Why Punitive Damages and Criminal Sentences Are Reviewed Differently and What it Means to Your Appeal
It is always a curious thing when the courts approach two apparently similar questions in dissimilar ways. Recognizing such discrepancies can help practitioners develop better arguments by unpacking the underlying premises behind such curiosities. For example, although both civil punitive damage awards and criminal sentences are intended to address past wrongs and deter future wrongdoing, appellate courts review criminal sentences and civil punitive damage awards differently, granting greater deference to a trial court’s decision regarding the proper criminal sentence to impose than to the very same trial court’s decision regarding the proper amount of punitive damages to permit after a civil jury verdict. This article will show how the similar rationales underlying the two different standards of appellate review can help appellate practitioners strengthen their arguments in favor of more or less exacting appellate review, as the case may require.
When the Supreme Court strengthened the constitutional rules in criminal sentencing, beginning in United States v. Booker, 543 U.S. 220 (2005),1 many wondered whether stricter constitutional sentencing requirements would result in stricter appellate review of sentences.2 Though the Supreme Court thought it made the standard for reviewing criminal sentences “pellucidly clear” in Booker, the Court was recently forced to clarify lingering confusion and expressly hold that the post- Booker standard of review for federal sentencing decisions is abuse of discretion.3 Meanwhile, as the Supreme Court was expanding the discretionary power of trial judges over criminal sentencing, a similar revolution in civil punitive damages doctrine was lessening a trial judge’s discretion regarding civil punitive damage awards and establishing that the standard of review for such awards is de novo.4 True, “[i]f no constitutional issue is raised,” federal appellate review of civil punitive damage awards is the same abuse-of-discretion standard applied to the substantive review of federal criminal sentences,5 but the Supreme Court’s increasing willingness to enforce “procedural and substantive constitutional limitations on these awards” has created a regular constitutional component to appellate review of punitive damage awards, triggering the more exacting de novo standard of review.6
The Supreme Court’s recent decision in Exxon Shipping Co. v. Baker,
128 S. Ct. 2605 (2008), highlights the distinction between usual federal de novo appellate review of civil punitive damage claims under applicable state tort laws and the more exacting abuse-of-discretion standard applied in the narrow class of federal maritime cases. In fact, Exxon Shipping Co. illustrates the Supreme Court’s use of similar rationales to justify both standards.7
I limit this discussion to federal appellate review, because the question is starkly presented. Unlike Florida state courts, the same trial judges preside over both civil and criminal cases. Moreover, the federal [s]entencing [g]uidelines and controlling Supreme Court authorities provide a uniform lens through which to consider the issue. Even in civil cases where the federal courts are applying state tort law, it is federal appellate law that provides the standard of review for enforcing constitutional limits.
In recent decisions, the Supreme Court has been expanding the power of appellate courts to vacate trial court punitive damage decisions, while at the same time it has been limiting the power of appellate courts to vacate criminal sentencing decisions. In each context, the Supreme Court has identified “reasonableness” as the guidepost for court review.
Yet, in the criminal realm, one rationale provided for requiring the abuse-of-discretion standard is that “district courts have an institutional advantage over appellate courts” because the trial court “must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing.”8 Meanwhile, in the civil context, punitive damage review must be de novo because “[e]xacting appellate review ensures that an award of punitive damages is based upon an application of law, rather than a decisionmaker’s caprice.”9 Curiously, the language and rationales used by the Court in these two realms are nearly identical but have led the Court to justify two different standards of appellate review.
Exploring this conundrum requires an examination of the steps involved in each type of decision, recognizing that an appellate court is not answering a question for itself; rather, it is reviewing an answer already determined by an initial decisionmaker who was guided by distinct standards different from the standards applied by the appellate court. The level of deference an appellate court gives to the trial court is usually related to the types of considerations that factored into the trial court’s initial decision.10 Certainly, there are great differences between the civil and criminal realms, but the Supreme Court has recognized the commonalities between the two realms in fashioning standards of review. Indeed, the roots of the abuse-of-discretion standard in criminal sentencing review may be traced directly to the use of that review in both civil and criminal appellate review.11 The level of deference accorded the trial court depends on the factors and institutional considerations underlying the initial decision, not whether the case is civil or criminal.
