Monday, April 14, 2003

If You Were a Corporation, We'd Treat You Better

I hadn't seen some of the discussion comparing the U.S. Supreme Court's decisions in the "three strikes" cases (Ewing and Andrade) with the punitive damages case (State Farm) in actual newsprint. In State Farm, the Court refused to let a state court consider what a corporation did in other situations. Of course, "three strikes" laws are explicitly designed to consider what a person did in other situations (and for which they presumably have been punished already).

It's the Sandra Day O'Connor view of the world, I guess: If people incorporated themselves, they'd have more constitutional rights.

Judicial Class Warfare

East Valley Tribune, Apr. 13, 2003

There’s a difference when liberals and conservatives engage in class warfare: Conservatives play for keeps.

The U.S. Supreme Court just signed with this “it’s money that matters” philosophy. First, in March, the court ruled twice that the constitution lets states impose throw-away-the-key sentences, even for minor crimes, on repeat offenders.

In Ewing v. California, a felon with two prior non-violent convictions committed a third felony, stealing golf clubs valued at $1,200. As Ewing’s “third strike,” he got 25 years to life in prison. In Lockyer v. Andrade, another crook with two prior convictions stole videotapes worth $153, and got 50 years without parole.

The Supreme Court decided these sentences weren’t too harsh or disproportionate for repeat criminals, even non-violent ones. Apparently, the constitution says 50 years in prison, without the possibility of parole, is just fine for a $153 crime.

After Ewing and Andrade, you’d think that if a state wants to have really long prison sentences, it also could have really big civil penalties, too. Wrong. Last week, in State Farm v. Campbell, the court overturned a punitive damages award as so excessive, so disproportionate, that it violated the 14th Amendment.

The State Farm award was huge -- $145 million in punitive damages compared to actual damages of only $1 million. The court declared that the 145:1 ratio violated due process, implying that anything greater than 10:1 was unconstitutional. In Ewing and Andrade, the constitution said nothing about a 50-year sentence for a $153 theft. But apparently money gets more constitutional protections than liberty.

By the State Farm standard, either the Supreme Court valued a year of Andrade’s life at about three bucks, or else corporations just get that much more judicial solicitude than people.

Sure, Ewing and Andrade are petty thieves, in every sense. They got caught, convicted, and should pay for each crime. But if a third theft may mean a 50-year sentence, why do corporations deserve searching judicial concern about fundamental fairness?

As Justice Kennedy wrote, when reviewing a judgment against a corporation, “courts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm.” But when it’s about people (yes, even criminals are people), neither standard applies.

Both Sam Heldman and Nathan Newman wrote about these decisions, and neither could detect a principled basis to give corporations greater constitutional rights than individuals. If anything, the Eighth Amendment’s prohibition of “cruel and unusual punishment” provides a strong textual basis for deciding Ewing and Andrade the opposite way. There’s nothing in the text of the 14th Amendment to justify federal constitutional review of excessive state court punitive damages awards on the grounds of fundamental fairness.

But you won’t hear from those conservatives who demand that courts stop legislating and stick to the words of the constitution, because in State Farm, they got the result they wanted.

This corporations-matter-more-than-people philosophy has swept the country. We’re cutting taxes on capital but raising them on labor. Businesses have our blessing to lobby for tax breaks and contracts, but if parents with disabled kids want to fight for their programs, they’re just some special interest.

The Goldwater Institute can raise more than half its money from nine contributors, each giving more than $100,000 in tax-deductible dollars and who undoubtedly get back far more than that in tax breaks and pet legislation, and it’s a respected think tank. Scottsdale firefighters can decide they need to organize to protect their lives, pensions, and community, and they’re a grubby union.

Sure, I believe corporations deserve due process and fundamental fairness. My problems is that I think actual people do, too. Just a dreamer, I guess.

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