# Browning-Ferris Industries of Vermont Inc. v. Kelco Disposal Inc./Concurrence O'Connor

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Brennan O'Connor
Justice O'CONNOR, with whom Justice STEVENS joins, concurring in part and dissenting in part.
Awards of punitive damages are skyrocketing. As recently as a decade ago, the largest award of punitive damages affirmed by an appellate court in a products liability case was $250,000. See Owen, Punitive Damages in Products Liability Litigation, 74 Mich.L.Rev. 1257, 1329-1332 (1976). Since then, awards more than 30 times as high have been sustained on appeal. See Ford Motor Co. v. Durrill, 714 S.W.2d 329 (Tex.App.1986) ($10 million); Ford Motor Co. v. Stubblefield, 171 Ga.App. 331, 319 S.E.2d 470 (1984) ($8 million); Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo.1984) ($6.2 million). The threat of such enormous awards has a detrimental effect on the research and development of new products. Some manufacturers of prescription drugs, for example, have decided that it is better to avoid uncertain liability than to introduce a new pill or vaccine into the market. See, e.g., Brief for Pharmaceutical Manufacturers Association et al. as Amici Curiae 5-23. Similarly, designers of airplanes and motor vehicles have been forced to abandon new projects for fear of lawsuits that can often lead to awards of punitive damages. See generally P. Huber, Liability: The Legal Revolution and Its Consequences 152-171 (1988).
The trend toward multimillion dollar awards of punitive damages is exemplified by this case. A Vermont jury found that Browning-F rris Industries, Inc. (BFI), tried to monopolize the Burlington roll-off waste disposal market and interfered with the contractual relations of Kelco Disposal, Inc. (Kelco). The jury awarded Kelco $51,000 in compensatory damages (later trebled) on the antitrust claim, and over $6 million in punitive damages. The award of punitive damages was 117 times the actual damages suffered by Kelco and far exceeds the highest reported award of punitive damages affirmed by a Vermont court. Cf. Coty v. Ramsey Associates, Inc., 149 Vt. 451, 546 A.2d 196 (punitive damages of $380,000 based on compensatory damages of $187,500), cert. denied, 487 U.S. 1236, 108 S.Ct. 2903, 101 L.Ed.2d 936 (1988).
The Court holds today that the Excessive Fines Clause of the Eighth Amendment places no limits on the amount of punitive damages that can be awarded in a suit between private parties. That result is neither compelled by history nor supported by precedent, and I therefore respectfully dissent from Part II of the Court's opinion. I do, however, agree with the Court that no due process claims-either procedural or substantive-are properly presented in this case, and that the award of punitive damages here should not be overturned as a matter of federal common law. I therefore join Parts I, III, and IV of the Court's opinion. Moreover, I share Justice BRENNAN's view, ante, at 280-282, that nothing in the Court's opinion forecloses a due process challenge to awards of punitive damages or the method by which they are imposed, and I adhere to my comments in Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 86-89, 108 S.Ct. 1645, 1654-1656, 100 L.Ed.2d 62 (1988) (opinion concurring in part and concurring in judgment), regarding the vagueness and procedural due process problems presented by juries given unbridled discretion to impose punitive damages.
* Before considering the merits of BFI's Eighth Amendment claim, two preliminary questions must be addressed. First, does the Excessive Fines Clause apply to the States through the Due Process Clause of the Fourteenth Amendment? Second, is a corporation such as BFI protected by the Excessive Fines Clause?
The award of punitive damages against BFI was based on Vermont law. See 845 F.2d 404, 409 (CA2 1988). Almost 100 years ago, the Court held that the Eighth Amendment did not apply to the States. See O'Neil v. Vermont, 144 U.S. 323, 332, 12 S.Ct. 693, 697, 36 L.Ed. 450 (1892). See also Pervear v. Commonwealth, 5 Wall. 475, 18 L.Ed. 608 (1867). But 13 years before O'Neil, the Court had applied the Eighth Amendment's ban on cruel and unusual punishments to a Territory. See Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879) (holding that execution by firing squad was not prohibited by the Eighth Amendment). In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462, 67 S.Ct. 374, 375, 91 L.Ed. 422 (1947), the Court assumed, without deciding, that the Eighth Amendment applied to the States. Any confusion created by O'Neil, Wilkerson, and Francis was eliminated in Robinson v. California, 370 U.S. 660, 666-667, 82 S.Ct. 1417, 1420-1421, 8 L.Ed.2d 758 (1962), in which the Court, albeit without discussion, reversed a state conviction for the offense of narcotics addiction as constituting cruel and unusual punishment and being repugnant to the Fourteenth Amendment. Since Robinson, the Cruel and Unusual Punishments Clause has been regularly applied to the States, most notably in the capital sentencing context. In addition, the Court has assumed that the Excessive Bail Clause of the Eighth Amendment applies to the States. See Schilb v. Kuebel, 404 U.S. 357, 365, 92 S.Ct. 479, 484, 30 L.Ed.2d 502 (1971). I see no reason to distinguish one Clause of the Eighth Amendment from another for purposes of incorporation, and would hold that the Excessive Fines Clause also applies to the States.
