dignitary harms and in other cases as punishment of “the defendant for his misconduct.”[2] As the scope of compensatory damages in recent years expanded to include “mental anguish, wounded feelings, indignity and embarrassment,” however, the need to use punitive damages to compensate such harms may have diminished.[3] Indeed, many of the “intangible harms” initially uncompensated are now covered.[4]

Consequently, the Supreme Court has cast its doubts on the compensatory rationale of punitive damages, explaining that today punitive damages should be understood as “quasi-criminal” “private fines” designed to punish and deter the misconduct at issue.[5] Interestingly, although courts frequently view punitive damages as serving both and primarily retribution and deterrence,[6] analysis of these purposes and their implications is often scant. As such, courts rarely instruct juries to consider decoupling these functions by determining the amount of money necessary to serve as the punishment of the defendant and the amount necessary to achieve deterrence.[7] Indeed, the courts rarely bother to distinguish between optimal deterrence (aiming at cost-internalization) and complete deterrence (aiming at stopping the misconduct’s commission in the future).

Today, notwithstanding the public nature of the retributive and deterrent values the Court associates with extra-compensatory damages, only a small number of states have adopted split-recovery schemes through which the state shares in the award of punitive damages.[8] Consequently, in most states, if extra-compensatory damages are awarded, the plaintiff (and her lawyers) will receive most, if not all, of the amount awarded.[9]

Despite the variations in who recovers punitive damages, certain practices are well-entrenched. For example, in every jurisdiction where punitive damages are allowed, the fact-finder must make a predicate finding about the defendant’s culpable state of mind, i.e., did the defendant’s action evince something like “wanton, willful, malicious, or reckless conduct that shows an indifference to the rights of others?”[10] Moreover, most American jurisdictions have in recent decades required that punitive damages be awarded only if the plaintiff has proven the defendant’s culpable state of mind with “clear and convincing evidence,” rather than the traditional, “preponderance of the evidence” standard.[11]

Additionally, the Supreme Court has, in the last fifteen years, begun to establish a constitutional framework for regulating punitive damages. These rules are designed to ameliorate “the basic unfairness of depriving citizens of life, liberty, or property, through the application, not of law and legal processes, but of arbitrary coercion.”[12] The Court’s requirements can be summed up in six rules.

First, when courts review the reasonableness of punitive damages awards, the most important factor they must consider is the degree of reprehensibility of the defendant’s misconduct.[13] Second, reviewing courts must also consider whether the “disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award” is constitutionally excessive.[14] More controversially, in State Farm, the Court established a presumption that “in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”[15]

Third, reviewing courts should consider “the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.”[16] Fourth, reviewing courts, under the Supreme Court’s new Philip Morris decision, must ensure that the jury is instructed not to punish defendants an amount that figures in the harms to nonparties to the litigation.[17] One might see this as related, though not essential, to the Court’s stated interest in ensuring that one state not try to punish defendants for conduct lawfully performed in another state.[18] Fifth, judicial review of a jury’s award of punitive damages must be available at both the trial and appellate levels.[19] Finally, appellate review of punitive damages must adopt a “de novo” standard of review of the jury’s award, at least when the action is a federal case.[20]

Importantly, although the Court developed these rules to improve fair notice and proportionality to defendants facing these sanctions,[21] the Court has not extended to defendants the protections normally applicable in the criminal law context. Indeed, defendants in punitive damages actions have no right to bifurcated proceedings between liability and punitive damages, no right against vicarious liability,[22] no double jeopardy rights,[23] no right to counsel, no right to standards of proof requiring proof beyond a reasonable doubt, and no right to avoid testifying on the grounds that such testimony might lead to punitive damages liability. Moreover, the Court has not stepped in to prohibit vicarious liability for punitive damages,[24] or multiple awards of punitive damages for the same underlying tortious conduct, such as in a mass torts case.[25] Nor has the Court insisted that the trial court specify its reasons for upholding or remitting the amount of punitive damages.[26]