The reason why I write about this is because last night I ran across a law review article from a few years ago that argued a contrary premise: the procedural safeguards for the death penalty should be used to keep punitive damages proportional. The author, Jeremy Baron, makes the argument that Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), created a due process standard because of the arbitrariness of the death penalty. I have argued that a concept similar to the remittitur’s which helps keep civil damages proportional, should be used in the death penalty to help achieve more proportionality in sentences, in my paper “Correcting a Fatal Lottery.”
Also, the death penalty is currently practiced in Arizona. The state of Arizona has executed 36 people since 1976, and two alone in 2013. That places the state with the 11th most executions.
Punitive damages are a construct of civil law. Whereas the death penalty is a construct of criminal law. On the face, it does not appear that the two have much in common. Both punitive damages and the death penalty intend to punish a person for their behavior. However, there are tools for checking the proportionality of punitive damages that are not available in the death penalty.
Procedural due process can be summed up as “our fundamental guarantee of fairness.” Both Mr. Baron and I agree the most protective system for procedural due process should be applied equally across the law. We disagree as to which system provides more protection and if it is fair or not.
Punitive Damages and Remittiturs
Punitive damages are awarded when civil wrongs are egregious enough to warrant punishment through monetary damages. The precise definition of what constitutes an award of punitive damages can vary from state to state. Arizona has historically grappled with when to award punitive damages. Generally, in Arizona punitive damages can be defined as:
[Conduct] justifying punitive damages should be only those limited classes of consciously malicious or outrageous acts of misconduct where punishment and deterrence is both paramount and likely to be achieved.
— Linthicum v. Nationwide Life Ins. Co., 723 P.2d 675, 680 (Ariz. 1986).
The use of a remittitur is a powerful judicial tool to keep punitive damages proportional. In civil law, there is an ability to check against monetary damage awards that are disproportionate to the “[s]tate’s legitimate interests in punishment and deterrence.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996). When monetary awards are deemed excessive to violate the Due Process Clause of the Fourteenth Amendment, judges are allowed to reduce the award, a procedure which is called a remittitur. Then the judge has the ability to reduce the award to what she deems is appropriate. Previously, I wrote about remittiturs in the context of medical malpractice awards on this blog.
The state of Arizona has gone further and created three minimum standards to help “punitive damage procedures to meet due process standards: (1) the procedure should be bifurcated from the compensation portion of the case; (2) proof of the right to punitive damages should be by clear and convincing evidence; and (3) the maximum amount for punitive damages should be established by law.” Hawkins v. Allstate Ins. Co., 733 P.2d 1073, 1089-90 (1987); see Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 58 (1991).
Even with all of these protections to ensure due process verdicts still differ. That is because each case is unique — different facts, different suffering. It would be unfair to impose an across the board penalty. “Because reasonable people differ as to how much [a plaintiff] should be compensated for her pain,” punitive awards can and do vary. Sandretto v. Payson Healthcare Management Inc., No. 2 CA-CV 2013-0044 (Ariz. Ct. App. 2014).
First, death is a different type of punishment. One of the largest problems the death penalty has dealt with is how to apply it without acting in an arbitrary and capricious manner because the Death Penalty is reserved for the worst of the worst.
Mr. Baron suggests the seminal case Furman v. Georgia, 408 U.S. 238 (1972) (per curiam) creates a procedural due process standard that can and should be applied to punitive damages. First, let’s look at the realities of why Furman has never held that much precedential weight, even though it did effectively abolish the death penalty in the United States from 1972-1976 until newer procedural standards were deemed constitutional in Gregg v. Georgia, 428 U.S. 153 (1976) (plurality). Furman is a one paragraph, 208 word, unsigned per curiam (of the court) opinion. The per curiam opinion looked at three different death penalty cases that were in front of the Court. One defendant was charged with murder and the other two defendants for rape. Because of the range of offenses the Court found the laws of 1972 violated the Eight and Fourteenth Amendments.
There are eight separate individual opinions either concurring or dissenting opinions that take up 232 PAGES, excluding footnotes — when the per curiam opinion (the one written on behalf of the Court) is only 208 words. I have never looked to see what is the longest judicial opinion, but I would imagine this would be a frontrunner. Opinions range from arguing for the outright abolishment of the death penalty to the court did not have jurisdiction to strike down the state death penalty statutes.
