54 Pages Posted: 9 Nov 2007
Punishment, whether in the criminal or civil justice system, is supposed to be proportionate to the offense. Yet, the Supreme Court has adopted vastly different standards for reviewing the proportionality of excessive punitive damages awards and excessive criminal punishments. And the Court's standards appear to be entirely backwards. For punitive damages awards, which are often made against powerful corporations with significant influence in the political process, the Court employs fairly rigorous proportionality review. By contrast, for lengthy prison sentences meted out against criminals who have little power in the political process, the Court has made clear that successful proportionality challenges will be exceedingly rare. This paper argues that the Court's proportionality jurisprudence is backwards. Because the political process can effectively deal with excessive punitive damages awards but not with disproportionate criminal punishments, it would make more sense for the judiciary to exert its countermajoritarian weight in the criminal punishment area.
Keywords: proportionality, punitive damages, excessive punishment, countermajoritarian, political process theory
Suggested Citation: Suggested Citation
Gershowitz, Adam M., The Supreme Court's Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards. Virginia Law Review, Vol. 86, No. 6, 2000. Available at SSRN: https://ssrn.com/abstract=1028643