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August 2009, Page 14
Due Process Challenges to Discretionary Sentences
By Jeffrey L. Fisher
Many criminal defense lawyers are at least vaguely aware that, over the past several years, the Supreme Court has issued a string of decisions holding that large punitive damages awards violate the Due Process Clause. But thus far few appear to have noticed that these decisions involving civil punishment are highly relevant to the constitutionality of criminal punishment as well. Specifically, the Supreme Court’s current punitive damages jurisprudence calls into serious question severe sentences meted out under discretionary sentencing systems. It is time for criminal defense lawyers to bring this to the attention of state courts across the country and, if necessary, to the Supreme Court.
The Supreme Court’s Punitive Damages Jurisprudence
Under the common law method of assessing punitive damages, which still prevails in most jurisdictions, a jury need not abide by any particular limitations in setting the amount of such an award. As the Supreme Court has put it, the jury is simply “instructed to consider the gravity of the wrong and the need to deter similar wrongful conduct.”1 With this generalized guidance, the jury is largely free to decide how much money the defendant should be forced to pay to the plaintiff. The defendant has a right to appeal, but review is limited to whether the jury abused its discretion or acted with passion or prejudice — a test that defers substantially to trial court proceedings and that rarely results in reversal. And neither the Eighth Amendment nor any other federal constitutional provision directly limits the size of punitive damages awards.2
But in four cases over the past 12 years, the Supreme Court has invoked the “fair notice” aspect of the Due Process Clause to strike down a series of multi-million dollar awards.3 It also invoked federal common law (obviating the need to expressly rely on the Constitution) last year to hold that the punitive award imposed in the wake of the Exxon Valdez oil spill was out of bounds.4
The Exxon opinion is, in many ways, the culmination of the Court’s work in this area, for it finally crystallizes the theoretical underpinnings of the Due Process Clause’s regulation of punitive damages. The Due Process Clause is not concerned so much with whether any given punitive award is severe as with whether it is an outlier. “The real problem,” the Court said in Exxon, “is the stark unpredictability of punitive awards” in most jurisdictions.5 The “spread between high and low individual awards” in cases involving similar conduct, the Court continued, “is unacceptable.”6 Thus, when a court confronts a punitive award that is substantially out of line with typical awards for similar conduct, the court should reduce the award accordingly.7
Comparing Punitive Damages To Criminal Sentencing
This mandate to reduce unwarranted disparities in punishment should sound familiar. In a nutshell, the Court perceives the common law system of imposing punitive damages as mirroring two historically erratic systems of imposing criminal punishment. The Court in Exxon expressly referred to one such system: the sentencing system for noncapital felonies that prevailed in federal courts before the advent of the Federal Sentencing Guidelines.8 Under that system, judges had unfettered discretion to choose sentences within enormous ranges.9 Judges, as a functional matter, could follow any theory of punishment they desired, and they could rely on any factors they wished in selecting sentences.10 Consequently, a defendant who came up for sentencing had “no way of knowing or reliably predicting whether he [would] walk out of the courtroom on probation, or be locked up for a term of years that may consume the rest of his life, or something in between.”11 “[S]imilarly situated offenders were sentenced [to], and did actually serve, widely disparate sentences.”12
The second system — not mentioned by the Court, but seemingly equally if not more salient — is the system of capital punishment that existed in the states prior to the Supreme Court’s decision in Furman v. Georgia.13 Under that system, every defendant convicted of murder or other capital offenses was subject to the death penalty. Yet state law gave juries no rules or even guidance toward determining which offenders should be sentenced to death. As a result, capital punishment was arbitrarily imposed on an unlucky — rather than a necessarily more reprehensible — slice of the class of eligible offenders.14
As with punitive damages, reform was necessary in both of these criminal sentencing systems not because the punishments at issue were too severe in absolute terms, but rather because they were too erratic. The Constitution required regularization (although we know that only in retrospect with respect to federal sentencing).
The Now-Apparent Problem With Discretionary Sentencing
The Supreme Court’s merging of punitive damages jurisprudence with criminal sentencing jurisprudence is relevant to one other system of criminal sentencing — a system still in full force and effect. Though it is often forgotten in light of the focus on the evolving and lately dramatic story of federal sentencing (and to a lesser extent on the recent movement in many states toward various forms of guideline or presumptive sentencing), many states in the country still follow a general model of granting unfettered sentencing discretion within widely prescribed sentencing ranges. These systems resemble the common law system of awarding punitive damages and effectively retain all of the vices of the old federal system that the Court decried in Exxon.
