Punitive Damages- End- Run Around the Constitution?

[The Ryan]

A man vandalizes a public building, doing $100 worth of damage. The city in which it occurs has an ordinance providing that anyone who vandalizes public property must pay restitution and a $1000 fine.

Situation A:
The city prosecutes the man under the statute, seeking a total of $1100. Because it is a criminal prosecution, they must prove guilt beyond a reasonable doubt, provide a public defender, reveal all evidence they collect, allow him to refuse to testify, not question him unless he allows it, etc.

Situation B:
The city sues him for $100, plus asks for $1000 in punitve damages. Because it is a civil case, they can force him to testify, force him to give depositions, not provide a public defender, and at the end of it all they only have to provide a preponderance of evidence.

Isn't Situation B the same as Situation A, except without the constitutional protections? It seems to me that civil cases are supposed to be about making the plaintiff whole. Criminal cases are about deterrance. That's the difference between them. Using civil cases to provide deterrance allows anyone to play DA, without the constitutional safeguards, just as long as they're just asking for fines, not jail time. Shouldn't any seeking of punitive measures be consired criminal prosecution, and incur the constitutional limitations thereof?

[sailor]

I agree that punitive damages are an abomination for several reasons, including what you just said. They are a punishment without due process required for punishments.

Forfeiture laws are another abomination for the same reason.

[minty green]

It seems to me that civil cases are supposed to be about making the plaintiff whole. Criminal cases are about deterrance. That's the difference between them.

False dilemma.

[El Zagna]

IANAL so... you know.

In Situation A (the ciminal case) the guy is also looking at a criminal record that will follow him throughout his life. There is also the possibility of jail time even if it's just for the time it takes to call his lawyer.

[Jay Belanger]

Originally posted by minty green
False dilemma.

Could you explain this some more? I just read the web page you referenced, and it doesn't seem to fit the situation.
The OP didn't say that either one thing or the other had to be the case, which seems to be what false dilemma is about.

[Dogface]

Civil Cases are not about "making the plaintiff whole". Criminal cases are not about "deterrance". Civil Cases are part of the Common Law, descended of Low Justice. Criminal Cases are part of the Code, descended of High Justice. The Civil case addresses injury of tort while the Criminal addresses lese majeste to some greater or lesser degree.

The problem is that our current system permits the state to file a civil case. In reality, the state should only be permitted to file criminal cases and levy criminal fines. This would require rewriting some aspects of law to make certain currently "civil" infractions actually criminal, but I could live with that.

Let us take an example of a homicide:

The criminal charge is one of murder or manslaughter. This is the crime against the state, against the authority of the sovereign (be that sovereign a king or "the people" represented by their elected officials). The status of the victim or the victim's family ought to be irrelevant. Killing another person without just cause has been defined by Code as a crime. Thus, it is prosecuted.

The civil dispute is one of "wrongful death". A tort has been created between the perpetrator and the heirs of the victim. This essentially creates a matter of indebtedness. A person is usually held responsible if he destroys anothers property, a death-related tort extends this concept.

In essence, the criminal case is meant to restore the injured honor of the sovereign against the vile dog who dared question its authority. The Civil case is meant to end the matter on a personal level. Ultimately, it is based on a theory of law that presumes that individual humans have value distinct from merely being underlings of the sovereign. If one believes that we all really are and ought to be mere slaves of the state machine, one will reject this principle, of course.

[Hamlet]

Originally posted by Dogface
[b]The problem is that our current system permits the state to file a civil case. In reality, the state should only be permitted to file criminal cases and levy criminal fines. This would require rewriting some aspects of law to make certain currently "civil" infractions actually criminal, but I could live with that.

Why should the State never be allowed to file a civil suit?

[minty green]

Originally posted by Jay Belanger
Could you explain this some more?

Certainly. Ryan incorrectly claimed that civil law is about A, while criminal law is about B. In reality, there is nothing that excludes B from civil law, nor C, D, and E. Hence, false dilemma.

