Breaking News

An Initial Thought on Exxon and Kennedy

I expect that over the next few days a lot of ink will be spilled by a lot of people much smarter than I about the similarities between the Court’s decisions today in Exxon and Kennedy.  I’ll offer this initial observation: in both cases the Court imposed bright-line rules at least in part out of a frustration with prior attempts to constrain arbitrary outcomes through procedural or other indireect protections.

The first part is pretty obvious: both decisions establish simple, bright line restrictions on punishment.  The Court’s opinion in Kennedy holds that the death penalty is never constitutional for child rape (absent the death of the child).  In fact, the opinion seems quite clearly to go beyond the simple question of child rape to decide that at least “[a]s it related to crimes against individuals, the death penalty should not be expanded to instances where the victim’s life was not taken.”  And equally obviously, the Court establishes a bright line 1:1 ratio of punitive to compensatory damages in maritime cases, at least in the absence of aggravating factors.  Moreover, the Court even seems to suggest that it may, in the future, constitutionalize this ratio across the board (see fn. 28).

Perhaps a bit less obvious, however, is that the Court comes to adopt these bright lines in both cases at least in part out of a concern that its prior attempts to constrain arbitrary punishment through procedural (or at least indirect) constraints has not worked well enough.

In Kennedy, the majority opinion notes that the Court has previously required in capital cases that States narrow the class of death-eligible defendants through “general rules” while also allowing juries to make individualized determinations about who, within the class, is given the death penalty.  Justice Kennedyy notes, however, that the consequence has been a degree of arbitrariness is “not all together satisfactory.”  He further describes the Court’s death penalty jurisprudence a body of law “still in search of a unifying principle.”  And that is a reason, the majority concludes, to draw a firm and bright line precluding further extension of the death penalty outside of cases involving the death of the victim.  Given the large numbers of child rape cases, the Court worries, the arbitrariness the current death penalty jurisprudence has failed to constrain would be vastly expanded.

In Exxon, the Court is less explicit, but is nonetheless acting against a similar backdrop.  In its initial due process decisions, the Court tried to deal with the arbitrariness of some punitive damages verdicts through procedural safeguards – it required courts to give juries some guidance on standards for making awards and required judicial review of jury verdicts.  It has more recently placed limits on the things juries can take into account (like injuries imposed on non-parties).  A majority of the Court eventually came to view these procedural measures as inadequate and started down the course of establishing substantive limitations on punitive damages awards.  The initial cases involved state awards and, therefore, constitutional limitations.  Those limitations were broad and non-specific.  But the Court was apparently unsatisfied with the results of those efforts and, in recent cases, has established limits that are more specific and less complicated.  That trend reached a new high (or low, depending on your perspective) point today in Exxon.  Because the case arose under maritime law, the Court could claim additional license to establish legislative-like rules, it opted for an exceedingly simple, and very bright-line rule, limiting punitive damages to the amount of compensatory damages in ordinary cases (while leaving open a higher ration when the circumstances are aggravated).

In both cases, the Court has shown not only frustration with the ability of less direct constraints to avoid arbitrariness, but also a high degree of skepticism about the ability of juries to mete out punishment fairly, and the capacity of state judges to adequately police jury verdicts, at least with the consistency that the Court now demands.  At the same time, the Court has show great confidence in its own ability to draw, and impose, the proper line between appropriate and excessive punishment.  Whether that confidence is justified, and whether its imposition of its own line-drawing views is appropriate, will no doubt be a matter of much dispute.