The states that follow a criminal sentencing model that most closely resembles the common law method of assessing punitive damages are the six states that provide for jury sentencing.15 While there is some variation among these systems, the systems generally allow juries unfettered discretion to select sentences for felonies within broad sentencing ranges. In Virginia, for example, rape is punishable by between five years and life.16 With respect to crimes that do not carry specific ranges, class two felonies are punishable by between 20 years and life; class three felonies are punishable by between five and 20 years; class four felonies are punishable by between two and 10 years; and class five felonies are punishable by between one and 10 years.17 Virginia and two other states have adopted sentencing guidelines to guide judges when sentencing within these wide ranges following bench trials and guilty pleas. But, curiously enough, these states forbid juries from being given this information when imposing sentences following jury trials.18 The three other states that allow jury sentencing likewise give juries no instructions or guidance regarding average or typical sentences for like offenders.19
Although precious little in the way of systematic, empirical research has been done respecting the output of these systems, the (predictable) result appears to be a high degree of variation of sentences for similarly situated offenders.20 In Virginia, less than one-third of jury sentences fall within the guidelines recommendations given to judges.21 In a study involving one Texas county, judges related “copious evidence of unjustified disparity in jury sentences.”22 For instance, one Texas judge described a gang rape that gave rise to several separate trials. The juries gave the defendants sentences ranging from a two-year suspended sentence to a 40-year prison term for the one who appeared to be the least culpable.23
It requires little reflection to see the strong resemblance between this situation and the state of affairs that has given rise to the Supreme Court’s due process jurisprudence regulating punitive damages. Existing legislation is sparse and does not seriously regularize punishment. Sentences are starkly unpredictable. And defendants occasionally receive large, outlier sentences without any apparent explanation. Such defendants, therefore, appear to have a strong argument that their sentences violate the Due Process Clause and thus should be reduced.
The same appears true for defendants who receive unusually harsh sentences in states — and there appear to be at least two and perhaps as many as three dozen such states24 — that afford judges unfettered discretion in imposing sentences. It appears that no one has done any recent study to measure variability and sentencing disparities in such a system. But if the pre-guidelines story of federal sentencing is any indication, there is every reason to believe that these judge-based systems generate the same kinds of variations and occasional arbitrariness as jury-sentencing systems do. And the Due Process Clause applies just as squarely to judicially selected punishments as ones imposed by juries.
To be sure, state systems that allow wide sentencing discretion contain some features that differentiate them from the common law system of awarding punitive damages. Most notably, criminal statutes always prescribe a maximum sentence, even if it is death or a prison term of life. But the same is true of many state and federal laws allowing punitive damages. Twenty-one states cap punitive damages in absolute dollar terms or according to the ratio a punitive award may bear to compensatory damages.25 Many federal laws, such as Title VII, do the same.26 Yet courts have recognized that the Due Process Clause may still require them to reduce punitive awards that are already within those outer markers.27 There is no reason why the same should not be the case with respect to criminal sentences.
States defending due process challenges to severe criminal sentences might also point out that criminal trials involve publicly accountable prosecutors, who may not urge judges and juries to impose maximum possible punishments as often as plaintiffs’ lawyers do. Criminal sentencing law also contains unique post-adjudication components that may smooth out unjustified disparities to some degree. Parole boards are commonly entrusted with the power to release prisoners once they have served portions of indeterminate sentences. Clemency boards and state governors likewise have the power — even if very rarely invoked — to mitigate the severity of outlier sentences.
Nevertheless, these distinctions do not seem to point to any real differences. Plenty of prosecutors seek maximum sentences, and to the extent that prosecutors are publicly accountable, the public is often the source of pressure to seek more, not less, severe sentences. Furthermore, nothing about the ability of a parole board or other entity to pretermit a sentence in the future means that a reviewing court should forego limiting a sentence’s outside length, to the extent the sentence would violate due process if carried beyond a certain point. In short, it should be very hard for courts to avoid applying the Supreme Court’s new regularization jurisprudence in the context of a well-framed attack on an outlier sentence imposed in an unstructured state-sentencing system.
Tens of thousands of offenders per year are sentenced under these kinds of discretionary sentencing systems, and their liberty surely matters as much as the pocket books of corporations. To the extent the Due Process Clause has not been brought to bear on these sentencing systems because solid, statistical evidence documenting unpredictability does not exist — or, even worse, because members of the Supreme Court and the relevant state judiciaries are unaware of the parallels between these systems and the common law system for imposing punitive damages — that should change. If the mission of the Due Process Clause is now seriously to regularize punishment, there is no reason why that mission should be limited to civil cases.
Conclusion
Although the Supreme Court has long held that it will defer to state legislatures’ determinations concerning the permissible length of prison sentences, the Supreme Court’s new punitive damages jurisprudence indicates that the Due Process Clause no longer tolerates wide and unjustified disparities concerning which individuals receive unusually long sentences. It is now up to criminal defense lawyers across the country to invoke this principle to their clients’ benefit. If this means that public defender offices or other organizations need to start gathering the statewide statistical evidence necessary to prove claims of gross disparity, that work should begin right away. Years of our clients’ lives depend on it.