[IzzyR]

This is absolute nonsense. The fact that someone says that is not a false dilemna. If someone says (incorrectly) that one option precludes the other it is a logical error. Not if he merely says it happens to be so.

You appear to have made a logical error known as the "Failure to Understand What the Other Guy is Saying Fallacy". Or possibly some other error.

[sailor]

I do not see there is any reason to stop the government from civil litigation. It is the *nature* of the case which should define it as civil or penal, not who is the plaintiff.

A civil case seeks remedy for a tort suffered. It seeks compensatory damages. If I have suffered a wrong I want to be restored to the position I was in and I should be compensated for the actual damages suffered. It does not matter whether I am an individual or a corporation, even a government body.

But a penal case is to punish someone for a wrong he has committed against the whole of society. The fine should go to the state, not to any individual's pockets.

Both government and individuals should be able to be plaintiffs in civil and penal cases but the different nature of both should be clear and the due process adjusted accordingly.

[SuaSponte]

Civil cases, both those involving punitive damages and those only involving compensatory damages, have always been about deterrence, not just making the victim whole. Civil compensatory damages deter parties from breaching contracts, acting negligently, failing to make upgrades necessary for safety, etc. If you cannot profit from your breach of a contract or your negligent actions by the threat of a civil claim, you are deterrred from doing so.

One of the reasons punitive damages developed was that, in some instances, compensatory damages are an insufficient deterrent. It may well be that it is cheaper for a party to continue to act in a negligent manner, because the cost of compensatory damages are less than the cost of acting reasonably. Punitive damages (at least in theory) bridge that gap.

Sua

[David Simmons]

Originally posted by SuaSponte
It may well be that it is cheaper for a party to continue to act in a negligent manner, because the cost of compensatory damages are less than the cost of acting reasonably. Punitive damages (at least in theory) bridge that gap.

Sua

Didn't Ford Motor Co. internal memos show that the company execs considered the relative costs to the company of fixing the Pinto fuel tank vs. paying for damages in case of fire? And they decided it was cheaper to pay the damages.

I think most cases of jury awards of what seem to be exhorbitant punitive damages are because the defendant, ususally a corporation and its officers, have pissed the jury off by their actions. As in the Ford case, or the Johns-Manville case, or the cigarette company cases, and on and on. The jury seems to be to be saying, "They think it's cheaper to pay damages than not kill people? We'll show 'em just how wrong they are!"

[sailor]

Sua, you are explaining how things *are* and I am arguing they should not be like that. Compensatory damages are of civil nature and should be subject to rules of civil litigation. Punitive damages are punishment in nature and should be subject to rules of penal process. If someone deserves to be punished, then let us punish him, but he should have all the protections of due process for a penal case and the proceeds of the fine should go to the state, not to some individual's pocket.

[The Ryan]

Originally posted by Dogface
Civil Cases are not about "making the plaintiff whole". Criminal cases are not about "deterrance". Civil Cases are part of the Common Law, descended of Low Justice. Criminal Cases are part of the Code, descended of High Justice. The Civil case addresses injury of tort while the Criminal addresses lese majeste to some greater or lesser degree.

Are you saying that no civil cases are based on statute? And what is the difference between tort and "making whole"?

The civil dispute is one of "wrongful death". A tort has been created between the perpetrator and the heirs of the victim. This essentially creates a matter of indebtedness.

That is what I mean when I referred to the concept of "making whole"; the plaintiff receives whis is owed to him.

SuaSponte

Civil cases, both those involving punitive damages and those only involving compensatory damages, have always been about deterrence, not just making the victim whole. Civil compensatory damages deter parties from breaching contracts, acting negligently, failing to make upgrades necessary for safety, etc. If you cannot profit from your breach of a contract or your negligent actions by the threat of a civil claim, you are deterrred from doing so.

I think that you are unclear on the concept of deterrence. If one can, at worst, be deprived of the profit that one unfairly obtained, that is hardly deterrence. While some people may not take actions because of the civil liabilities, that is not the purpose of civil cases.

