A Pragmatic Approach to the Eighth Amendment and Punitive Damages

Abstract

The Supreme Court has “constitutionalized” punitive damage awards under state law by holding that the Due Process Clause of the Fourteenth Amendment constrains such awards. But the Court went that route only after rejecting the argument that the Eighth Amendment’s Excessive Fines Clause limited such awards in Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989). This article argues that subsequent decisions of the Court demonstrate that Browning-Ferris was wrongly decided. In particular, the Court’s subsequent decisions holding that the Excessive Fines Clause applies to civil forfeiture actions brought by the United States, and that there is “state action” for constitutional purposes when a judge excuses a juror peremptorily stricken by a private party in a civil case both undermine the rationale that the Excessive Fines Clause does not apply to “punitive” awards in civil suits between private parties.