PUNITIVE DAMAGES: A couple of naive comments, prompted by reading (probably misreading) a draft of a paper that tries to defend “punitive” damages as being “retributive.” I confess to a bias of keeping retribution in the domain of criminal law, and here’s why I think so.

Retribution, in whatever form it comes in, and there are many forms it can come in, has at least this feature (I think) – that it tries to achieve a “balance” or “leveling out” between two parties, where a crime or a wrong as upset the previous balance or level. Take two classic examples. First, there’s Herbert Morris’ theory, where the criminal gets an unfair benefit by committing a crime and this has to be negated, or leveled out, by putting an added burden on him. Things get balanced by the punishment of the criminal. Second, there’s Jean Hampton’s expressivist theory, where what is put out of wack is perception of social worth. The criminal announces, by his crime, that he thinks he’s better than another person, and this perception has to be counteracted by punishing him in some way, that is, showing that he’s not superior to the person he’s wrong.

A lot of questions, of course, remain, about how things get balanced and what exactly gets balanced. But put these to one side, because my concern is to ask what and how things get balanced out in a punitive damages case – supposing we want to make an analogy between retribution in the criminal case and the granting of punitive damages.

My sense is that punitive damages can’t serve a particularly retributive function, because they are what is paid over and above the compensatory damages – precisely those damages given to the plaintiff to put him back in the condition he was in prior to the wrong by the company. If there’s anything that counts as balancing things out, it’s these, the non-punitive damages. The punitive damages are just gravy. Whatever function they serve, it doesn’t seem to be purely retributive, at least in the sense of “retributive” I’m after now.

Next, there’s the possibility that we might want to add punitive damages to compensatory damages because the defendants have done something recklessly or intentionally wrong. On this way of looking at things, we have the compensatory damages on the one hand, which level out the purely monetary damage done to the plaintiff. On the other hand, there are the punitive damages, which are designed to “balance out” the fact of intentional (or reckless) wrongdoing. This way, the punitive damages do serve a retributive function, because they match up not with the monetary wrong, but with (let us say) the expressive wrong.

I suppose one could look at things this way, but it strikes me as a non-starter. For one, why should the punishment in this case be more money, and not jail time? Although I won’t argue it here, there’s at least a prima facie sense that you can’t simply pay your way out of punishment for a criminal wrong: money and jail time, in this way, seem incommensurable. Second, why should the punitive damages be paid to the plaintiff? If we were more strictly retributivist, we would want the money (if we agree that monetary damages are to be paid) to go into some federal fund, rather than to the victim per se. Why? Consider the analogy with criminal law. The punishment for the wrong is presumed to be not just against the individual, but against society. So the punishment represents the debt the wrongdoer has to pay to society, and not just the individual (that’s why the state gets involved, after all). We don’t think it fit punishment that the wrongdoer becomes the victim’s slave, say. Yet this seems to be what is going on in the retributivist understanding of punitive damages.

I have to same I’m almost completely innocent of the law on punitive damages. But it strikes me that the main purpose of punitive damages is deterrent, not retributive.

- posted by Chad @ Saturday, September 13, 2003