In the words of Chief Justice Marshall, a corporation is "an artificial being, nvisible, intangible, and existing only in contemplation of law." Dartmouth College v. Woodward, 4 Wheat. 518, 636, 4 L.Ed. 629 (1819). As such, it is not entitled to " 'purely personal' guarantees" whose " 'historic function'. . . has been limited to the protection of individuals." First National Bank of Boston v. Bellotti, 435 U.S. 765, 779, n. 14, 98 S.Ct. 1407, 1417, n. 14, 55 L.Ed.2d 707 (1978). Thus, a corporation has no Fifth Amendment privilege against self-incrimination, Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911), or right to privacy, United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950). On the other hand, a corporation has a First Amendment right to freedom of speech, Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), and cannot have its property taken without just compensation, Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). A corporation is also protected from unreasonable searches and seizures, Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), and can plead former jeopardy as a bar to a prosecution, United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). Furthermore, a corporation is entitled to due process, Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), and equal protection, Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985), of law.
Whether a particular constitutional guarantee applies to corporations "depends on the nature, history, and purpose" of the guarantee. First National Bank of Boston, supra, at 779, n. 14, 98 S.Ct., at 1417, n. 14. The payment of monetary penalties, unlike the ability to remain silent, is something that a corporation can do as an entity, and the Court has reviewed fines and monetary penalties imposed on corporations under the Fourteenth Amendment at a time when the Eighth Amendment did not apply to the States. See Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 111-112, 29 S.Ct. 220, 227, 53 L.Ed. 417 (1909). See also St. Louis I. M. & S. R. Co. v. Williams, 251 U.S. 63, 66-67, 40 S.Ct. 71, 73, 64 L.Ed. 139 (1919). If a corporation is protected by the Due Process Clause from overbearing and oppressive monetary sanctions, it is also protected from such penalties by the Excessive Fines Clause. See Whitney Stores, Inc. v. Summerford, 280 F.Supp. 406, 411 (SC) (three-judge court) (ENTERTAINING EIGHTH AMENDMENT CHALLENGE BY COrporation to fiNE for vIolation of Sunday closing laws), summarily aff'd, 393 U.S. 9, 89 S.Ct. 44, 21 L.Ed.2d 9 (1968).
Language in Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), and Ex parte Watkins, 7 Pet. 568, 8 L.Ed. 786 (1833), suggests that the entire Eighth Amendment is confined to criminal prosecutions and punishments. But as the Court correctly acknowledges, ante, at 262-263, and n. 3, that language is not dispositive here.
In Ingraham, the Court held that the Cruel and Unusual Punishments Clause of the Eighth Amendment does not apply to disciplinary corporal punishment at a public school. Because the Excessive Fines Clause was not at issue in Ingraham, the Court's statement that the "text of the [Eighth] Amendment suggests an intention to limit the power of those entrusted with the criminal-law function of government," 430 U.S., at 664, 97 S.Ct., at 1408, is not controlling. The similar statement in Ex parte Watkins, that the Eighth Amendment "is addressed to courts of the United States exercising criminal jurisdiction," 7 Pet., at 573-574, is dictum, for the Court there held only that it did not have appellate jurisdiction to entertain a challenge, by way of a writ for habeas corpus, to criminal fines imposed upon a defend nt: "[T]his Court has no appellate jurisdiction to revise the sentences of inferior courts in criminal cases; and cannot, even if the excess of the fine were apparent on the record, reverse the sentence." Id., at 574. There is another reason not to rely on or be guided by the sweeping statements in Ingraham and Ex parte Watkins. Those statements are inconsistent with the Court's application of the Excessive Bail Clause of the Eighth Amendment to civil proceedings in Carlson v. Landon, 342 U.S. 524, 544-546, 72 S.Ct. 525, 536-537, 96 L.Ed. 547 (1952) (immigration and deportation). See United States v. Salerno, 481 U.S. 739, 754, 107 S.Ct. 2095, 2105, 95 L.Ed.2d 697 (1987) (recognizing that Carlson "was a civil case"). In sum, none of the Court's precedents foreclose application of the Excessive Fines Clause to punitive damages.
