The Health Care Finance Administration (HCFA) defines fraud as the “intentional deception or misrepresentation that an individual knows to be false or does not believe to be true and makes, knowing that the deception could result in some unauthorized benefit.” Health Care Finance Administration, Medicare Definition of Fraud (visited Oct. 6, 1999) <http://www.hcfa.gov/medicare/fraud/DEFINI2.HTM>. The actual cases the government has pursued, however, have frequently extended beyond this definition. See Aussprung, L., “Fraud and Abuse,” Journal of Legal Medicine, 19 (1998): 1–63, at 1–2, 6–7 (detailing a history of the government's fraud enforcement initiatives, including the government's aggressive pursuit of cases that push the line between negligence and reckless disregard); see also Friedman, E., “A Concerned Optimist: An ‘Exit Interview’ with Bruce Vladeck, PhD,” JAMA, 281 (1999): 757–61 (Bruce Vladeck, former administrator of HCFA, admits that investigation and prosecution of teaching hospitals and hospital billing issues have been too broad).Google Scholar

See, for example, Office of Inspector General, Department of Health and Human Services, Semiannual Report, October 1, 1998–March 31, 1999 (1999), available at <http://www.hhs.gov/oig/semann/99semil.pdf> (indicating that improper payments under Medicare fee-for-service alone were estimated at $12.6 billion during fiscal year 1998, down 45 percent from fiscal year 1996) [hereinafter Semiannual Report].+(indicating+that+improper+payments+under+Medicare+fee-for-service+alone+were+estimated+at+$12.6+billion+during+fiscal+year+1998,+down+45+percent+from+fiscal+year+1996)+[hereinafter+Semiannual+Report].>Google Scholar

See West, J., “The False Claims Act: Potential Liability for Health Care Providers for Fraud and Abuse and Beyond,” Journal of Health and Hospital Law, 26 (1995): 15 (citing General Accounting Office, Health Insurance: Vulnerable Payers Lose Billions to Fraud and Abuse (Washington, D.C.: U.S. General Accounting Office, GAO/HRD-92-69, May 1992): at 1).Google Scholar

See United States v. Krizek, 7 F. Supp. 56, 60 (D.C. Cir. 1998); and Ohio Hospital Association v. Shalala, 978 F. Supp. 735, 738 (N.D. Ohio 1997).Google Scholar

See “Hospitals Call for a Halt to Hounding by Federal Fraud Investigators,” Health Legislation & Regulation Weekly, July 16, 1997 (citing the president of the American Hospital Association (AHA) commenting in a letter addressed to U.S. Attorney General Janet Reno, Department of Health and Human Services Secretary Donna Shalala, and Inspector General June Gibbs Brown); and “Doctors Also Feel the Anti-Fraud Pinch,” Health Legislation & Regulation Weekly, Aug. 20, 1997 (noting that at the annual meeting of the American Medical Association (AMA), the House of Delegates resolved to fight the government's current trend of prosecuting inadvertent billing errors).Google Scholar

See “Provider Groups Challenge Hospital Audits,” Health Legislation & Regulation Weekly, Nov. 5, 1997 (noting that the Association of American Medical Colleges, AMA, AHA, and other groups filed suit in California to enjoin the government's Physicians at Teaching Hospitals (PATH) audits); see also Ohio Hospital Association, 978 F. Supp. 735 (noting that the Ohio Hospital Association and AHA filed suit for declarative and injunctive relief to prevent the government's national hospital outpatient laboratory enforcement initiative. The case was dismissed for lack of subject matter jurisdiction).Google Scholar

Although Congress raised fines aimed at curbing health care fraud and abuse under the Civil Monetary Penalty Act in 1996 (when it passed the Health Insurance Portability and Accountability Act), today the pendulum appears to be swinging in the other direction. See Apisson, E.M., “Double Jeopardy and the Civil Monetary Penalties Dilemma: Is Hudson the Cure for Health Care Fraud and Abuse?,” Administrative Law Review, 51 (1999): 283–99, at 288. The Health Care Claims Guidance Act, proposed in 1998 and described below, indicates that Congress is currently more concerned with curbing prosecutorial excesses than fighting fraud.Google Scholar