One of the reasons punitive damages developed was that, in some instances, compensatory damages are an insufficient deterrent. It may well be that it is cheaper for a party to continue to act in a negligent manner, because the cost of compensatory damages are less than the cost of acting reasonably. Punitive damages (at least in theory) bridge that gap.

But why does that gap need to be bridged? If I develop a new procedure for building cars that saves $10 per car, but results on a .01% chance of making the car (worth $20,000) break down within a month. Then anyone who has their car break down can sue me for $20,000. On each car, I'll lose an average of $2, but save $10. A net profit of $8. Looks like I should go ahead. Now, on what basis should there be punitive damages to bridge that $8 gap? Don't I deserve to keep that $8 for developing a process that saves $8 more than it costs?

[Mtgman]

Originally posted by The Ryan
Don't I deserve to keep that $8 for developing a process that saves $8 more than it costs?

No. You're offloading the costs of replacing those cars and the pain and headache of dealing with the defective vehicles(not to mention the increased risk to life, limb, and loved ones) onto the customer. Juries, who are made up of consumers, tend to resent this offloading of costs onto their peers. As such, they punish, with punitive damages, the entities who do it.

sailor, I agree with you for most situations, especially in a civil suit against an individual, but I think that rule leaves too much wiggle room for the corporate "persons" in borderline situations where they can't quite prove guilt to a criminal standard of evidence. Pinning down the motivation and actions of a nebulous entity like the corporate "person" is much more difficult than prosecuting an individual. I'm not sure I want to extend full due process protection to corporate "entities". They are only persons in certain aspects and I don't favor granting them more privileges of personhood.

Enjoy,
Steven

[lucwarm]

Originally posted by The Ryan
A man vandalizes a public building, doing $100 worth of damage. The city in which it occurs has an ordinance providing that anyone who vandalizes public property must pay restitution and a $1000 fine.

Situation A:
The city prosecutes the man under the statute, seeking a total of $1100. Because it is a criminal prosecution, they must prove guilt beyond a reasonable doubt, provide a public defender, reveal all evidence they collect, allow him to refuse to testify, not question him unless he allows it, etc.

I'm not an expert on criminal law, but I would guess that if one is accused of violating an ordinance with no threat of jail time, one is not constitutionally entitled to a jury trial or a public defender. Just speculating though.

I do think that there is something a little troubling about a governmental entity suing a citizen for punitive damages.

[David Simmons]

Originally posted by The Ryan
A man vandalizes a public building, doing $100 worth of damage. The city in which it occurs has an ordinance providing that anyone who vandalizes public property must pay restitution and a $1000 fine.

Situation A:
The city prosecutes the man under the statute, seeking a total of $1100. Because it is a criminal prosecution, they must prove guilt beyond a reasonable doubt, provide a public defender, reveal all evidence they collect, allow him to refuse to testify, not question him unless he allows it, etc.

Situation B:
The city sues him for $100, plus asks for $1000 in punitve damages. Because it is a civil case, they can force him to testify, force him to give depositions, not provide a public defender, and at the end of it all they only have to provide a preponderance of evidence.

Just for the record, can you cite actual cases where govenments have brought a civil lawsuit vs. criminal prosecutions, or is this strictly hypothetical?

[Northern Piper]

Originally posted by Dogface
Civil Cases are not about "making the plaintiff whole". Criminal cases are not about "deterrance". Civil Cases are part of the Common Law, descended of Low Justice. Criminal Cases are part of the Code, descended of High Justice. The Civil case addresses injury of tort while the Criminal addresses lese majeste to some greater or lesser degree.

I've never heard of this distinction between High and Low Justice before, nor your opposition of the Common Law to "the Code". Care to elaborate on your meaning?

Originally posted by Dogface
The problem is that our current system permits the state to file a civil case. In reality, the state should only be permitted to file criminal cases and levy criminal fines. This would require rewriting some aspects of law to make certain currently "civil" infractions actually criminal, but I could live with that.