The history of the Excessive Fines Clause has been thoroughly canvassed in several recent articles, all of which conclude that the Clause is applicable to punitive damages. See Boston, Punitive Damages and the Eighth Amendment: Application of the Excessive Fines Clause, 5 Cooley L.Rev. 667 (1988) (Boston); Massey, The Excessive Fines Clause and Punitive Damages: Some Lessons from History, 40 Vand.L.Rev. 1233 (1987) (Massey); Jeffries, A Comment on the Constitutionality of Punitive Damages, 72 Va.L.Rev 139 (1986) (Jeffries); Note, The Constitutionality of Punitive Damages Under the Excessive Fines Clause of the Eighth Amendment, 85 Mich.L.Rev. 1699 (1987) (Note). In my view, a chronological account of the Clause and its antecedents demonstrates that the Clause derives from limitations in English law on monetary penalties exacted in civil and criminal cases to punish and deter misconduct. History aside, this Court's cases leave no doubt that punitive damages serve the same purposes punishment and deterrence-as the criminal law, and that excessive punitive damages present precisely the evil of exorbitant monetary penalties that the Clause was designed to prevent.
The story of the Excessive Fines Clause begins in the "early days of English justice, before crime and tort were clearly distinct." Jeffries 154. Under the Saxon legal system in pre-Norman England, the victim of a wrong would, rather than seek vengeance through retaliation or "blood-feud," accept financial compensation for the injury from the wrongdoer. The wrongdoer could also be made to pay an additional sum "on the ground that every evil deed inflicts a wrong on society in general." W. McKechnie, Magna Carta 284-285 (1958) (McKechnie).
At some point after the Norman Conquest in 1066, this method of settling disputes gave way to a system in which individuals who had engaged in conduct offensive to the Crown placed themselves "in the King's mercy" so as not to have to satisfy all the monetary claims against them. Id., at 285. See generally 2 F. Pollock & F. Maitland, The History of English Law 512-516 (2d ed. 1899) (Pollock & Maitland). In order to receive clemency, these individuals were required to pay an "amercement" to the Crown, its representative, or a feudal lord. Tumey v. Ohio, 273 U.S. 510, 525, 47 S.Ct. 437, 442, 71 L.Ed. 749 (1927); Massey 1252-1253, and n. 111. But cf. R. Stringham, Magna Carta: Fountainhead of Freedom 40 (1966) (a share of the amercement went to the victim or the victim's family). Because the amercement originated at a time when there was little distinction between criminal law and tort law, it was "neither strictly a civil nor a criminal sanction." Note, at 1716. Blackstone, however, clearly thought that amercements were civil punishments. See 4 W. Blackstone, Commentaries *372 ("amercements for misbehaviour in matters of civil right"). As one commentator has noted, the "amercement was assessed most commonly as a civil sanction for wrongfully bringing or defending a civil lawsuit." Massey 1251. The list of conduct meriting amercement was voluminous: t espass, improper or false pleading, default, failure to appear, economic wrongs, torts, and crimes. See generally Beecher's Case, 8 Co.Rep. 58a, 59b-61b, 77 Eng.Rep. 559, 564-567 (Ex. 1609).
The amount of an amercement was set arbitrarily, according to the extent to which the King or his officers "chose to relax the forfeiture of all the offender's goods." Jeffries 154-155. See also Boston 725. Because of the frequency and sometimes abusive nature of amercements, Chapter 20 of Magna Carta, 9 Hen. III, ch. 14 (1225), prohibited amercements that were disproportionate to the offense or that would deprive the wrongdoer of his means of livelihood:
"A Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement; and a Merchant likewise, saving to him his Merchandise; and any other's villain than ours shall be likewise amerced, saving his wainage, if he fall into our mercy. And none of the said amerciaments shall be assessed, but by the oath of honest and lawful men of the vicinage. Earls and Barons shall not be amerced but by their Peers, and after the manner of their offence. No man of the Church shall be amerced after the quantity of his spiritual Benefice, but after his Lay-tenement, and after the quantity of his offence" (numbers omitted).