See Health Care Claims Guidance Act, H.R. 3523, 105th Cong. (1998); see also “AHA Backs Cochran-Hollings Bill to Amend False Claims Act,” Healthcare Financial Management, 52, no. 6 (1998), available at 1998 WL 13836601 (sponsored by Sen. Thad Cochran (R. Miss.) and Sen. Ernest Hollings (D. S.C.)).Google Scholar

See H.R. 3523, 105th Cong. (1998); and “AMA Backs Cochran-Hollings Bill,” id.Google Scholar

See H.R. 3523, 105th Cong. (1998).Google Scholar

See “AMA Backs Cochran-Hollings Bill,” supra note 8.Google Scholar

See United States v. Halper, 490 U.S. 435, 449 (1989).Google Scholar

See United States v. Krizek, 7 F. Supp. 2d 56, 60 (D.C. Cir. 1998).Google Scholar

See Ohio Hospital Association v. Shalala, 978 F. Supp. 735, 742 (N.D. Ohio 1997).Google Scholar

See Aussprung, supra note 1, at 3.Google Scholar

In addition to the cases cited above, see United States v. Diamond, 657 F. Supp. 1204, 1206 (S.D.N.Y. 1987) (decrying the lack of relationship between the fine imposed and the illicit gain); see also United States v. Orleans Parish School Board, 46 F. Supp. 2d 546, 565 (E.D. La. 1999) (a nonhealth care case finding the fines imposed by the False Claims Act (FCA) excessive and reducing the per claim fine from almost $8 million to $100,000).Google Scholar

See “New DOJ/OIG Guidelines Set Limits for Fraud Investigations,” Healthcare Financial Management, 52, no. 8 (1998), available at 1998 WL 13836652 (quoting letters by Department of Justice (DOJ) Deputy Attorney Eric Holder and Inspector General June Gibbs Brown).Google Scholar

For a copy of DOJ's new guidelines, see <http://www.aha.org/grassroots/guidance.html>..' href=https://scholar.google.com/scholar?q=For+a+copy+of+DOJ's+new+guidelines,+see+.>Google Scholar

See Semiannual Report, supra note 2.Google Scholar

“The Provider Self-Disclosure Protocol,” 63 Fed. Reg. 58,399 (Oct. 30, 1998). For sector-specific model compliance plans, see, for example, 63 Fed. Reg. 8,987 (Feb. 23, 1998) (hospital compliance plan); 63 Fed. Reg. 45,076 (Aug. 24, 1998) (clinical laboratory compliance plan); 63 Fed. Reg. 42,410 (Aug. 7, 1998) (home health compliance plan); and 63 Fed. Reg. 70,138 (Dec. 18, 1998) (third-party medical billing compliance plan).Google Scholar

See “Top DOJ Official Says No Easing of Crackdown on Health Care Fraud,” 3 Health Care Fraud Report (BNA), 385 (1999).Google Scholar

See General Accounting Office, Medicare Fraud and Abuse: DOJ's Implementation of False Claims Act Guidance in National Initiatives Varies (Washington, D.C.: U.S. General Accounting Office, GAO/HEHS-99-170, Aug. 6, 1999) (citing cases involving a large number of claims being aggressively pursued based on inadvertent error, as well as other continuing problems with the DOJ's enforcement techniques).Google Scholar

See id. (reporting that fifteen state hospital associations continue to report concerns with the government's use of the FCA after issuance of the new guidelines).Google Scholar

The new guidelines, along with the General Accounting Office, report monitoring compliance is the result of a compromise between the Office of Inspector General (OIG), DOJ, and Congress. See “New DOJ/OIG Guidelines,” supra note 17. Congress agreed not to proceed with its Health Care Claims Guidance Act if OIG and DOJ were able to reform effectively their own enforcement techniques. In light of the continuing concerns, it remains to be seen whether Congress will eventually consider some legislation necessary.Google Scholar