In criminal sentencing, the initial decision is made after the jury determines the defendant’s guilt, when the trial judge must first calculate the advisory guideline sentencing range, then consider the sentencing factors set forth in 18 U.S.C. 3553(a), and finally make an individualized assessment of the proper sentence based upon the facts presented, justifying his reasons sufficiently to allow for appellate review.12
In civil cases, generally speaking, and ignoring minor variations in state procedures, after the jury makes an initial determination of the necessity and amount of a punitive damage award (if any), the trial judge may consider a motion to reduce that award as “grossly excessive” pursuant to constitutional standards.13
In criminal cases, the trial judge’s initial decision is guided by statutory factors including 1) the nature and circumstances of the offense; 2) the history and characteristics of the defendant; 3) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed treatment; 4) the kinds of sentences available (statutory limits and guideline ranges); and 5) the need to avoid unwarranted sentencing disparities.14 The trial judge’s ultimate charge is to impose a sentence “sufficient, but not greater than necessary” to comply with Congress’ statutory sentencing guidance.15
In civil cases, the trial judge’s initial application of the Gore standards for weighing the amount of the jury’s punitive damage award requires the judge to consider 1) the degree of reprehensibility of the defendant’s misconduct; 2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award; and 3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.16 In determining the reprehensibility of the civil defendant’s misconduct, the courts are to be guided by whether a) the harm caused was physical as opposed to economic; b) the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; c) the target of the conduct had financial vulnerability; d) the conduct involved repeated actions or was an isolated incident; and e) the harm was the result of intentional malice, trickery, or deceit, or mere accident.17
These two sets of guiding standards to be used by the trial courts in making their initial determinations are remarkably similar. Even the considerations used in civil cases to weigh the reprehensibility of the defendant’s misconduct find recognition in strikingly analogous language in the various sentencing guideline provisions awarding enhancements or decreases to the criminal defendant’s guideline range. A reckless disregard to the health and safety of others is grounds for a guideline offense level enhancement pursuant to U.S.S.G. §3C1.2 and an upward departure from the guideline sentencing range pursuant to U.S.S.G. §8C4.2. The vulnerability of the victims is grounds for an offense level enhancement pursuant to U.S.S.G. §3A1.1(b). An offense that is committed “as part of a pattern of criminal conduct engaged in as a livelihood” triggers a minimum offense level, pursuant to U.S.S.G. §4B1.3, superseding any otherwise applicable guideline offense level. Crimes that involve fraud and deceit are addressed in U.S.S.G. §2B1.1.18
Where the standards diverge, however, is at the level of appellate review. An appellate court reviewing a criminal sentence must first ensure that the trial judge followed proper procedures in applying the sentencing guidelines and considering the statutory factors, but “should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.”19 “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district.”20
Conversely, it is precisely this sort of disagreement with the trial judge’s decision that is determinative of the appellate court’s de novo review of the trial judge’s determination of a proper civil punitive damage award.21
The Supreme Court attempted to explain this difference in Campbell, reasoning that “[a]lthough these 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.”22 True, criminal defendants are provided a host of protections against unreasonable searches, coerced testimony, and presumptions of guilt, but those protections factor into the initial question of guilt, not the determination of the proper sentence. In fact, criminal defendants may be sentenced on the basis of uncharged or acquitted conduct,23 and unrelated past criminal conduct,24 while the Supreme Court has recently further limited these same types of inputs from being used in the calculation of punitive damages.25 The Supreme Court also cited the “imprecise manner in which punitive damage systems are administered,” including the “[v]ague instructions” and “wide discretion” given to civil juries in making their initial determination.26 This rationale, however, justifies exacting review of the jury’s award by the trial judge, not exacting appellate review of the trial judge’s decision.
In contrast, the Supreme Court has gone so far in allowing appellate court deference toward criminal sentencing decisions by the trial courts that it has authorized (though not required) appellate courts to apply a presumption of reasonableness in any sentence imposed within the advisory guideline range.27 The Supreme Court justified the nonbinding presumption on the grounds that “the presumption reflects the fact that, by the time an appeals court is considering a within-guidelines sentence on review, both the sentencing judge and the [s]entencing [c]ommission will have reached the same conclusion as to the proper sentence in the particular case.”28 The Court also noted that the sentencing standards codified in 18 U.S.C. §3553(a) and incorporated into the [s]entencing [g]uidelines inform the trial court’s decision, and are the product of ongoing analysis by the [s]entencing [c]ommission based upon data collected from cases and sentences from around the country.29 The Supreme Court emphasized that the presumption was to be applied by the appellate court, not the trial court making the initial decision whether to impose sentence within the advisory guideline range.30
None of these rationales for limited appellate scrutiny of criminal sentences really distinguishes
the de novo review applied to civil punitive damage awards. Civil trial judges have day-to-day experience with civil trials and damage awards. the time the appellate court is reviewing the case, both the civil trial judge and a jury have had input into the proper amount of punitive damages to impose, using many of the same initial factors used to calculate the advisory guideline criminal sentencing range.