After Magna Carta, the amount of an amercement was initially set by the court. A group of the amerced party's peers would then be assembled to reduce the amercement in accordance with the party's ability to pay. McKechnie 288-289. For example, in Le Gras v. Bailiff of Bishop of Winchester, Y.B.Mich. 10 Edw. II, pl. 4 (C.P. 1316), reprinted in 52 Publications of the Selden Society 3, 5 (1934), an amercement for improper civil pleading was vacated, and the bailiff who had imposed the amercement was ordered to "take a moderate amercement proper to the magnitude and manner of that offence." See also Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839, 845-846 (1969) (Granucci) (listing other examples of amercements that were reduced or set aside).
Fines and amercements had very similar functions. Fines originated in the 13th century as voluntary sums paid to the Crown to avoid an indefinite prison sentence for a common-law crime or to avoid royal displeasure. 2 Pollock & Maitland 517; Massey 1261. The fine operated as a substitute for imprisonment. Having no actual power to impose a fine, the court would sentence the wrongdoer to prison. "To avoid imprisonment, the wrongdoer would then 'make fine' by 'voluntarily' contracting with the Crown to pay money, thereby ending the matter. The Crown gradually eliminated the voluntary nature of the fine by imposing indefinite sentences upon wrongdoers who effectively would be forced to pay the fine. Once the fine was no longer voluntary, it became the equivalent of an amercement." Note, at 1715. See also Boston 719-720. Although in theory fines were voluntary while amercements were not, the purpose of the two penalties was equivalent, and it is not surprising that in practice it became difficult to distinguish the two.
By the 17th century, fines had lost their original character of bargain and had replaced amercements as the preferred penal sanction. The word "fine" took on its modern meaning, while the word "amercement" dropped out of ordinary usage. McKechnie 293. But the nomenclature still caused some confusion. See Griesley's Case, 8 Co.Rep. 38a, 77 Eng.Rep. 530 (C.P.1609) ("fine" for refusing to serve as a constable analyzed as an "amercement"). William Shakespeare, an astute observer of English law and politics, did not distinguish between fines and amercements in the plays he wrote in the late 16th century. In Romeo and Juliet, published in 1597, Prince Escalus uses the words "amerce" and "fine" interchangeably in warning the Montagues and the Capulets not t shed any more blood on the streets of Verona:
"I have an interest in your hate's proceeding,
My blood for your rude brawls doth lie a-bleeding;
But I'll amerce you with so strong a fine,
That you shall all repent the loss of mine." Act III, scene 1, lines 186-189.
The preeminence of fines gave courts much more power, for only they could impose fines. Massey 1253. Once it was clear that Magna Carta did not apply to fines for offenses against the Crown, see John Hampden's Case, 9 State Tr. 1054, 1126 (K.B.1684), English courts during the reigns of Charles II and James II took advantage of their newly acquired power and imposed ruinous fines on wrongdoers and critics of the Crown. After James II fled England during the Glorious Revolution of 1688-1689, the House of Commons, in an attempt to end the crisis precipitated by the vacation of the throne, appointed a committee to draft articles concerning essential laws and liberties that would be presented to William of Orange. As the Court correctly notes, some of the men who made up the committee had been subjected to heavy fines by the courts of James II. See generally L. Schwoerer, The Declaration of Rights, 1689, pp. 30-33, 91-92 (1981) (Schwoerer). The committee ultimately reported 13 Articles to the House of Commons. The final draft of Article 10 provided that "excessive Baile ought not to be required, nor excessive Fines imposed, nor cruel and unusual Punishments inflicted." 1 Wm. & Mary, 2d Sess., ch. 2, 3 Stat. at Large 440, 441 (1689).
According to Blackstone, the English Bill of Rights was "only declaratory . . . of the old constitutional law." 4 W. Blackstone, Commentaries *372. See also Schwoerer 92 (excessive fines provision of Article 10 "reaffirmed ancient law"). Of course, the only prohibition on excessive monetary penalties predating Article 10 was contained in Magna Carta. "Since it incorporated the earlier prohibition against excessive amercements which could arise in civil settings-as well as other forms of punishment, [Article 10's limitation on excessive fines] cannot be limited to strictly criminal cases but extends to monetary sanctions imposed in both criminal and civil contexts." Note, at 1717. Because the word "amercement" had dropped out of ordinary usage by the late 17th century, it appears that the word "fine" in Article 10 was simply shorthand for all monetary penalties, "whether imposed by judge or jury, in both civil and criminal proceedings." Massey 1256. Indeed, three months after the adoption of the English Bill of Rights, the House of Lords reversed a fine by referring to Magna Carta, and not to Article 10. See Earl of Devonshire's Case, 11 State Tr. 1367, 1372 (H.L. 1689) (ruling that "fine" of £ 30,000 for striking another was "excessive and exorbitant, against Magna Charta, the common right of the subject, and the law of the land").