See Few, A., “Fighting the Battle Against Health Care Fraud: Federal Enforcement Actions,” Florida Bar Journal, 72 (Apr. 1998): 34–40, at 34–35.Google Scholar

See United States v. Halper, 490 U.S. 435 (1989) (finding health care provider's potential liability of $130,000 under the FCA grossly disproportionate to the government's losses of $16,000).Google Scholar

See, for example, Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).Google Scholar

Courts and constitutional scholars have expressed concern that Congress, in response to drug trafficking and government contracting fraud, has begun circumventing traditional criminal protections by punishing conduct with civil sanctions. Congress may prefer civil sanctions because they cost less money, take less time to prosecute, and achieve a higher conviction rate because the government only needs to prove its case by a preponderance of the evidence. Courts have been somewhat uncomfortable allowing Congress to exercise this power unchecked, but they have encountered difficulty distinguishing cases in which civil sanctions do and do not warrant criminal procedural protections. See Levy, L., A License to Steal: The Forfeiture of Property (Chapel Hill: University of North Carolina Press, 1996); see also Hudson v. United States, 118 S. Ct. 488, 501 (1997) (Stevens J., concurring) (voicing concern over Congress's aggressive use of civil fines for punishment).Google Scholar

See Hudson, , 118 S. Ct. at 491–94.Google Scholar

See United States v. Bajakajian, 524 U.S. 321 (1998) (using the Excessive Fines Clause to strike down the application of a forfeiture statute as grossly disproportionate to the defendant's offense and the government's harm).Google Scholar

Although the arguments presented in this article address the health care industry, the analysis of the FCA applies to other industries that routinely submit a large number of claims to the federal government.Google Scholar

For the Civil Monetary Penalties Law, see 42 U.S.C. § 1320a-7a (1998) (establishing civil fines of $10,000 per violation and treble damages, as well as exclusion from state programs for violations described in 42 U.S.C. § 1320a-7b). For the Program Fraud Civil Remedies Act, see 31 U.S.C. §§ 3801–3812 (1998) (imposing $5,000 for false claims in addition to double damages). Both statutes only apply if DOJ decides not to proceed under the FCA. These statutes are particularly troubling because they may only require a showing of negligence.Google Scholar

See “Compliance with Laws and Regulations for Health Care Organizations,” Healthcare Financial Management, 52, no. 9 (1998), available at 1998 WL 13836719 (describing high-profile settlements for hundreds of millions of dollars).Google Scholar

See False Claims Act, 31 U.S.C. § 3729(a) (1998).Google Scholar

See Fitzgerald, T., “Health Care Providers Encounter the Civil False Claims Act,” Colorado Lawyer, Jan. 1999, 65–72, at 65; see also Pereyra-Suarez, C., “Litigation Issues in Fraud and Abuse,” Whittier Law Review, 19 (Fall 1997): 51–67, at 65 (discussing how one billing or coding error can infect thousands of claims).Google Scholar

See Few, supra note 25.Google Scholar

DOJ can issue a civil investigative demand that requires the production of documents, answers to interrogatories, and oral testimony. See 31 U.S.C. § 3733 (1998).Google Scholar

In most published cases, conduct is more flagrant, but in Cedars-Sinai Medical Center v. Shalala, 939 F. Supp. 1457 (C.D. Cal. 1996), an FCA suit was brought against 131 hospitals for noncompliance with a manual provision stating that investigational medical devices were not covered. There is concern that inadvertent noncompliance with published regulations is increasingly being used to bring FCA suits. See Hayman, R., Dissecting a Health Care Fraud Investigation (New York: Practicing Law Institute, Corporate Law and Practice Course Handbook Series, June 1999): 223–44, at 232.Google Scholar

31 U.S.C. § 3729(b) (1998).Google Scholar

For instance, SmithKline Beecham (SKB) settled a case with the federal government for $325 million. One allegation against SKB was “code jamming.” Code jamming occurs when lab personnel pick a diagnostic code for use on the claim form because they do not have a specific code for the procedure. This convenience, while perhaps objectionable, was viewed by the government as fraud. See Clarke, R., “Compliance Concerns,” Healthcare Financial Management, 52, no. 8 (1998), available at 1998 WL 13836658.Google Scholar

