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The Champion

August 2009 , Page 14 

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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 “instr

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