The Court argues that Chapter 20 of Magna Carta and Article 10 of the English Bill of Rights were concerned only with limiting governmental abuses of power. Because amercements and fines were paid to the Crown, the Court assumes that governmental abuses can only take place when the sovereign itself exacts a penalty. That assumption, however, simply recalls the historical accident that, prior to the mid-18th century, monetary sanctions filled the coffers of the King and his barons.
As early as 1275, with the First Statute of Westminster, double and treble damages were allowed by statute. See ante, at 274. However, "[i]t was only after the prevalence of the amercement had diminished that the cases began to report the award of punitive damages as a common law entitlement." Massey 1266. One of the first reported cases allowing punitive damages is Wilkes v. Wood, Lofft. 1, 18-19, 98 Eng.Rep. 489, 498-499 (K.B.1763): "[A] jury have it in their power to give damages for more than the injury received. Damages are designed not only as satisfaction to the injured p rson, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself." The link between the gradual disappearance of the amercement and the emergence of punitive damages provides strong historical support for applying the Excessive Fines Clause to awards of punitive damages. See Boston 728-732.
The case of Lord Townsend v. Hughes, 2 Mod. 150, 151, 86 Eng.Rep. 994, 994-995 (C.P.1677), cited by the Court, ante, at 268, 272, is not inconsistent with this understanding of history. At the time Hughes was decided, damages were understood only as compensation for injury. See T. Blount, Law-Dictionary (1670) (Blount) (unpaginated) (defining "damages" as "a recompense for what the Plaintiff or Demandant hath suffered, by means of the wrong done him by the Defendant or Tenant") (emphasis added). Hughes involved an action for slander, and the jury was told to award damages for the harm the plaintiff had sustained. The damages awarded were entirely compensatory and did not contain any punitive element whatsoever. Thus, Hughes does not stand for the proposition that Magna Carta is inapplicable to punitive damages awarded in civil cases. For the same reasons, neither do the commentaries cited by the Court differentiating between damages and amercements. See ante, at 265, n. 7, 270, n. 13. The damages referred to in those commentaries are compensatory, and not punitive, in nature. See, e.g., Introduction to the Curia Regis Rolls, 1199-1230 A.D., in 62 Publications of the Selden Society 463 (C. Flower ed. 1944) (damages "represented the loss incurred by a litigant through an unlawful act") (emphasis added). Amercements and fines were not meant to compensate the injured plaintiff, but rather to punish the wrongdoer and express society's displeasure at the improper act. Compensatory damages, even in Saxon England, had not been limited by Magna Carta, which was meant to ensure that monetary penalties, assessed in addition to compensatory sums, have some measure of proportionality.
The Court also points out that in Rookes v. Barnard, [1964] A.C. 1129, 1221-1231, Lord Devlin, in his extensive discussion of exemplary damages and decision to limit them to certain cases, did not mention either Magna Carta or the Excessive Fines Clause of the English Bill of Rights. Ante, at 273, n. 18. Although this is a small point, I think the Court is mistaken to place any reliance on the lack of citation to Magna Carta or the English Bill of Rights in Rookes. English courts today need not cite those two documents, for the principles set forth in them are now ingrained as part of the common law. See J. Holt, Magna Carta 2 (1965) ("[I]t is now possible and indeed justifiable for a lawyer to compose a general survey of the freedom of the individual in England without once referring to Magna Carta"). Indeed, English courts have not cited Magna Carta or the English Bill of Rights in cases involving the excessiveness of criminal fines. See Queen v. Asif, 82 Cr.App.R. 123 (1985) (upholding fine of £ 25,000 for fraudulent evasion of taxes); Queen v. Farenden, 6 Cr.App.R. (S) 42 (1984) (finding that fine of £ 250 for first offense of careless driving was "too heavy" and reducing it to £ 100). Moreover, Lord Devlin noted in Rookes that punitive damages could be "used against liberty. Some of the awards that juries have made in the past seem to me to amount to a greater punishment than would be likely to be incurred if the conduct were criminal. . . . I should not allow the respect which is traditionally paid to an assessment of damages by a jury to prevent me from seeing that the weapon is used without restraint." [1964] A.C., at 1227. Thus, he suggested that some limits might have to be placed on punitive damages: "It may even be that the House [of Lords] may find it necessary to . . . place some arbitrary limit on awards of damages that are made by way of punishment. Exhortations to be moderate may not be enough." Id., at 1227-1228.