See Kalb, P., “Health Care Fraud and Abuse,” JAMA, 282 (1999): 1163–68; Pereyra-Suarez, supra note 35, at 63 (noting that a provider is responsible for mistakes made by a billing company if the provider gave the billing company its government provider number); see also Russo, J., “Is Contingency-Free Consulting an Endangered Species?,” Healthcare Financial Management, 53, no. 10 (1999), available at 1997 WL 19307362; United States v. Metzinger, C.A. No. 94-7520, 1995 U.S. Dist. LEXIS 6074, (E.D. Pa. 1995) (several hospitals were sued for using a revenue-maximizing consulting company whose billing practices included upcoding, unbundled, and rebundled laboratory procedures).Google Scholar

See “Compliance with Laws and Regulations for Health Care Organizations,” supra note 33 (describing the complex, ever-changing nature of health care regulations).Google Scholar

See “Hospitals Call for a Halt to Hounding by Federal Fraud Investigators,” supra note 5.Google Scholar

See General Accounting Office, Medicare: Concerns With Physicians at Teaching Hospitals (PATH) Audits (Washington, D.C.: U.S. General Accounting Office, GAO/HEHS-98-174, July 1998) (discussing audit of Dartmouth-Hitchcock Medical Center based on the number of residents criticized); and General Accounting Office, supra note 22 (describing over 100 hospitals targeted improperly based on size or without evidence of false claims).Google Scholar

See Aussprung, supra note 1.Google Scholar

See “Compliance with Laws and Regulations for Health Care Organizations,” supra note 33 (describing the financial incentive created by the FCA).Google Scholar

See General Accounting Office, supra note 22 (describing problems with some local enforcement strategies).Google Scholar

See 31 U.S.C. § 3730 (1998) (qui tam provision of the FCA).Google Scholar

See Anderson, T., “Home Health, Long-Term Care, and Other Compliance Activities,” Healthcare Financial Management, 53, no. 4 (1999), available at 1999 WL 9968033.Google Scholar

See Snyder, A., “The False Claims Act Applied to Health Care Institutions: Gearing Up for Corporate Compliance,” DePaul Journal of Health Care Law, 1 (Fall 1996): 1–54, at 16.Google Scholar

See 31 U.S.C. §3729.Google Scholar

See United States v. Halper, 490 U.S. 435, 446 (1989) (stating that the government is entitled to rough remedial justice, but that, at some point, a fine becomes grossly disproportionate to the offense).Google Scholar

In an even more extreme case, the government could have no actual damages from the 500 claims. After all, the FCA does not require that the government prove any actual damage. See Rex Trailer Co. v. United States, 350 U.S. 148 (1956). The provider would still be liable for $2.5 million in per claim charges.Google Scholar

Of course, the government may also justify the additional penalty because of increased culpability. That argument is addressed below.Google Scholar

Throughout the article, I use the term prolific offender to refer to a health care provider that faces enormous potential liability under the FCA due to the large number of claims it has submitted to the government.Google Scholar

The per offense charge was never intended to denote greater culpability; rather, Congress included it to ensure that the government would be fully compensated for its losses. The current application of the per offense charge to prolific offenders grossly exceeds its mandate. See United States ex rel. Marcus v. Hess, 317 U.S. 537, reh'g denied, 318 U.S. 799 (1943) (articulating the justification for the per offense charge). See also 132 Cong. Rec. S15054 (1986) (expressing concern that one per offense fine may impose too great a burden on some businesses).Google Scholar

If the highest per offense charge is applied, the prolific offender could face liability of $5.3 million. Reaching this conclusion, some courts have circumvented the unjust result by manipulating the number of false claims in an intellectually dishonest way. See, for example, United States v. Krizek, 7 F. Supp. 56 (D.C. Cir. 1998) (holding that claims only violate the FCA when they result in bills for service hours that exceed twenty-four hours a day, not including any hours that were billed to private insurance during that day). Although this approach may produce justice in the individual case, it does not result in a reliable precedent for other providers. After all, not all courts will disregard the plain meaning of a statute to achieve more just results. Moreover, intellectual dishonesty, while arguably necessary in some FCA cases, undermines the integrity of the judicial system.Google Scholar