This article is derived from the author’s earlier article, The Exxon Valdez Case and Regularizing Punishment, 26 Alaska L. Rev. 1 (2009).
© Jeffrey L. Fisher, 2009. All rights reserved.
Notes
1. Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 15 (1991).
2. Browning-Farris Indus. v. Kelco Disposal, Inc., 492 U.S. 257, 275-76 (1989).
3. See Philip Morris USA v. Williams, 549 U.S. 346 (2007); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); Cooper Indus. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); BMW v. Gore, 517 U.S. 559 (1996).
4. Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008). I have represented the plaintiffs in this case since 2001, and I argued their case in the Supreme Court.
5. Exxon, 128 S. Ct. at 2625.
6. Id.
7. Id. at 2634 (reducing Exxon award in this manner).
8. Id. at 2626-28.
9. Id. at 2628.
10. Id.
11. Marvin Frankel, Criminal Sentences: Law Without Order 6 (1972).
12. Exxon, 128 S. Ct. at 2628.
13. 408 U.S. 238 (1972).
14. Id. at 309-10 (Stewart, J., concurring).
15. The six states are Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia. Nancy J. King & Rosevelt L. Noble, Felony Jury Sentencing in Practice: A Three-State Study, 57 Vand. L. Rev. 885, 886 (2004).
16. Va. Code Ann. § 18.2-6(B).
17. Va. Code Ann. § 18.2-10(a-e). Other states have similarly broad ranges. E.g., Ky. Rev. Stat. Ann. § 532.060(2); Ark. Code Ann.
§ 5-4-401(a).
18. Nancy J. King & Rosevelt L. Noble, Felony Jury Sentencing in Practice: A Three-State Study, 57 Vand. L. Rev. 885, 888-89 (2004); Nancy J. King & Rosevelt L. Noble, Jury Sentencing in Noncapital Cases: Comparing Severity and Variance in Two States, 2 J. Empirical Legal Stud. 331, 337 (2005); See, e.g., Ark. Code. Ann. § 16-90-803-04; Stephanie Gardner Holder, Survey: Criminal Procedure, 16 U. Ark. Little Rock L.J. 99 (1994); Robert S. Dierker, 32 Missouri Practice: Missouri Criminal Law §58.8 (2008 update). Based on interviews with judges, prosecutors, and defense lawyers, King and Noble speculate that these states may leave juries “in the dark,” in part, to introduce greater variability and severity into jury sentencing, and thereby to encourage plea bargains. To the extent that is so, such systems raise even more serious due process concerns than I pose above. See Haslip, 499 U.S. at 59 (O’Connor, J., dissenting) (“The Due Process Clause does not permit a state to classify arbitrariness as a virtue. Indeed, the point of due process — of the law in general — is to allow citizens to order their behavior.”).
19. Those states are Kentucky, Oklahoma, and Texas. King & Noble, supra note 18, at 888-89.
20. King & Noble, Jury Sentencing in Noncapital Cases, supra note 18, at 351-57 (reciting findings from a study of jury sentences in Virginia and Arkansas); Robert A. Weninger, Jury Sentencing in Noncapital Cases: A Case Study of El Paso County, Texas, 45 Wash. Univ. J. of Urban & Contemp. Law. 3, 28-29, 32 (1994).
21. King & Noble, Jury Sentencing in Noncapital Cases, supra note 18, at 354.
22. Weninger, supra note 20, at 28.
23. Id. at 29.
24. See Dept. of Justice, Office of Justice Programs, 1996 National Survey of State Sentencing Structures 3-6 (classifying 36 states as having “predominately indeterminate sentencing structure[s],” which tend to allow wide discretion in sentencing); Jon Wool & Don Stemen, Aggravated Sentencing: Blakely v. Washington: Practical Implications for State Sentencing Systems, at 3 (Vera Institute of Justice State Sentencing and Corrections Policy and Practice Review, Aug. 2004) (listing 13 states as restricting judicial discretion through binding guidelines and 12 others as having advisory or voluntary guidelines, leaving the other 25 as purely discretionary systems).
25. See Cooper, 532 U.S. at 433 n.6; BMW, 517 U.S. at 614-16 (Ginsburg, J., dissenting) (collecting such statutes).
26. See, e.g., 42 U.S.C. § 1981a (1991) (intentional employment discrimination; limiting awards to $50,000 to $300,000, depending on size of employer); 7 U.S.C. §21 (2008) (law governing futures exchanges; limited to two times actual damages).
27. See, e.g., Gilbert v. Security Finance Corp., 152 P.3d 165, 179 (Okla. 2006).
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