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Joseph Mueller is a law clerk at the federal district court in Boston. The views expressed are his alone. special to the national law journal Which is easier to challenge as unconstitutional: the length of a prison sentence or the amount of a punitive damages award? Under an odd pair of recent U.S. Supreme Court decisions, it’s the punitive award. In Ewing v. California, decided on March 5, the court considered whether a prison sentence of 25-years-to-life for shoplifting three golf clubs violated the Eighth Amendment’s protection against “cruel and unusual punishments.” The defendant, Gary Ewing, had been sentenced under California’s three-strikes law. Ewing had a felony record stretching back to the mid-1980s, but the offense that triggered the three-strikes law was the golf-club incident. The court upheld the sentence in a plurality opinion, stating that “[t]he Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” The opinion found that the Eighth Amendment does not mandate “comparative analysis” of sentences “within and between jurisdictions.” It also stressed that the length of a sentence can be based on a defendant’s felony history, since states have an interest in dealing more harshly with recidivists. But consider the civil side: In State Farm v. Campbell, the court considered whether a $145 million award of punitive damages against State Farm violated the 14th Amendment’s due process clause. State Farm had insisted on taking the case of Curtis Campbell, an insured driver, to trial and had declined a settlement offer without advising Campbell of his personal-liability risks. Campbell lost at trial. He later sued State Farm and showed that its actions were part of a national fraud scheme to meet corporate goals by capping payouts on claims. The jury awarded $2.6 million in compensatory damages and awarded $145 million in punitives, which the trial court reduced to $1 million and $25 million, respectively. The Utah Supreme Court reinstated the full punitives award, only to be reversed by the U.S. Supreme Court, which concluded that the 14th Amendment requires that “courts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.” The Supreme Court thought it important to compare the jury’s award to those in comparable cases, and also eschewed the idea of punishing a defendant for historical misconduct that was dissimilar from, and independent of, the acts upon which liability was based. A defendant “should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.” Ewing and State Farm were split decisions. Most justices took consistent stands in the two cases. Justices Antonin Scalia and Clarence Thomas, who believe the Constitution limits the type but not the quantity of punishment, voted to uphold both Ewing’s sentence and the punitive award against State Farm. Justices John Paul Stevens, David Souter and Stephen Breyer, who believe the Constitution does place restrictions on the quantity of punishment, voted to strike down both Ewing’s sentence and the punitive award against State Farm. But the lead opinions in Ewing and State Farm presented several strange inconsistencies. While only “grossly disproportionate” prison sentences are prohibited, the court found that punitive awards must be “reasonable and proportionate.” Comparative analysis is not required for evaluating the length of a prison term, but is a guidepost for analyzing the amount of punitive damages. And prior bad acts are more relevant for prison sentences than for punitive awards. Under these rules, it is harder to bring a constitutional challenge to the length of a prison sentence than to the amount of punitive damages. Indeed, while Ewing’s sentence of 25-years-to-life for stealing a few golf clubs seems at least as harsh as the punitive damages awarded against State Farm, the court upheld the sentence but reversed the punitive award. In State Farm, the court stated, “Although [punitive] awards serve the same purposes as criminal penalties, defendants subjected to punitive damages in civil cases have not been accorded the protections applicable in a criminal proceeding.” But the greater protections of the criminal process do not seem to justify less rigorous standards for the length of a prison term than for the amount of a civil punitive award. To the contrary, the stronger safeguards of the criminal process demonstrate a national judgment that more indeed is at stake-including a defendant’s liberty-and these higher stakes compel more exacting standards for prison terms than for punitive damages. Unfortunately, the court’s decisions in Ewing and State Farm took precisely the opposite approach.

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