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Punitive Compensation Tulsa Law Review Volume 51 Issue 1 Summer 2015 Punitive Compensation Cortney E. Lollar Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Cortney E. Lollar, Punitive Compensation, 51 Tulsa L. Rev. 99 (2015). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol51/iss1/3 This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Lollar: Punitive Compensation PUNITIVE COMPENSATION Cortney E. Lollar* Criminal restitution is a core component of punishment. In its current form, this remedy rarely serves restitution’s traditional aim of disgorging a defendant’s ill-gotten gains. Instead, courts use this monetary award not only to compensate crime victims for intangible losses, but also to punish the defendant for the moral blameworthiness of her criminal action. Because the remedy does not fit into the definition of what most consider “restitution,” this Article advocates for the adoption of a new, additional designation for this prototypically punitive remedy: punitive compensation. Unlike with restitution, courts measure punitive compensation by a victim’s losses, not a defendant’s unlawful gains. Punitive compensation acknowledges the critical element of moral blameworthiness pre- sent in the current remedy. Given this component of moral blameworthiness, this Article concludes the jury should determine how much compensation to impose on a particular criminal defendant. The jury is the preferable fact-finder both because jurors represent the conscience of the community, and because the Sixth Amendment jury trial right com- pels this result. Nevertheless, many scholars and legislators remain reluctant to permit juries to determine the financial award in a particular criminal case. Courts and lawmak- ers share a common misperception that juries make arbitrary, erratic, and irrational de- cisions, especially in the context of deciding criminal punishments and punitive damages, both of which overlap conceptually with punitive compensation. In debunking this narra- tive, this Article relies on empirical studies comparing judge and jury decision-making and concludes that juries are the more fitting fact-finder to determine the amount of puni- tive compensation to impose in a given case. Although anchoring biases, difficulties in predicting the duration and degree of a crime victim’s future emotional response, and poorly written jury instructions challenge juries, each of these impediments can be coun- teracted through thoughtful and conscientious systemic responses. * Assistant Professor, University of Kentucky College of Law. Thanks to Albertina Antognini, Joshua Barnette, William Berry, Jennifer Bird-Pollan, Samantha Buckingham, Nina Chernoff, James Donovan, Joshua Douglas, Andrew Ferguson, Brian Frye, Nicole Huberfeld, Vida Johnson, Wayne Logan, Donald J. Lollar, Janet Moore, Yolanda Vázquez, Sarah Welling, and Andrew K. Woods for their insightful thoughts on early drafts. My gratitude to Andrew Kull and Andrew Ferguson for pushing me to create a new term for “criminal restitu- tion,” Robert Kuehn for the initial idea for this Article, Travers Manley for thorough and broad-ranging research assistance and Franklin Runge for his help in tracking down sources. This Article was the beneficiary of numer- ous helpful ideas at the Developing Ideas Conference at the University of Kentucky College of Law, the Univer- sity of Cincinnati and University of Kentucky Colleges of Law Joint Junior Faculty Workshop, and Scholarship Panel at the PDS in the Legal Academy Symposium. 99 Published by TU Law Digital Commons, 2015 1 Tulsa Law Review, Vol. 51 [2015], Iss. 1, Art. 3 100 TULSA LAW REVIEW [Vol. 51:99 I. INTRODUCTION Criminal courts impose “restitution” as punishment. Both the manner in which courts impose criminal “restitution” and the implications of failing to pay it illustrate the remedy’s increasingly punitive character.1 Unlike restitution proper, what is called “resti- tution” in criminal proceedings usually is compensation to victims, not the disgorgement of unlawful gains or unjust enrichment. In fact, criminal “restitution” rarely involves dis- gorgement or even tangible gain to the defendant; it often contemplates only compensation for victim losses. Through “restitution,” courts order criminal defendants to compensate a victim’s tangible and intangible, current and future losses, without any clear instruction as to how to calculate those losses. The broadly conceived “restitution” in the criminal con- text now requires criminal defendants to make monetary amends to crime victims by pay- ing for any losses