Punishment is not compensation

gavellOne of the most significant Supreme Court cases of the recent past was settled by a substantial majority on the court including the two swing votes then in place (Kennedy, who wrote the decision, and O’Connor), joined by one of the conservatives (Rehnquist and three of the liberals (Stevens, Souter and Breyer). Only two of those judges are still on the court, whereas, by coincidence, all three dissenters (Scalia and Thomas from the right and Ginsburg from the left) are all still in place. Still, in the view of your columnist, all nine justices got it wrong, and five of them still provide a blocking majority which will no doubt prevent the Common Sense view from prevailing for a little while yet. 

The case was State Farm v Campbell and goes to the heart of the debate about tort reform. Again, your columnist is an iconoclast, disagreeing with both Republicans and Democrats. 

The trend in tort cases is for courts to award, alongside compensatory damages, punitive damages. Liberals on the court (excepting Ginsburg) have taken the view that some limits must be placed on punitive damages: that they may not be more than ten times the level of compensatory damages and that four times the level of compensatory damages is extreme. Conservative justices such as Scalia and Thomas, sometimes joined in the past by the late Chief Justice Rehnquist, argued that no such limits exist in the Constitution. It certainly seems that such limits are arbitrary, and it is difficult to find any text supporting them. After all, the purpose of punitive damages is to punish, so they should be related to the level of wrongdoing whereas compensation is necessarily limited to the level of damage caused, which may be wholly unrelated to how culpable the defendant was.

Democrats – who are funded by trial lawyers at the tort bar – generally oppose efforts to restrict damages, putting them at odds with most liberal justices. Republicans – who are often funded by insurance interests – prefer to limit total damages.

Compensatory damages should not be limited. The defining factor here is how much damage has been caused. But punitive damages should be neither limited to some multiple of compensatory damages nor left unlimited: they should be banned.

It is not for civil courts to punish people. Civil courts exist for redress of grievance. They have different rules of evidence and a different standard of proof from criminal courts, neither of which is appropriate to punishment.

If you and I are in dispute as to the ownership of a piece of property the court awards it to one of us on the balance of evidence. They may be only 51% sure that it is yours, but since there is only a 49% chance it is mine, they give it to you. That is because the worst that can happen to either of us is losing something to which, it seems, we were not entitled in the first place.

But in matters of punishment you are denied something which everyone agrees is yours by right: it may be your liberty or your property. That is something which should only be done on a finding beyond reasonable doubt. Congress could legislate for this at the federal level, but it would be preferable for the Supreme Court to rule that such punishment breaches the Fourth and Fifth Amendments.

qlQuentin Langley is a Senior Lecturer in Marketing at the University of Bedfordshire Business School as well as a freelance columnist published in the UK and all parts of the US. He blogs on social media and crisis communications at brandjacknews.com

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