Why punitive damages and criminal sentences are reviewed differently and what it means to your appeal.

• Author: Colan, Jonathan D.

It is always a curious thing when the courts approach two apparently similar questions in dissimilar ways. Recognizing such discrepancies can help practitioners develop better arguments by unpacking the underlying premises behind such curiosities. For example, although both civil punitive damage awards and criminal sentences are intended to address past wrongs and deter future wrongdoing, appellate courts review criminal sentences and civil punitive damage awards differently, granting greater deference to a trial court's decision regarding the proper criminal sentence to impose than to the very same trial court's decision regarding the proper amount of punitive damages to permit after a civil jury verdict. This article will show how the similar rationales underlying the two different standards of appellate review can help appellate practitioners strengthen their arguments in favor of more or less exacting appellate review, as the case may require.

When the Supreme Court strengthened the constitutional rules in criminal sentencing, beginning in United States v. Booker, 543 U.S. 220 (2005), (1) many wondered whether stricter constitutional sentencing requirements would result in stricter appellate review of sentences. (2) Though the Supreme Court thought it made the standard for reviewing criminal sentences "pellucidly clear" in Booker, the Court was recently forced to clarify lingering confusion and expressly hold that the post-Booker standard of review for federal sentencing decisions is abuse of discretion. (3) Meanwhile, as the Supreme Court was expanding the discretionary power of trial judges over criminal sentencing, a similar revolution in civil punitive damages doctrine was lessening a trial judge's discretion regarding civil punitive damage awards and establishing that the standard of review for such awards is de novo. (4) True, "[i]f no constitutional issue is raised," federal appellate review of civil punitive damage awards is the same abuse-of-discretion standard applied to the substantive review of federal criminal sentences, (5) but the Supreme Court's increasing willingness to enforce "procedural and substantive constitutional limitations on these awards" has created a regular constitutional component to appellate review of punitive damage awards, triggering the more exacting de novo standard of review. (6)

The Supreme Court's recent decision in Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), highlights the distinction between usual federal de novo appellate review of civil punitive damage claims under applicable state tort laws and the more exacting abuseofdiscretion standard applied in the narrow class of federal maritime cases. In fact, Exxon Shipping Co. illustrates the Supreme Court's use of similar rationales to justify both standards. (7)

I limit this discussion to federal appellate review, because the question is starkly presented. Unlike Florida state courts, the same trial judges preside over both civil and criminal cases. Moreover, the federal [s]entencing [g]uidelines and controlling Supreme Court authorities provide a uniform lens through which to consider the issue. Even in civil cases where the federal courts are applying state tort law, it is federal appellate law that provides the standard of review for enforcing constitutional limits.

In recent decisions, the Supreme Court has been expanding the power of appellate courts to vacate trial court punitive damage decisions, while at the same time it has been limiting the power of appellate courts to vacate criminal sentencing decisions. In each context, the Supreme Court has identified "reasonableness" as the guidepost for court review.

Yet, in the criminal realm, one rationale provided for requiring the abuse-of-discretion standard is that "district courts have an institutional advantage over appellate courts" because the trial court "must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing." (8) Meanwhile, in the civil context, punitive damage review must be de novo because "[e]xacting appellate review ensures that an award of punitive damages is based upon an application of law, rather than a decisionmaker's caprice."9 Curiously, the language and rationales used by the Court in these two realms are nearly identical but have led the Court to justify two different standards of appellate review.

Exploring this conundrum requires an examination of the steps involved in each type of decision, recognizing that an appellate court is not answering a question for itself; rather, it is reviewing an answer already determined by an initial decisionmaker who was guided by distinct standards different from the standards applied by the appellate court. The level of deference an appellate court gives to the trial court is usually related to the types of considerations that factored into the trial court's initial decision. (10) Certainly, there are great differences between the civil and criminal realms, but the Supreme Court has recognized the commonalities between the two realms in fashioning standards of review...