There was little debate over the Eighth Amendment in the First Congress, and no discussion of the Excessive Fines Clause. Consideration of the Eighth Amendment immediately followed consideration of the Fifth Amendment. After deciding to confine the benefits of the Self-Incrimination Clause of the Fifth Amendment to criminal proceedings, the Framers turned their attention to the Eighth Amendment. There were no proposals to limit that Amendment to criminal proceedings, and the only discussion was by Mr. Smith of South Carolina and Mr. Livermore of New Hampshire, both of whom thought that the Cruel and Unusual Punishments Clause was too indefinite. See Granucci 842; Weems v. United States, 217 U.S. 349, 368-369, 30 S.Ct. 544, 549-550, 54 L.Ed. 793 (1910). Exactly what significance the silence of the Framers has in constitutional interpretation is open to debate, compare, e.g., L. Tribe, Constitutional Choices 42-44 (1985), with, e.g., Powell, Rules for Originalists, 73 Va.L.Rev. 659, 671-672 (1987), but it is not necessary to address that issue here. The Eighth Amendment was based directly on Article I, § 9, of the Virginia Declaration of Rights of 1776, which had in turn adopted verbatim the language of § 10 of the English Bill of Rights. "There can be no doubt that the Declaration of Rights guaranteed at least the liberties and privileges of Englishmen." Solem v. Helm, 463 U.S. 277, 285-286, n. 10, 103 S.Ct. 3001, 3007, n. 10, 77 L.Ed.2d 637 (1983). See also A. Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America 205-207 (1968) (Howard). If anything is apparent from the history set forth above, it is that a monetary penalty in England could be excessive, and that there is a strong link between amercements, which were assessed in civil cases, and fines. Cf. Solem, supra, at 284, n. 8, 103 S.Ct., at 3006, n. 8 (an "amercement was similar to a modern-day fine"). There is, in short, considerable historical support for application of the Excessive Fines Clause to punitive damages.
The Court, however, thinks otherwise, and emphasizes that at the time the Eighth Amendment was enacted, "the word 'fine' was understood to mean a payment to a sovereign as punishment for some offense." Ante, at 265, and n. 6. In my view, the meaning of that word was much more ambiguous than the Court is willing to concede. In defining the word "fine," some 18th-century dictionaries did not mention to whom the money was paid. See, e.g., T. Sheridan, A Dictionary of the English Language (6th ed. 1796) (unpaginated) ("a mulct [or] a pecuniary punishment"); S. Johnson, A Dictionary of the English Language (7th ed. 1785) (unpaginated) ("a mulct [or] pecuniary punishment," a "penalty," or "money paid for any exemption or liberty"). To the same effect are some 19th-century dictionaries. See, e.g., 1 C. Richardson, A New Dictionary of the English Language 796 (1839) ("any thing (as a sum of money) paid at the end, to make an end, termination or conclusion of a suit, of a prosecution"). That the word "fine" had a broader meaning in the 18th century is also illustrated by the language of § 37 of the Massachusetts Body of Liberties of 1641. That provision granted courts the authority to impose on a civil plaintiff who had instituted an improper suit "a proportionable fine to the use of the defendant, or accused person." 1 B. Schwartz, The Bill of Rights: A Documentary History 76 (1971) (emphasis added). It is noteworthy that the "fine" was payable to a private party, and not a governmental entity. Boston 714. In 1646, the Massachusetts General Court ruled that § 37 of the Body of Liberties was based directly on Chapter 20 of Magna Carta. Howard 401, 404.
The Court also finds it significant that, in the 18th and 19th centuries, "fines were assessed in criminal, rather than in private civil, actions." Ante, at 265, and n. 7. Again, in my view the Court's recitation of history is not complete. As noted above, § 37 of the Massachusetts Body of Liberties required that "fines" payable to private litigants in civil cases be proportional. Furthermore, not all 17th-century sources unequivocally linked fines with criminal proceedings. See Blount ("fine" is "sometimes an amends, pecuniary punishment, or recompence upon an offence committed against the King, and his laws, or a Lord of a Mannor") (emphasis added). Nor did all American courts in the 19th century view "fines" as exclusively criminal. The Massachusetts Supreme Judicial Court held that the word "fine" in a statute meant "forfeitures and penalties recoverable in civil actions, as well as pecuniary punishments inflicted by sentence." Hanscomb v. Russell, 77 Mass. 373, 375 (1858). It explained that "the word 'fine' has other meanings" besides pecuniary penalties "inflicted by sentence of a court in the exercise of criminal jurisdiction . . . as appears by most of the dictionaries of our language, where it is defined not only as a pecuniary punishment, but also as a forfeiture, a penalty, [etc.]" Id., at 374-375. The Iowa Supreme Court had the following to say about fines: "The terms, fine, forfeiture, and penalty, are often used loosely, and even confusedly. . . . A fine is a pecuniary penalty, and is commonly (perhaps always) to be collected by suit in some form. A 'forfeiture' is a penalty by which one loses his rights and interest in his property." Gosselink v. Campbell, 4 Iowa 296, 300 (1856) (emphasis added). Hence, around the time of the framing and enactment of the Eighth Amendment some courts and commentators believed that the word "fine" encompassed civil penalties.
