Roth and Bambauer, ‘From Damage Caps to Decarceration: Extending Tort Law Safeguards to Criminal Sentencing’

ABSTRACT
The Supreme Court has recognized a civil defendant’s substantive due process right not to be subject to grossly excessive punitive damage awards. Such awards – even if furthering legitimate state interests in retribution and deterrence – must not be grossly disproportionate to the compensatory damages reflecting the actual harm suffered by the plaintiffs. More concretely, the ‘multiplier’ – the ratio of punitive to compensatory damages – cannot be too high, with anything exceeding a 10:1 ratio deemed presumptively excessive. This Article is the first to argue that a similar test should guard against grossly excessive criminal punishments; indeed, it seems odd that large corporations committing civil wrongs enjoy greater protection against overpunishment than criminal defendants, given the devastating effects of mass incarceration, particularly on communities of color. As we show, there are compelling constitutional, logical, and policy reasons to ensure that criminal punishments are not grossly disproportionate to the harm caused. In turn, although criminal courts might find the task of estimating the harm caused by a crime unfamiliar, we show how this could be done through surveys measuring the prison time a would-be victim would be willing to endure to avoid the crime. Scholars have used such error-preference surveys in other legal contexts, but not yet in determining proportionality of punishment. We offer a survey example as proof of concept and fodder for future research, and we report initial results corroborating the intuition that some crimes routinely trigger sentences grossly disproportionate to harm caused. Whether or not criminal courts impose due process limits on punishment, our arguments and findings can be wielded by litigants, judges, and policy advocates to argue for lower sentences in individual cases, as well as to push for critically overdue sentencing reform.

Roth, Andrea L and Yakowitz Bambauer, Jane R, From Damage Caps to Decarceration: Extending Tort Law Safeguards to Criminal Sentencing (March 9, 2021). Boston University Law Review, forthcoming.

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