The Constitution and Punishment
Chemerinsky, Erwin, Stanford Law Review
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
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. …