In my view, the $6 million award of punitive damages imposed on BFI constitutes a fine subject to the limitations of the Eighth Amendment. In current usage, the word "fine" comprehends a forfeiture or penalty recoverable in a civil action. See Black's Law Dictionary 569 (5th ed. 1979); Webster's Third New International Dictionary 852 (1971). Not only is that understanding supported by the history set forth above, it is buttressed by this Court's precedents. Punitive damages are "private fines levied by civil juries." Electrical Workers v. Foust, 442 U.S. 42, 48, 99 S.Ct. 2121, 2125, 60 L.Ed.2d 698 (1979) (emphasis added). They are not awarded to compensate for injury, but rather to further the aims of the criminal law: " 'to punish reprehensible conduct and to deter its future occurrence.' " Bankers Life & Casualty Co., 486 U.S., at 87, 108 S.Ct., at 1655 (O'CONNOR, J., concurring in part and concurring in judgment). See also Restatement (Second) of Torts § 908(1) (1979). Their role therefore "runs counter to the normal reparative function of tort and contract remedies." K. Redden, Punitive Damages § 2.1, p. 24 (1980). The Court's cases abound with the recognition of the penal nature of punitive damages. See Tull v. United States, 481 U.S. 412, 422, and n. 7, 107 S.Ct. 1831, 1838, and n. 7, 95 L.Ed.2d 365 (1987); Memphis Community School District v. Stachura, 477 U.S. 299, 306, n. 9, 106 S.Ct. 2537, 2542, n. 9, 91 L.Ed.2d 249 (1986); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 260-261, 104 S.Ct. 615, 627-628, 78 L.Ed.2d 443 (1984) (BLACKMUN, J., dissenting); Smith v. Wade, 461 U.S. 30, 59, 103 S.Ct. 1625, 1641, 75 L.Ed.2d 632 (1983) (REHNQUIST, J., dissenting); Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-267, 101 S.Ct. 2748, 2759-2760, 69 L.Ed.2d 616 (1981); Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 82, 91 S.Ct. 1811, 1838-1839, 29 L.Ed.2d 296 (1971) (MARSHALL, J., dissenting); Lake Shore & M.S.R. Co. v. Prentice, 147 U.S. 101, 107, 13 S.Ct. 261, 263, 37 .Ed. 97 (1893).
This plethora of case law on the nature of punitive damages, it seems to me, is sufficient to find the Excessive Fines Clause applicable to the award in this case. There is, however, even more support for the applicability of the Clause. In determining whether a sanction is penal, the Court has generally looked to several factors: (1) whether it involves an affirmative disability; (2) whether it has historically been regarded as punishment; (3) whether it comes into play on a finding of scienter; (4) whether its operation will promote retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether there is an alternative purpose for it; and (7) whether it is excessive in relation to the alternative purpose assigned. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963). I agree with those commentators who have found it easy to conclude that punitive damages are penal under the Mendoza-Martinez factors. See, e.g., Grass, The Penal Dimensions of Punitive Damages, 12 Hastings L.Q. 241 (1985).
The character of a sanction imposed as punishment "is not changed by the mode in which it is inflicted, whether by a civil action or a criminal prosecution." United States v. Chouteau, 102 U.S. 603, 611, 26 L.Ed. 246 (1881). As the Court wrote only recently, "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can be explained only as also serving either retributive or deterrent purposes, is punishment." United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1902, 104 L.Ed.2d 487 (1989) (emphasis added). In order to evade the teachings of cases like Choteau and Halper, the Court determines that the Excessive Fines Clause becomes relevant only when some governmental entity is seeking to reap the benefits of a monetary sanction. Ante, at 275-276. I disagree with the Court's formalistic analysis. A governmental entity can abuse its power by allowing civil juries to impose ruinous punitive damages as a way of furthering the purposes of its criminal law. Cf. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753-2754, 73 L.Ed.2d 482 (1982). I also note that by relying so heavily on the distinction between governmental involvement and purely private suits, the Court suggests (despite its claim, ante, at 275-276, n. 21, that it leaves the question open) that the Excessive Fines Clause will place some limits on awards of punitive damages that are recovered by a governmental entity. See, e.g., Fla.Stat. § 768.73(2)(b) (1987) (60% of any award of punitive damages is payable to the State).