So if I enter into a contract with the Government for the provision of goods, and then fail to deliver, the only option for the Government is to prosecute me for criminal breach of contract? Yet if I enter into the same contract with a private party and breach it in the same way, it falls to the civil courts? Why should there be such a drastic difference depending on whether I'm contracting with government or a private party? Why would you require government to be limited to the most drastic remedy, instead of having the same range of options as a private party? I'm afraid I don't follow.

[The Ryan]

Originally posted by Mtgman
No. You're offloading the costs of replacing those cars and the pain and headache of dealing with the defective vehicles(not to mention the increased risk to life, limb, and loved ones) onto the customer.

Even if you think that these costs are legitimately my responsibility, that wouldn't justify punitive damages. Say you think that the customer suffers $1000 worth of damages in dealing with a defective car. Then the rational thing to do would be to add that to the judgement. Then I would still be making an average of $7.90 per car. Am I not justified in keeping that extra $7.90 for myself?

David SImons

Just for the record, can you cite actual cases where govenments have brought a civil lawsuit vs. criminal prosecutions, or is this strictly hypothetical?

It is a hypothetical, however I am sure that there have been instances in which a government agency had a choice between civil or criminal action, and chose civil.

Recent events, however, have made me think that the greatest danger perhaps does not come from the government itself using civil suits as a constitutional loophole, but in ceding its punitive powers to private groups, who are then free to penalize others without fear of constitutional limitations. For instance, the tobacco and gun industries are facing what are in essence criminal charges, with no crimes alleged nor any of the protections afforded criminal defendants.

More worrisome, alleged music swappers are facing fines of $150,000 per song. I think that it's quite obvious that the music industry does not suffer losses within even a few orders of magnitude of $150,000. So clearly this is purely punitive in nature. The music industry has bought off the federal government. More precisely, they have bought the right to prosecute people they don't like, and to do so without the limitations found in the Constitution. If the music industry thinks that someone is violating copyright laws, they should call up the DA and ask that criminal charges be brought. The current situation is one of privatizing the criminal justice system, with private entities choosing who is prosecuted, paying for the gathering of evidence, and receiving the spoils of victory. When I see the RIAA making a mockery of the Constitution like this, copyright violation seems like a quite trivial offense in comparison.

[Mtgman]

Again, offloading of costs onto the consumer without their express foreknowledge, consent, and probably a nice little discount to offset the potential costs is something that the people of the US feel a company should be punished for. If you want to make a million cars and say, up front, 10,000 cars out of this milion cars will have severe breakdowns, probably to the point of unusability, within a month, and the public is aware of the defects, then you may have a better case. Even then the people reserve the right to tell you not to market such shoddy vehicles because they increase the risk of accidents or other problems. If you do all this clandestinely and market the cars without the explicit statements, then punishment for deceiving the public may be imposed.

Offloading of costs without an explicit understanding and acceptance of the costs by the receiving party is a very poor business practice and one which has, rightly IMHO, earned companies punititave damages. I do agree that Punititave damages should probably go to the state instead of the individual, beyond a certain level of course. The person harmed has a right to some sort of retribution for the trust which was violated by the party found at fault.

Punitive damages are punishment for doing a bad thing. Making a higher profit is not a bad thing in and of itself. Making a profit by clandestinely increasing the costs and risks to the consumer using your product is a bad thing. It is breech of contract. The customer has reasonable expectations of a certain quality in your product. If you make a decision which would affect the quality of your product but still continue to market it as if the defect introduced by the change did not exist, then you deserve to be punished.

Cost shifting with foreknowledge and agreement - pretty much fine and dandy. Expect to shell out discounts to get people to accept the additional costs you're shifting onto them.
Cost shfiting without foreknowledge and agreement - punitive damages. Nobody likes being lied to, and it is time for you to get your mouth washed out with soap.

In any event, the RIAA is not getting punitive damages. They are getting Statutory Damages. Different thing, different rules.

