Civil and Criminal Recidivists: Extraterritoriality in Tort and Crime

Abstract:     
Historically, punitive damage awards and criminal sentences have shared the common justifications of punishment and deterrence, with the culpability of tortfeasors and criminals alike being enhanced as a result of repeat misconduct. The Supreme Court's 2003 decision in State Farm v. Campbell suggests, however, that the parallels now in effect stop at the state line. The extraterritorial misconduct of tortfeasors is permitted to play a very limited role, if any, in the assessment of punitive damage awards. Meanwhile, such misconduct continues to be used by courts to significantly enhance the sentences of criminal defendants, an asymmetry accentuated by California v. Ewing, also decided in 2003, where the Court upheld the nation's most draconian criminal recidivist law, and attached unprecedented importance to criminal history in Eighth Amendment proportionality analysis.

This paper explores the inconsistent treatment given extraterritorial misconduct in sanctioning tort and crime, an inconsistency that underscores the continued existence of a distinct constitutional divide between punitive awards and criminal sentences, which heretofore has shown signs of weakening. The paper also discusses a range of provocative differences in how the law addresses wrongdoing by civil and criminal recidivists. These differences include concerns that consideration of tortfeasors' extraterritorial misconduct would result in unfair multiple punishments, plainly absent from modern double jeopardy jurisprudence in the criminal law realm, and that tortfeasors will lack notice if they were to be held accountable for their extraterritorial misconduct, despite that criminal offenders are expected to anticipate such extraterritorial accountability and the loss in physical liberty it occasions.

Number of Pages in PDF File: 34

Keywords: Recidivism, punitive damages, extraterritoriality, Eighth Amendment, due process

JEL Classification: K13, K14, K19

Accepted Paper Series