In Gregg v. Georgia, 428 U.S. 153 (1976) (plurality) the Court made suggestions of what might qualify for a minimum due process that would be constitutional. “A capital sentencing scheme must. . . provide a ‘meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.’”
The Supreme Court suggested a number of procedural steps that could be taken in Gregg v. Georgia including: a system of aggravators, mitigators and meaningful appellate review. However, the Court refused to provide more than suggestions in order to leave the states to have autonomy to devise their own systems. “We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman,for each distinct system must be examined on an individual basis.”
In the end, the Supreme Court has taken a stand against arbitrary and capricious sentencing in the death penalty, but in practicality has offered little to no guidance on how to achieve it. In the alternative, the Court resorted to looking at each individual procedure a state created to determine if it met the minimum level of constitutionality or not.
Differences in Due Process
[C]apital punishment be imposed fairly, and with reasonable consistency, or not at all.
— Eddings v. Oklahoma, 455 U.S. 104, 112 (1982).
The reason why it might appear there is a heightened procedural due process in the death penalty rather than civil system is because society collectively believes it is “far worse to convict an innocent man than to let a guilty man go free.” That is why there are more protections for defendants in general in the criminal system. A defendant who is death eligible in Arizona has only three possible sentences: death, natural life, or life. Ariz. Rev. Stat. § 13-751(A). With so few options, and since a death sentence is irrevocable, all possible procedural protections should be afforded in the death penalty to ensure the sentence is the correct one.
When a procedural error is made in the criminal system it affects life, liberty and property. Alternatively, when an error is made in the civil system it affects only property.
The criminal system does not utilize a remittitur type of system for the death penalty. For example, if a jury gave someone the death penalty a judge does not have a formal power to reduce the sentence to life in prison, like a judge can reduce monetary damages through a remittitur. “[T]he Court repeatedly has emphasized that procedural due process rules are shaped by the risk of error inherent in the truth-finding process.” There cannot be any more risk than potentially a wrong decision in a death penalty case. This is why remittiturs should be applied to the death penalty. And why defendants in the death penalty should have every procedural protection available to them.
 Jeremy C. Baron, The Monstrous Heresy of Punitive Damages: A Comparison to the Death Penalty And Suggestions For Reform, 159 U. Pa. L. Rev. 853.
 Number of Executions by State and Region Since 1976, Death Penalty Information Center, http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976 (last visited Mar. 31, 2014).
 Punitive damages may also be referred to as exemplary damages. They are synonymous terms. In this blog post I use punitive damages. However, the reader should not when reading court cases or secondary materials cited in this blog post, the term exemplary damages may also be used.
 Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 589 (1972) (Marshall, J., dissenting).
 For simplicity’s sake, I am going to focus the discussion on Arizona law. The law of the death penalty varies too much from state to state to comprehensively discuss it in this blog post. See Robert J. Smith, The Geography of the Death Penalty and its Ramifications, 92 B.U. L. Rev. 227.
 “Only when an award can fairly be categorized as ‘grossly excessive’ in relation to [the State’s legitimate interests in punishment and deterrence] does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996). The idea of excessive damages potentially violating the Due Process clause can be traced back to: Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 276 (1989) (stating “There is some authority in our opinions for the view that the Due Process Clause places outer limits on the size of a civil damages award made pursuant to a statutory scheme.”).
 Bifurcation is the act of separating the trial into two parts. In civil law the first part of the trial would be to find if the defendant should be held liable. If the jury makes a determination in favor of liability then the jury can determine how much damages to award, including punitive damages. Bifurcation works similarly in death penalty trials. The first part of the trial the jury is asked to find guilt or innocence. If guilt is determined, then the jury decides if the death penalty is appropriate.
 Gregg v. Georgia, 428 U.S. 153, 188 (1976) (plurality).
 Zant v. Stephens, 462 U.S. 862, 877 (1983). (holding “[A]n aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.”).
 Godfrey v. Georgia, 446 U.S. 420, 427-28 (1980) (quoting Furman v. Georgia, 408 U.S. 238, 313 (1972)) (White, J., concurring); see also Lowenfeld v. Phelps, 484 U.S. 231, 244 (1988).
 Gregg v. Georgia, 428 U.S. 153, 191-94 (1976) (plurality).
 Gregg v. Georgia, 428 U.S. 153, 195 (1976) (plurality).
 In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring).
 Carey v. Piphus, 435 U.S. 247, 259 (1978) (internal quotation marks omitted).