those victims attribute to the commission of the crime. Rather than pre- venting defendants from obtaining an unjust enrichment, criminal “restitution” primarily aims to make the victim “whole.” The consequences of failing to pay criminal “restitution” mirror those of other criminal punishments. Once a court imposes “restitution” as part of a criminal sentence, a defendant’s failure to pay it results in the same collateral consequences that attach to other criminal sentences, including continued disenfranchisement, preclusion from running for office, disqualification from jury service, suspension of one’s driver’s license, and even further incarceration. In fact, criminal defendants often end up incarcerated for a longer period of time due to a failure to pay a restitution obligation than for their original sen- tence.2 Although criminal “restitution” certainly has restorative aims, increasingly, the pu- nitive nature of the remedy eclipses those equitable purposes. Consequently, the term “restitution” no longer fits the remedy regularly being imposed in criminal cases; it is a misnomer. This Article advocates recognizing the dis- tinction between restitution and this markedly different remedy by dividing what is cur- rently termed criminal “restitution” into two distinct remedies: (1) restitution, a remedy whose aim remains restorative, and (2) “punitive compensation,” a separate remedy with dual aims of compensating the victim and punishing the defendant. Restitution remains a primarily civil remedy that corrects an unjust enrichment by requiring the disgorgement of a defendant’s unlawful gains, whereas the newly minted “punitive compensation” co- vers the majority of “restitution” awards judges currently issue in criminal cases. Unlike restitution, “punitive compensation” acknowledges the moral blameworthiness at the core of the regularly utilized criminal remedy. “Punitive compensation” recognizes that courts impose this remedy largely in an attempt to address the moral harm caused by a criminal defendant’s action, while also compensating a victim’s intangible losses. In identifying this distinct remedy as punitive compensation, this Article acknowl- edges that the remedy is, in fact, a punishment, thereby raising the question of the appro- priate fact-finder to determine a punitive compensation amount. This Article concludes that juries should determine the appropriate amount of punitive compensation a defendant 1. See Cortney E. Lollar, What Is Criminal Restitution?, 100 IOWA L. REV. 93 (2014). 2. Beth A. Colgan, Reviving the Excessive Fines Clause, 102 CALIF. L. REV. 277, 291 (2014). https://digitalcommons.law.utulsa.edu/tlr/vol51/iss1/3 2 Lollar: Punitive Compensation 2015] PUNITIVE COMPENSATION 101 must pay. As an initial matter, the Constitution compels this result. The Supreme Court’s Sixth Amendment jurisprudence recognizes that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”3 In Southern Union Co. v. United States, one of the most recent cases to elucidate the contours of the jury trial right, the Court found Sixth Amendment protections applicable to criminal fines.4 As such, any fact that increases the maximum amount of a criminal fine must be proven to a jury beyond a reasonable doubt. Applying the same logic results in the undeniable conclusion that the Sixth Amendment also should apply to punitive compensation, a monetary penalty paid to victims instead of the government. Although practitioners and scholars have reached this conclusion, the Supreme Court has yet to address the issue.5 Not only does the Constitution compel this result, jurors, as community representa- tives, are in the best position to determine the proper monetary sanction for a violation of our community mores. The focus of criminal trials and guilty pleas is legal and moral guilt; the focus of criminal sentencing hearings is the appropriate manner and degree of express- ing condemnation of a person who has engaged in behavior that we, as a society, deem to be morally wrong. When we consider the punitive element present in punitive compensa- tion decisions, the jury’s role as moral compass becomes compelling. Despite the undeniable rationale for allowing juries to determine punitive compen- sation, many have questioned whether submitting this decision to a jury is a good idea. They share a common perception that jurors are prone to arbitrary and excessive judgments in both civil damage and criminal felony decisions. Many lawyers and laypeople believe that allowing juries to make this type of determination will only decrease
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