Enjoy,
Steven

[The Ryan]

Originally posted by Mtgman
Again, offloading of costs onto the consumer without their express foreknowledge, consent, and probably a nice little discount to offset the potential costs is something that the people of the US feel a company should be punished for.

How am I offloading costs? If the customer suffers $20,000 in damages because his car breaks down, I pay him $20,000. If he suffers $21,000 because his car breaks down and he it somehow costs him $1000 to go get another one, then I pay him $21,000. He pays no costs; they are all paid by me.

If you go to restaurant and you order a steak, and you get chicken instead, do you ask that the steak be replaced with chicken, or do you ask that it be replaced, and that you be paid punitive damages? What if the restaurant hired an inexperienced waiter, knowing that he would make mistakes, but figuring that the cost of the meals sent back would be less than the difference in wages? Must businesses take every precaution to avoid mistakes, even if the cost of the mistake is less than the remedy?

In any event, the RIAA is not getting punitive damages. They are getting Statutory Damages. Different thing, different rules.

I did not say that they are receiving punitive damages; I said that they are receiving damages of a punitive nature. Your own cite agrees: "Statutory damages are meant to send a message and to 'sting' or make it hurt!" You can call this whatever you want, but the only essential difference is nomenclature.

[pravnik]

Originally posted by The Ryan
Isn't Situation B the same as Situation A, except without the constitutional protections? It seems to me that civil cases are supposed to be about making the plaintiff whole. Criminal cases are about deterrance. That's the difference between them. Using civil cases to provide deterrance allows anyone to play DA, without the constitutional safeguards, just as long as they're just asking for fines, not jail time. Shouldn't any seeking of punitive measures be consired criminal prosecution, and incur the constitutional limitations thereof?

The problem with the argument is you're assuming that there are constitutional limitations on fines and punishments in criminal cases, but not on punitive damages in civil cases. That's not the case.

Punitive damages aren't awarded just because the plaintiff asks for them in his complaint. Actual damages are what is necessary to make the aggrieved party whole; punitives are only warranted in a situation where the tortfeasor has engaged in "outrageous, malicious, or otherwise morally culpable conduct" makes them necessary to punish and deter. Special emphasis is placed on the principle that punitive damages may not be disproportionally greater than the gravity and severity of the misconduct in issue and the injury sustained, and the imposition of "grossly excessive" punitive damages on a tortfeasor violates the Due Process Clause of the Fourteenth Amendment. BMW of N. Am, Inc. v. Gore, 517 U.S. 559 (1996).

The hypothetical just couldn't happen. No competent judge is going to say that punitive damages assessed against a private citizen amounting ten times actual damages for an action involving the moral culpability of a criminal misdeameanor are constitutionally permissable.

[The Ryan]

Originally posted by pravnik
The problem with the argument is you're assuming that there are constitutional limitations on fines and punishments in criminal cases, but not on punitive damages in civil cases. That's not the case.

No, I'm aware that civil cases have their own limitations. The criminal limitations, however, don't apply to them.

Actual damages are what is necessary to make the aggrieved party whole; punitives are only warranted in a situation where the tortfeasor has engaged in "outrageous, malicious, or otherwise morally culpable conduct" makes them necessary to punish and deter.

Isn't "outrageous, malicious, or otherwise morally culpable conduct" another way of saying "an act which is a crime, or, if there is no law against it, should be illegal"? (That's another issue: to seek punitive damages, need there be a specific law broken?) And isn't seeking punishment for criminal acts properly handled by the criminal justice system?

The hypothetical just couldn't happen. No competent judge is going to say that punitive damages assessed against a private citizen amounting ten times actual damages for an action involving the moral culpability of a criminal misdeameanor are constitutionally permissable.

I am quite certain that there are cases in which a judge has assesed $1 in actual damages, and considerably more in punitive damages. In the infamous McD coffee lawsuit, actual damages were $200,000. Punitive damages were $2.7M. In a recent tobacco suit, actual damages were $5.5M. Punitive damages were $3 billion. Granted, those two were reduced on appeal, but it shows that it's not inconceivable.