See Pereyra-Suarez, supra note 35, at 65 (describing how one billing mistake can infect all claims submitted by a provider and lead to liability that would bankrupt the provider).Google Scholar

See, for example, United States v. Killough, 848 F.2d 1523 (11th Cir. 1988); and United States v. Hughes, 585 F.2d 284, 286 (7th Cir. 1978).Google Scholar

See Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).Google Scholar

See id. at 165–66.Google Scholar

Id. at 168.Google Scholar

United States v. Ward, 448 U.S. 242 (1980).Google Scholar

See id. at 242.Google Scholar

See id. at 250.Google Scholar

Id. at 251.Google Scholar

United States v. Halper, 490 U.S. 435, 438–39 (1989) (stating that fines under the FCA are civil not criminal remedies).Google Scholar

Contrast the Civil False Claims Act, 31 U.S.C. §§ 3729–3730 (1998), with the Criminal False Claims Act, 18 U.S.C. §§ 286–287 (1998).Google Scholar

See Ward, 448 U.S. at 250.Google Scholar

See id. at 251.Google Scholar

See United States v. Halper, 490 U.S. 435, 442 (1989).Google Scholar

See id.Google Scholar

See id. at 437.Google Scholar

See id. at 449.Google Scholar

See id. at 437. If the government's costs for investigation and prosecution are included, total government losses rise to $16,000—the amount that the defendant was ultimately forced to pay.Google Scholar

See id. at 449–52.Google Scholar

See Hudson v. United States, 118 S. Ct. 488, 494 (1997) (describing Halper's precedent as “unworkable”).Google Scholar

See Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767 (1994); and United States v. Ursery, 518 U.S. 267 (1996).Google Scholar

See Hudson, , 118 S. Ct. at 495 (describing the confusion created by Halper).Google Scholar

See United States v. Hughes, 585 F.2d 284 (7th Cir. 1978); United States v. Killough, 848 F.2d 1523 (11th Cir. 1988); United States v. McLeod, 721 F.2d 282 (9th Cir. 1983); but see Peterson v. Weinberger, 508 F.2d 45, 55 (5th Cir. 1975) (judges have discretion to reduce fines). See also S. Rep. 99–345, 99th Cong., 2d Sess. (1987) (“[The FCA has been amended] to raise the fixed statutory penalty from $2000 to $10,000 … the Committee reaffirms the apparent belief of the Act's initial drafters that defrauding the government is serious enough to warrant an automatic forfeiture rather than leaving final determinations with district courts, possibly resulting in discretionary nominal payments.”).Google Scholar

See. U.S. Const. amend. VIII (“Excessive bail shall not be required, no excessive fines imposed, nor cruel and unusual punishment inflicted.”). The Supreme Court has interpreted the Cruel and Unusual Punishment Clause to prohibit only punishment that is grossly disproportionate to the criminal offense. See Solem v. Helm, 463 U.S. 277, 288 (1983).Google Scholar

The Supreme Court appears poised to strike down use of the electric chair in Florida as cruel and unusual punishment because several inmates have caught fire before dying; but this extraordinary level of cruelty is required before the Court will evaluate the proportionality of a criminal sentence. Interestingly, it chose the same grossly disproportionate standard for the Excessive Fines Clause. See United States v. Bajakajian, 118 S. Ct. 2028, 2037 (1998). This certainly indicates a desire to constrain review, but the one application, in Bajakajian, appears to interpret gross disproportionality more laxly than the Court has when approaching cruel and unusual punishment.Google Scholar

See generally, Jeffries, J.C. Jr. and Stephan, P.B. III, “Defenses, Presumptions, and Burden of Proof in the Criminal Law,” Yale Law Journal, 88 (1979): 1325–1407, at 1370–80 (discussing proportionality and criminal penalties).Google Scholar

