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If you are of a certain generation, the phrase “Your money or your life” brings to mind the answer of the allegedly penny-pinching comedian Jack Benny — “My life. I’m saving my money for my old age.” But most Americans would make the opposite choice, even if the choice is between your money and your life in prison (rather than immediate death). The majority of the Supreme Court, however, appears to have a different view. The justices now give more constitutional protections to a party’s money than to his freedom. Earlier this year, in Ewing v. California, the Court rejected a constitutional challenge to a life sentence, with no parole for at least 25 years, for stealing three golf clubs, because the defendant had two prior convictions and therefore was subject to California’s mandatory “three strikes and you’re out” law. (In a related case, Lockyer v. Andrade, the Court issued a similar holding for a man accused of stealing nine videotapes.) By way of contrast, when the issue is money in punitive damages cases, the Court has held that jury verdicts awarding several million dollars are unconstitutional. It is not just that the differing results are so striking. Much more alarming is the Court’s willingness to accept almost anything a legislature says is sound penal policy, even when the results in a given case are extraordinarily harsh, while expressing great skepticism at jury awards based on specific facts and arguments presented by both sides. To appreciate this discordance, a little background may be useful. A BIG DIFFERENCE For more than a decade, corporations have been trying to persuade the Supreme Court that large punitive damages awards are unconstitutional. The initial effort tried to characterize them as punishment and bring them within the Eighth Amendment to the Constitution, which prohibits “excessive fines” and “cruel and unusual punishments.” That approach did not succeed. But a majority of the Court later concluded, in BMW of North America Inc. v. Gore (1996), that substantive due process protects against excessive punitive damages verdicts. It solidified that holding last month in State Farm Mutual Automobile Insurance Co. v. Campbell. Which raises the question: Why? The awards that the Court reviewed did seem high. But there was no showing of jury prejudice against the defendants, and they were in any case well-represented at trial. Moreover, big business has the money and influence to get state legislatures to change the law, as it had already done in many states. Thus, it is difficult to see why the Court felt the need to protect these hardly powerless defendants from the judgments of the citizens who heard the evidence and saw the witnesses in those cases. But that is now the law. The Court’s punitive damages opinion in Cooper Industries Inc. v. Leatherman Tool Group Inc. (2001) brings us much closer to what happened in the three strikes case. Or more precisely, what did not happen there. In Cooper Industries, the Court was faced with the question of what degree of scrutiny appeals courts should give to a damages jury verdict that has been upheld by the trial judge. The majority ruled that the Constitution requires appellate courts to conduct an independent examination of the jury’s decision, to see whether it satisfies due process. In doing so, the Court relied in part on another case, United States v. Bajakajian (1998). There, it set aside a forfeiture of more than $350,000 that an alien had unlawfully failed to declare when he was leaving the country, on the ground that the forfeiture resulted in an “excessive fine” prohibited by the Eighth Amendment. It also cited criminal cases involving sentences of death and life in prison without parole as taking the same approach, despite recognizing what it called the “inherently imprecise” line between constitutional and unconstitutional sentences and punitive damages awards. Based on what the Court had done in these punitive damages cases, it should have taken a hard look in Ewing at a criminal sentence of 25 years to life for stealing golf clubs with a face value of $1,200. But after paying lip service to its prior decisions condemning grossly disproportionate sentences, the plurality opinion, written by Justice Sandra Day O’Connor, declined to take a close look at the objective evidence of disproportionality. Instead, it simply accepted the state’s theory that it has the right to punish repeat offenders as severely as it chooses. In his concurring opinion, Justice Antonin Scalia observed that the attempt to apply the proportionality test “in all fairness does not convincingly establish that 25-years-to-life is a ‘proportionate’ punishment for stealing three golf clubs.” But, he wrote, “the game is up once the plurality has acknowledged that ‘the Constitution does not mandate adoption of any one penological theory.’” Justices Scalia and Clarence Thomas voted to uphold the three strikes law because they reject the notion that there is a principle of proportionality in the Eighth Amendment. On the other hand, the plurality found that such a principle exists, but nonetheless gave the state such deference that the concept has lost all meaning. There is room for debate about whether the Eighth Amendment requires proportionality review. But at least the position taken by Justices Scalia and Thomas is consistent with their approach in civil cases, where they have argued that the due process clause does not assist defendants who have been hit with large punitive damages awards. The same cannot be said for the justices in the three-strikes plurality, all of whom voted for a thorough review of punitive damages judgments and for virtually no review of criminal sentences. It surely can’t be said about Justice Anthony Kennedy, who just last month wrote for the majority in another punitive damages case, the State Farm decision mentioned above. Kennedy had concurred with the Court’s plurality in the golf club criminal sentencing case. But his State Farm opinion specifically rejected the argument that the defendant’s history of being a “recidivist” would justify a high level of punitive damages — almost precisely the same argument that the plurality found dispositive in the three strikes case. WRONG ON EXCESS No one suggests that people who have been convicted of three serious, even if nonviolent, crimes should not be imprisoned for a significant time. And no one argues that corporations that engage in intentional wrongdoing should not pay punitive damages to their victims. The issue in both situations, rather, is what role the courts should have in policing alleged excesses. The answer that the Court has given is that if the issue is money — punitive damages, fines, or forfeitures — the courts are obligated to carefully review the ruling. But if a convicted criminal is sentenced to 25 years to life, the courts should stay away. In the hierarchy of values, as between “your money” and “your life in prison,” somehow money entitles you to greater judicial protection. I don’t think that most people would agree. Alan B. Morrison is director of the Public Citizen Litigation Group in Washington, D.C. He provided assistance to counsel for the defendant in the Ewing v. California “three strikes” case discussed here.

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