As far as I know, the applicability of a provision of the Constitution has never depended on the vagaries of state or federal law, and in Missouri Pacific R. Co. v. Humes, 115 U.S. 512, 6 S.Ct. 110, 29 L.Ed. 463 (1885), the Court stressed the constitutional insignificance of how a monetary sanction is administered or by whom it is recovered. Humes involved a state statute providing for double damages to any individual who suffered harm due to a railroad's failure to maintain fences and cattle guards. In holding that the double damages provision did not violate the Fourteenth Amendment, id., at 522-523, 6 S.Ct., at 113-114, the Court said:
"The additional damages being by way of punishment, . . . it is not a valid objection that the sufferer instead of the State receives them. . . . The power of the State to impose fines and penalties for a violation of its statutory requirements is coeval with government; and the mode in which they shall be enforced, whether at the suit of a private party, or at the suit of the public, and what disposition shall be made of the amounts collected, are merely matters of legislative discretion."
Humes teaches that the identity of the recipient of a monetary penalty is irrelevant for purposes of determining the consti utional validity of the penalty. From the standpoint of the defendant who has been forced to pay an excessive monetary sanction, it hardly matters what disposition is made of the award.
The only remaining question is whether the award of over $6 million in this case is "excessive" within the meaning of the Eighth Amendment.
* Using economic analysis, some of the amici in support of BFI argue that the wealth of a defendant should not, as a constitutional matter, be taken into account in setting the amount of an award of punitive damages. See, e.g., Brief for Navistar International Transportation Corp. as Amicus Curiae 9-25. It seems to me that this argument fails because the Excessive Fines Clause is only a substantive ceiling on the amount of a monetary sanction, and not an economic primer on what factors best further the goals of punishment and deterrence. Just as the Fourteenth Amendment does not enact Herbert Spencer's Social Statics, see Lochner v. New York, 198 U.S. 45, 75, 25 S.Ct. 539, 551, 49 L.Ed. 937 (1905) (HOLMES, J., dissenting), the Eighth Amendment does not incorporate the views of the Law and Economics School. The "Constitution does not require the States to subscribe to any particular economic theory." CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 92, 107 S.Ct. 1637, 1652, 95 L.Ed.2d 67 (1987). Moreover, as a historical matter, the argument is weak indeed. First, Magna Carta only required that an amercement be proportionate and not destroy a person's livelihood. Second, Blackstone remarked that the "quantum, in particular, of pecuniary fines neither can, nor ought to be, ascertained by any invariable law. The value of money itself changes from a thousand causes; and at all events, what is ruin to one man's fortune, may be a matter of indifference to another's." 4 W. Blackstone, Commentaries *371.
Determining whether a particular award of punitive damages is excessive is not an easy task. The proportionality framework that the Court has adopted under the Cruel and Unusual Punishments Clause, however, offers some broad guidelines. See Solem, 463 U.S., at 290-292, 103 S.Ct., at 3009-3011. Cf. United States v. Busher, 817 F.2d 1409, 1415 (CA9 1987) (applying Solem factors to civil forfeiture under RICO). I would adapt the Solem framework to punitive damages in the following manner. First, the reviewing court must accord "substantial deference" to legislative judgments concerning appropriate sanctions for the conduct at issue. Second, the court should examine the gravity of the defendant's conduct and the harshness of the award of punitive damages. Third, because punitive damages are penal in nature, the court should compare the civil and criminal penalties imposed in the same jurisdiction for different types of conduct, and the civil and criminal penalties imposed by different jurisdictions for the same or similar conduct. In identifying the relevant civil penalties, the court should consider not only the amount of awards of punitive damages but also statutory civil sanctions. In identifying the relevant criminal penalties, the court should consider not only the possible monetary sanctions, but also any possible prison term.
The Court of Appeals did not think that the Excessive Fines Clause applied to awards of punitive damages, 845 F.2d, at 410, and therefore did not conduct any sort of proportionality analysis. I would remand the case to the Court of Appeals so that it could, in the first instance, apply the Solem framework set forth above and determine whether the award of over $6 million imposed on BFI violates the Excessive Fines Clause.

## Notes

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