In particular, federal sentences narrowly tailor punishment to culpability and costs. Under the Sentencing Guidelines, defense attorneys can seek downward departures for cooperation, acceptance of responsibility, coercion, and so forth. Similarly, prosecutors can seek enhancements for criminals in a position of trust, in leadership roles, who injure numerous victims, or who cause a great amount of damages. This more narrowly tailored system avoids the unjust and arbitrary results that can follow from an across the board per offense fine. Although state sentencing guidelines are often not as nuanced as the federal guidelines, they are still significantly more narrowly tailored than the FCA.Google Scholar

See Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 777 n.14 (1994); and United States v. Ursery, 518 U.S. 267 n.2 (1996). Halper also failed, because it determined if criminal procedural protections were required ex post, when the government must be able to determine if criminal procedural protections are merited ex ante. Otherwise, the government could not provide the required protections. It makes little sense to establish a doctrine in which a defendant would have to wait until he was punished to determine whether the punishment was barred by double jeopardy, or would have to provide reports and information that incriminated him before the court could determine whether the right against self-incrimination should apply.Google Scholar

See Hudson v. United States, 118 S. Ct. 488, 494–95 (1997).Google Scholar

See Ursery, , 518 U.S. at 267 n.2.Google Scholar

See Hudson, , 118 S. Ct. at 491–94.Google Scholar

See id.Google Scholar

See id. at 496.Google Scholar

See id.Google Scholar

See id. at 495.Google Scholar

See id.Google Scholar

It is theoretically possible for a statute to satisfy the Kennedy–Ward test, triggering criminal procedural protections; but, as mentioned earlier, in light of the extreme deference to Congress, it is practically impossible.Google Scholar

United States v. Bajakajian, 118 S. Ct. 2028 (1998).Google Scholar

See id. at 2041.Google Scholar

See id. at 2037.Google Scholar

See id. at 2033.Google Scholar

See id. See also Austin v. United States, 509 U.S. 602, 609–10 (1993).Google Scholar

See Bajakajian, , 118 S. Ct. at 2034.Google Scholar

See id. at 2036.Google Scholar

See id. at 2037.Google Scholar

See id. at 2038.Google Scholar

See id.Google Scholar

See id. at 2039.Google Scholar

See id.Google Scholar

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One concern with this conclusion is that the Eighth Amendment has traditionally only been applied to criminal cases. Several Supreme Court cases indicate, however, that the Excessive Fines Clause applies to civil cases that involve a monetary fine if that fine is “punishment for an offense” rather than merely a remedial measure. See Austin v. United States, 509 U.S. 602, 610 (1993) (holding that even a remedial civil fine is subject to the Excessive Fines Clause if it serves “in part to punish”); and Bajakajian, 118 S. Ct. at 2033–34 (citing Austin with approval); Hudson v. United States, 118 S. Ct. 488, 495 (1997) (the Eighth Amendment protects against excessive civil fines); id. at 502 (Breyer, J., concurring) (the Court could have reached the same decision in Halper by applying the Excessive Fines Clause); Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 269–72 (1989) (describing the historical roots of the Excessive Fines Clause as including civil fines); but see id. at 262 (“Our cases long have understood [the Eighth Amendment] to apply primarily, and perhaps exclusively, to criminal prosecutions and punishments”).Google Scholar

See United States v. Halper, 490 U.S. 435, 449 (1989).Google Scholar

See Hudson, , 118 S. Ct. at 491.Google Scholar

See United States v. Lippert, 148 F.3d 974, 977 (8th Cir. 1998) (inferring from the citation to Austin in Bajakajian that Halper's reasoning, while rejected under double jeopardy analysis, remains appropriate for excessive fines analysis).Google Scholar

Compare Hudson, 118 S. Ct. at 495; United States v. Bajakajian, 118 S. Ct. 2028, 2037 (1998); and Halper, 490 U.S. at 449.Google Scholar