Commentators have also noted the Supreme Court’s discrepancy in how it discusses the role of proportionality in the two classes of cases.31 In both spheres, the Supreme Court has expressly rejected the use of a “rigid mathematical formula” or “rigid benchmarks” to determine the substantive reasonableness of the sentence or award.32 Nevertheless, in reviewing punitive damage awards, the Court stated that due process limitations might only allow “ratios [between punitive damages and compensatory damages] greater than those we have previously upheld. . . where ‘a particularly egregious act has resulted in only a small amount of economic damages.’”33 Yet, thereafter, the Supreme Court recognized the “infirmit[y]” of the “mathematical” approach to reviewing variances from the advisory guideline sentencing range because “deviations from the [g]uidelines range will always appear more extreme — in percentage terms — when the range itself is low.”34 The Court has found no way to mathematically consider intangible criminal factors such as the withdrawal from a conspiracy, but it has recognized the need for punitive damages to account for civil damage factors such as the “outrage and humiliation the Campbells suffered at the actions of their insurer.”35 Trying to weigh unquantifiable criminal actions during the review of criminal sentences “is a classic example of attempting to measure an inventory of apples by counting oranges,”36 but in reviewing punitive damage awards, “[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the [s]tate’s goals of deterrence and retribution.”37 The distinguishing feature is that “proportional review” is necessarily “inconsistent with the rule that the abuse-of-discretion standard of review applies to appellate review of all sentencing decisions — whether inside or outside the [g]uidelines range.”38 If the trial judge is to be accorded discretion, he or she cannot be held to a mathematical formula.
One could argue that exacting appellate review is required in punitive damages cases because the courts are policing these awards on the basis of a constitutional prohibition against “grossly excessive or arbitrary punishments on a tortfeasor,” stemming from the Eighth Amendment and the due process clause of the Fourteenth Amendment,39 whereas in criminal cases the courts are only enforcing a statutory mandate that sentences be “sufficient, but not greater than necessary” to affect the purposes of 18 U.S.C. §3553. Yet, the Supreme Court’s jurisprudence guarding against “grossly disproportionate” criminal sentences under the Eighth Amendment has not yielded nearly the regular appellate scrutiny that has arisen in civil punitive damage review.40
Whether appellate courts should be more deferential to the trial courts’ enforcement of a mere statutory regulation and more scrutinizing of the trial courts’ efforts to conform to a constitutional mandate and whether criminal sentencing review should be more exacting or civil punitive damage review more deferential are policy preferences fit for academicians and politicians. The practitioner is more concerned with useful arguments and sources of remedy. A practical difference explaining the deference accorded to trial courts imposing criminal sentences may be the statutory limits guarding the maximum and minimum sentencing extremes and the sentencing guidelines that inform the trial court’s discretion within those extremes. No such legislative input guides punitive damage awards.41 Highlighting this void may be the civil defense practitioner’s best argument for the appellate court to aggressively monitor trial court punitive damage decisions. Conversely, the civil plaintiff’s appellate attorney should focus on the similarity of inputs going into the two types of decisions, even if the considerations for punitive damages have been developed by the courts and not codified by guideline or statute, and argue that even de novo appellate review should respect the quality of the initial punitive damage decision.
In addition, the legislature can always assess whether it is comfortable with this situation. There can be no question of “activism” or proper judicial oversight of tort relief (whichever side of the ideological divide one occupies) if the legislative branch fills the void.42 To date, legislative attempts to impose punitive damage caps have narrowly focused on the interests of tort reform. Perhaps a broader view toward providing meaningful legislative guidance regarding both the minimum and the maximum bounds of proper punitive damages, as well as factors to be considered in crafting the award, may be prudent.43
1 Booker, 543 U.S. 220 (holding that applying the federal sentencing guidelines in a mandatory fashion would violate the Sixth Amendment right to a jury trial).
2 See, e.g., Paul F. Kirgis, The Right to a Jury Decision on Sentencing Facts After Booker: What the Seventh Amendment Can Teach the Sixth, 39 Ga. L. Rev. 895, 934-42 (Spring 2005) (noting disparity of appellate review of punitive damage awards and post-Booker criminal sentences); see generally Michael P. O’Shea, Purposeless Restraints: Fourteenth Amendment Rationality Scrutiny and the Constitutional Review of Prison Sentences, 72 Tenn. L. Rev. 1041 (Summer 2005) (discussing various theories of criminal sentence review prior to the Supreme Court’s Booker decision).
3 Gall v. United States, 128 S. Ct. 586, 594 (2007).
4 See Philip Morris USA v. Williams, 127 S. Ct. 1057, 1062 (2007) (citing Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 443 (2001)).
5 Cooper Indus., Inc., 532 U.S. at 433.
6 See State Farm Mutual Auto Insurance Co. v. Campbell, 538 U.S. 408, 416-17 (2003).
7 Exxon Shipping Co., 128 S. Ct. at 2625-29 (noting the lack of punitive damage guidelines and the need for consistency in punitive damage review).
