The Constitution and punishment.

• Author: Chemerinsky, Erwin
• Position: How Supreme Court dealt with constitutional issues concerning punishment

INTRODUCTION I. SUBSTANTIVE LIMITS ON PUNISHMENT A. The Court's Inconsistency 1. Death penalty 2. Fines and forfeitures 3. Punitive damages B. Is the Inconsistency Justified? 1. History 2. Social policy II. PROCEDURAL REQUIREMENTS FOR PUNISHMENT A. The Court's Inconsistency 1. Criminal cases 2. Civil cases B. Is the Inconsistency Justified? III. TOWARDS A UNIFIED THEORY OF THE CONSTITUTION AND PUNISHMENT A. Substantive Limits on Punishment 1. Reprehensibility 2. Punishments in other states 3. Other penalties within the state B. Procedural Consistency CONCLUSION INTRODUCTION

The last year has been very frustrating for me in my role as a lawyer. In March 2003, the Supreme Court, in Lockyer v. Andrade, ruled that federal courts could not give habeas corpus relief to Leandro Andrade, who had been sentenced to life in prison with no possibility of parole for 50 years for stealing $153 worth of videotapes from K-Mart stores. (1) I represented Andrade in both the Ninth Circuit, where he prevailed, (2) and in the Supreme Court, which ruled against him on the ground that his sentence was not "contrary to," or involved an "unreasonable application" of, "clearly established Federal law." (3) In the companion case, Ewing v. California, (4) the Supreme Court held that it was not cruel and unusual punishment in violation of the Eighth Amendment to impose a life sentence, with no possibility of parole for 25 years, for stealing three golf clubs worth $1200 pursuant to California's "Three Strikes" Law. Together, the decisions in Andrade and Ewing will make it very difficult, if not impossible, for courts to find any prison sentence to be grossly disproportionate and thus cruel and unusual punishment.

In the last year, I was also very involved in a case, Romo v. Ford Motor Co., (5) in which the California Court of Appeal found a large punitive damages award unconstitutional based on the Supreme Court's decision in State Farm Mutual Automobile Insurance Co. v. Campbell. (6) In Romo, a jury awarded $290 million in punitive damages against Ford Motor Co. after the rollover of a 1978 Ford Bronco killed three people and seriously injured three others. The evidence at trial showed that Ford had rushed the car to market despite its knowledge that the car had a propensity to roll over, lacked a rollover bar to protect occupants, and had a flimsy roof that was sure to collapse in a rollover. In June 2002, the California Court of Appeal upheld the punitive damages award as constitutional, calling Ford's conduct "manslaughter." (7)

After the California Supreme Court denied review, Ford sought certiorari in the United States Supreme Court. As Counsel of Record for Romo in the Supreme Court, I filed our opposition to certiorari on Friday, April 4, 2003. On Monday, April 7, the Court issued its decision in State Farm. There the Court held that due process was violated by a $145 million punitive damages award against State Farm Mutual Automobile Insurance Co. for bad faith in refusing to settle a suit against a policyholder. The Court, in a 6-3 decision, ruled that the punitive damages award was "grossly excessive" because the conduct was not sufficiently reprehensible to justify such an award, the state court had impermissibly awarded punitive damages for conduct that occurred in other states, and the ratio between punitive and compensatory damages was impermissibly large. (8)

Based on its decision in State Farm, the Supreme Court granted certiorari in Romo, vacated the lower court decision, and remanded the case for further consideration. (9) After briefing and arguments, the California Court of Appeal found in November 2003 that, based on State Farm, the award of $290 million in punitive damages was grossly excessive and violated due process. The court ordered that plaintiffs either accept a reduction of the punitive damages award to $23.5 million or face a new trial on the issue of punitive damages. (10)

There is a cruel irony when these cases are compared. The principle that emerges is that too many years in prison for shoplifting does not violate the Constitution but too much money in punitive damages against a business for "manslaughter" is unconstitutional.

