A few days after I posted a comparison between the sentences for Enron’s Jeffrey Skilling and Leandro Andrade(sentenced to fifty years for petty theft with a prior), the New York Time uses Andrade as a comparison point as well.


The Times, however, was comparing the Supreme Court’s seeming eagerness to apply the Due Process clause to limit punitive damages in civil cases for corporations to its unwillingness to use the Eighth Amendment’s prohibition against cruel and unusual punishment.


The Andrade case often makes a good comparison point, because it is such a stark and obvious example of our system of overpunishment, which is then mostly applied to the poor.  An award of $79.5 million against Phillip Morris is being heard by the Supremes next week.  From the Times:


The Eighth Amendment expressly bars “cruel and unusual punishments,” which might reasonably be interpreted to cover imprisoning a man from age 37 to 87 for stealing $153.53. The companies claimed only that the punitive damages awards violated their “due process” rights, a far greater textual stretch.


On the issue of what is “excessive” punishment, Mr. Andrade’s claim is also stronger. It is hard to see how it is excessive to make Philip Morris, whose market capitalization is $166 billion, pay a mere $79.5 million for “extraordinarily reprehensive” and lethal conduct, but not excessive to make Mr. Andrade spend what is likely to be the entire second half of his life in prison for a petty theft.


It may very well be that some jury’s overpunish corporations with excessive civil verdicts, even in cases where they deliberately hid the deadliness of their products.  But certainly some of that Tort Reform outrage against “plaintiff’s lawyers” for excessive verdicts can somehow be channeled into a movement for Sentencing Reform.