8 Rita v. United States, 127 S. Ct. 2456, 2472 (2007) (Stevens, J., concurring) (citation omitted).
9 Campbell, 538 U.S. at 418 (internal quotations and citations omitted).
10 See generally, United States v. Williams, 340 F.3d 1231, 1234-44 (11th Cir. 2003) (exploring the various levels of deference accorded different types of sentencing decisions made by the trial courts).
11 See Rita, 127 S. Ct. at 2471-72 (Stevens, J., concurring) (citing Pierce v. Underwood, 487 U.S. 552 (1988) (review of attorneys’ fees award); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) (review of judicial imposition of sanctions pursuant to Fed. R. Civ. Pro. 11); and Koon v. United States, 518 U.S. 81 (1996) (review of criminal sentencing decision)).
12 See Gall, 128 S. Ct. at 596-97.
13 See Cooper Indus., Inc., 532 U.S. at 434 (citing Gore, 517 U.S. at 562).
14 18 U.S.C. §3553(a).
16 Campbell, 538 U.S. at 418 (citing Gore, 517 U.S. at 575).
17 Id. at 419 (citing Gore, 517 U.S. at 576-77).
18 See Kirgis, The Right to a Jury Decision on Sentencing Facts After Booker: What the Seventh Amendment Can Teach the Sixth, 39Ga. L. Rev. at 938-39 (Spring 2005).
19 Gall, 128 S. Ct. at 597.
21 See Campbell, 538 U.S. at 418.
22 Id. at 417.
23 See United States v. Douglas, 489 F.3d 1117, 1129 (11th Cir. 2007) (interpreting Booker).
24 See Kimbrough v. United States, 128 S. Ct. 558, 571 (2007) (“Congress has specifically required the [s]entencing [c]ommission to set [g]uidelines sentences for serious recidivist offenders ‘at or near’ the statutory maximum,” citing 28 U.S.C. §994(h), (i)).
25 See Campbell, 538 U.S. at 422-23 (precluding consideration of conduct in other jurisdictions or
other “dissimilar acts,” allowing consideration of recidivism only where “the conduct in question replicates the prior transgressions”).
26 Id. at 417-18 (citing Honda Motor Co. v. Oberg, 512 U.S. 415, 432 (1994)).
27 Rita, 127 S. Ct at 2462-65.
28 Id. at 2463 (emphasis in original).
29 Id. at 2463-65.
30 Id. at 2465.
31 See Tom Stacy, Cleaning Up the Eighth Amendment Mess, 14 Wm. & Mary Bill Rts. J. 475, 501 (Dec. 2005) (noting difference in proportionality approaches between punitive damages review and criminal sentence review); Alice Ristroph, Abstract, Proportionality as a Principle of Limited Government, 55 Duke L. J. 263, 297 (Nov. 2005) (same); Richard S. Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: “Proportionality” Relative to What?, 89 Minn. L. Rev. 571, 607 (Feb. 2005) (same).
32 Gall, 128 S. Ct. at 595; Campbell, 538 U.S. at 425. But see Exxon Shipping Co. 128 S. Ct. at 2632-33 (embracing a ratio analysis under its maritime review jurisdiction).
33 Campbell, 538 U.S. at 425 (quoting Gore, 517 U.S. at 582).
34 Gall, 128 S. Ct. at 595.
35 Compare Gall, 128 S. Ct. at 596, with Campbell, 538 U.S. at 426.
36 Gall, 128 S. Ct. at 596.
37 Campbell, 538 U.S. at 425.
38 Gall, 128 S. Ct. at 596.
39 See Campbell, 538 U.S. at 416; Cooper Indus., Inc., 532 U.S. at 433-34.
40 See Ewing v. California, 538 U.S. 11, 20-24 (2003) (plurality opinion).
41 See Exxon Shipping Co., 128 S. Ct. at 2627-29.
42 See Exxon Shipping Co., 128 S. Ct. at 2629-30 (recognizing the courts’ primary role in the evolution of punitive damages).
43 See Jenny Miao Jiang, Comment, Whimsical Punishment: The Vice of Federal Intervention, Constitutionalization, and Substantive Due Process in Punitive Damages Law, 94 Cal. L. Rev. 793, 813-19 (May 2006) (proposing a guidelines system for the imposition of punitive damages); Pamela S. Karlan, Pricking the Lines: The Due Process Clause, Punitive Damages, and Criminal Punishment, 88 Minn. L. Rev. 880, 919-20 (April 2004) (noting the lack of guidance for civil juries considering claims for punitive damages).
Jonathan D. Colan is an assistant United States attorney in the Appellate Division of the U.S. Attorney’s Office for the Southern District of Florida and an adjunct professor of issues in appellate law at the University of Miami School of Law. The views expressed in this article are solely the author’s and do not represent the Department of Justice or the University of Miami School of Law.
This column is submitted on behalf of the Appellate Practice Section, Siobhan Helene Shea, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.