Focusing on these cases more carefully raises difficult and profoundly important questions: Is the Supreme Court consistent in dealing with the various kinds of punishment that governments can impose? Should there be such consistency? If so, what consistent principles should guide courts in evaluating the constitutionality of punishments? (11)

This Article focuses on these questions. There are four major types of punishments that courts can impose: death sentences, imprisonment, fines, and punitive damages. (12) This Article focuses on how the Supreme Court has treated and should treat constitutional issues concerning these four types. My thesis is that the Court has been markedly inconsistent both in terms of substantive limits and procedural requirements for these types of penalties. Further, I argue that this inconsistency is unjustified and that there should be a unified, coherent theory of constitutional limits on punishment.

The Article is divided into three parts. Part I explores substantive limits on punishment and Part II discusses procedural requirements in punishment. Each section begins by discussing the Court's inconsistency and then considers whether it is justified. After demonstrating that the Court's approaches to punishment have been irreconcilable, Part III outlines the contours of a unified constitutional theory of punishment. This would emphasize proportionality review for all penalties and also a much greater role for the jury in criminal sentencing.

By way of disclaimer, this Article does not attempt to provide an overall theory of punishment under the law. Obviously, that is far beyond the scope of any article. My focus is much more modest; I want to consider how the Supreme Court has dealt with constitutional issues concerning punishment. My project is descriptive in hoping to illuminate the inconsistencies, normative in desiring to argue against what the Court has done, and prescriptive in offering an alternative vision of the Constitution and punishment.

1. SUBSTANTIVE LIMITS ON PUNISHMENT

   1. The Court's Inconsistency

      The Supreme Court has consistently held, at least as an abstract proposition, that the Constitution requires proportionality in the imposition of punishment. The Court first articulated this in Weems v. United States, where it held that the Eighth Amendment prohibits "greatly disproportioned" sentences and stated "that it is a precept of justice that punishment for crime should be graduated and proportioned to offense." (13) In Weems, the Court declared unconstitutional a sentence of hard labor in chains as violating the Eighth Amendment. The Court has not, however, been consistent in its willingness to apply proportionality analysis.

      1. Death penalty.

         In death penalty cases, the Court has insisted on proportionality. For example, in Coker v. Georgia, the Court held that the Eighth Amendment limits the crimes for which a death sentence can be imposed. (14) The Court ruled that a death sentence for rape is impermissible as violating the proportionality requirement. (15) Similarly, the Court has ruled that it violates the Eighth Amendment to impose the death penalty for felony murder when the defendant was not a major participant in the killing. (16)

         In fact, more generally, the Court's approach to the death penalty, requiring consideration of aggravating and mitigating circumstances, is about ensuring that the punishment of death fits the crime and the defendant. (17) After Furman v. Georgia invalidated the death penalty, (18) the Supreme Court allowed it to be reinstituted but held that there cannot be a mandatory death penalty for any crime and ruled that juries must consider aggravating and mitigating circumstances in deciding whether a death sentence is appropriate. In Woodson v. North Carolina, the Court declared unconstitutional a North Carolina law that mandated a death sentence for first degree murder. (19) In Lockett v. Ohio, the Court ruled that juries must "not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (20)

         The result of these decisions is that the Supreme Court has required "the particularized consideration" of the offense and the offender before a death sentence can be imposed. This is about ensuring that the punishment is appropriate for the defendant and his or her crime; this, of course, is the essence of proportionality analysis.

         Most recently, the Court reaffirmed the application of proportionality analysis to death penalty cases. In Atkins v. Virginia, the Court held that the death penalty for the mentally retarded is cruel and unusual punishment in violation of the Eighth Amendment and declared, "The Eighth Amendment succinctly prohibits 'excessive' sanctions." (21) Atkins follows earlier Supreme Court rulings that had invalidated the death penalty for the insane (22) and for defendants who were fifteen at the time of their crime. (23) The Supreme Court's decision in this case was based on the conclusion that persons with mental disabilities are not blameworthy because of their reduced mental capacities. The Court thus concluded that a death sentence was disproportionate to the criminal culpability.

      2. Fines and forfeitures.

         The Supreme Court considered the application of proportionality to fines and forfeitures in United States v. Bajakajian. (24) An individual leaving the United States took his life savings of $357,000 with him in cash. This violated the federal law which requires declaring to federal authorities the removal from the country of more than $10,000 in cash. (25) The government sought to have the defendant forfeit the...