Did you have a merry Christmas this year? Exxon Mobil Corporation certainly did. The 9th Circuit Court of Appeals just gave it a present worth about $2 billion dollars. What did you get in your stocking?

     In an opinion handed down on December 22, 2006, the Ninth Circuit decided that it would violate Exxon Mobil’s constitutional right of due process if it had to pay more than $2.5 billion dollars in punitive damages in the civil case arising out of the Exxon-Valdez oil spill. Since the punitive damages judgment being appealed was for $4.5 billion, that amounts to a $2 billion gift to Exxon Mobil.

     If you read the 63-page decision and dissent, you will find some fancy slicing and dicing and parsing of language.

     The basis for the Ninth Circuit’s decision is the idea that the due process clause of the United States Bill of Rights requires that there be some proportionality between the nature of the wrongful conduct and the size of the punishment. In other words, the punishment should fit the crime.

     That is a fine notion, in theory. In this particular case, I do not agree that the $4.5 billion dollar judgment is out of proportion to the nature of the wrongful conduct committed by Exxon. The dissenting opinion by Judge Browning does a good job of explaining why the larger judgment did not violate due process even under existing legal precedent.

     What you will not find in the decision is a frank discussion of the differences between the ways that individual criminal defendants are treated by the law, compared with the way that large corporate criminals are treated. Corporations are entitled to proportionality between the nature of their wrongful conduct, and their punishment. Individuals are not.

     The courts have consistently rejected these proportionality arguments when they have been raised by individual criminal defendants. If the due process clause requires that the punishment fit the crime, why can a state send a criminal defendant to jail for life without parole for non-violently stealing less than a hundred dollars of merchandise? Criminals convicted under repeat offender statutes have raised these very types of proportionality arguments, and have repeatedly lost. So corporate wrongdoers get protections that individual wrongdoers do not get.

     There are good reasons why corporations should have less constitutional rights than individuals, and not more. Corporations are artificial entities that are chartered by the state. They are not “born equal” and are not “endowed with inalienable rights.” They should only have the rights that we the people are willing to give them. For now, however, the courts have decided that they get greater rights than we do.

     This is not really the fault of the Ninth Circuit. It is the U.S. Supreme Court that decided to grant proportionality limits on the punishments for corporations sued for punitive damages, and not impose those limits on the punishments of individuals convicted of a crime. The Ninth Circuit has to follow those precedents.

     While Exxon Mobil and other corporations undoubtedly have some slick lawyers, we the people should be insisting that the Constitution does not give corporations greater rights than we have. I have some crude language in mind for the justices who have held otherwise.

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