See Hudson, 118 S. Ct. at 494.Google Scholar

See id. at 495 (describing how the Fifth, Fourteenth, or Eighth Amendments might be more appropriate to cure the constitutional ills presented in Halper).Google Scholar

See id. at 491–94. Although this explanation appears likely, there are several cautionary notes. First, the Supreme Court's classification of the FCA sanctions as punitive in Halper is dicta, as is the Court's statement that such fines are overwhelmingly disproportional. A lower court will not be bound by this analysis, especially in light of the Court's recent repudiation of the decision. Second, it should be noted that Bajakajian never cites to Halper. This may not be significant, however, because Bajakajian cites Austin, which took its definition of a fine directly from Halper. Besides, Bajakajian arises in a very different context. Third, Bajakajian was a 5–4 decision with an unusual coalition of conservative and liberal judges. It may be difficult to present a situation in which these parties will vote together again, even if the extension is a logical one.Google Scholar

See Bajakajian, , 118 S. Ct. at 2037.Google Scholar

See Ely, J., Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980).Google Scholar

BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). The Supreme Court rejected the argument that punitive damages awards should be reviewed under the Excessive Fines Clause in Browning-Ferris. In that case, it found that the Eighth Amendment only limits “fines directly imposed by, and payable to, the government.” The Court reasoned that the framers' intent and history both indicate that the Excessive Fines Clause was written to prevent government abuse of prosecutorial power, not to constrain civil damages between private parties. See Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 266–68 (1989).Google Scholar

See BMW, 517 U.S. at 582–85.Google Scholar

See id. at 568.Google Scholar

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See Sunstein, C.R. Kahneman, D., and Schkade, D., “Assessing Punitive Damages (With Notes on Cognition and Valuation in Law),” Yale Law Journal, 107 (1998): 2071–2153 (discussing the goals of punitive damages and the procedural problems that create a need for judicial review of damages); see also Kelley, T., “Punitive Damages in Media Tort Litigation,” PLI/Pat, 523 (July 1998): 359–743 (discussing the history of punitive damages review).Google Scholar

See Polinsky, A.M. and Shavell, S., “Punitive Damages: An Economic Analysis,” Harvard Law Review, 111 (1998): 869–962 (discussing the justifications for punitive damages).CrossRefGoogle Scholar

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See Sunstein, Kahneman, , and Schkade, supra note 124, at 2074.Google Scholar

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In practice, attorneys may reach settlements with government officials that make the attorney's skills relevant and decrease the uniform application of fines; but settlements would not be reviewed under the excessive fines analysis. Therefore, factors relevant to fine settlements should not be considered in an evaluation of the ex post proportionality review.Google Scholar

See Ely, supra note 119.Google Scholar

The U.S. Constitution has no similar provision mandating that punitive damages be reviewed. Constitutional scholars debate whether the Excessive Fines Clause should have been read to include punitive damages in light of the blurring of government and private remedies at the time. See Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 286 (1989) (O'Connor, J., concurring in part and dissenting in part) (summarizing numerous articles written on the issue and analyzing the history of the Excessive Fines Clause).Google Scholar

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.Google Scholar

See Austin v. United States, 509 U.S. 602, 622–23 (1993) (the penalty must be compared with the offense).Google Scholar

See Alexander v. United States, 509 U.S. 544 (1993) (excessiveness of the forfeiture under the Eighth Amendment must be considered in light of the crime committed).Google Scholar

See Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 286 (1989); id. at 271 (describing the legal roots of the Excessive Fines Clause in the Magna Carta, which required that the amount of any amercement be proportional to the wrong); and United States v. Bajakajian, 118 S. Ct. 2028, 2036 (1998) (proportionality is the cornerstone of any constitutional inquiry under the Excessive Fines Clause).Google Scholar

See Bajakajian, , 118 S. Ct. at 2043–44 (Kennedy, J., dissenting).Google Scholar

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The legislature could increase the damages multiplier if necessary to deter malign conduct fully.Google Scholar

See United States v. Ursery, 518 U.S. 267, 282–83 (1996).Google Scholar

See Kalb, supra note 41.Google Scholar