The Yale Law Journal

January-February 2015

The Psychology of Punishment and the Puzzle of Why Tortfeasor Death Defeats Liability for Punitive Damages

Nearly every jurisdiction that allows for the recovery of noncompensatory punitive damages conceives of them as serving two main purposes: (1) punishing outrageous conduct and (2) deterring its future occurrence.1 The deterrent function of punitive damages operates both to deter the defendant from reoffending—an objective known as “specific deterrence”—and to deter others from committing similar tortious acts—“general deterrence.”2 The general deterrence rationale dates back to the first cases to impose punitive damages in the United States,3 and a majority of jurisdictions have embraced general deterrence as the primary justification or one of several primary justifications for punitive damages.4

Simultaneously, a large majority of jurisdictions and the Restatement of Torts disallow punitive damages recoveries following the death of the tortfeasor.5 Courts’ stated rationale for this rule of nonsurvivability is that neither of the two primary aims of punitive damages—punishment or deterrence—is served when the defendant dies before damages can be imposed.6 This rationale is correct as applied to punishment and specific deterrence, since neither can operate on a deceased person. Yet the aim of general deterrence is not necessarily defeated by the death of the defendant. Indeed, this Comment argues that if punitive damages imposed against living defendants serve general deterrence, then so do punitive damages imposed on the estates of deceased tortfeasors. The stated justification for abandoning punitive damages upon the tortfeasor’s death therefore seems unconvincing, since one of the two primary purposes of these damages remains operative in the posthumous context. In making this argument, this Comment focuses on individual, non-corporate tort defendants, though in the Conclusion it draws on the corporate context to highlight recent punitive damages jurisprudence that suggests possible difficulties with the general deterrence rationale.

This Comment advances a novel explanation for the rule of nonsurvivability, one that does not rely on the deterrence rationale. Rather, this Comment focuses on the psychology of punishment. It argues that punitive damages lose some of their appeal when leached of their retributivist content because, research in the field of moral psychology suggests, preventing future misconduct by other potential wrongdoers is not as psychologically satisfying as seeing the individual wrongdoer receive her just deserts. There is thus little satisfaction to be found in imposing punitive damages posthumously. In addition, many courts express aversion to the idea of punishing the tortfeasor’s innocent heirs for the misdeeds of the decedent. This reluctance, the Comment proposes, further underscores punitive damages’ association with retribution as distinct from deterrence.

Part I of this Comment argues that, contrary to the prevailing justification put forth by courts embracing the nonsurvivability rule, posthumous punitive damages do advance general deterrence. Part II offers an alternative explanation for the nonsurvivability rule, one that relies on a psychological understanding of what motivates punishment. Part III concludes with a brief discussion of relevant considerations based on recent Supreme Court cases dealing with punitive damages in the corporate context.

I. the general deterrent effect of punitive damages when the tortfeasor has died

Courts embracing the nonsurvivability rule have stated that the deterrent effect of punitive awards is watered down or becomes speculative when the deceased wrongdoer’s estate is held liable instead of the wrongdoer herself.7 In this Part, however, I argue that under the prevailing logic of deterrence, posthumous punitive damages should actually serve general deterrence.

Consider the deterrent message broadcast to potential tortfeasors when punitive damages are imposed against a deceased tortfeasor’s estate, as happens under the regime adopted by the small minority of jurisdictions eschewing the nonsurvivability rule.8 Under this minority rule, potential future tortfeasors are put on notice that if they commit a similar tort and die, then their estate will pay punitive damages. But future tortfeasors also gain a sense of what will happen if they commit a similar tort and survive: they will be personally liable for punitive damages.9 In this way, the deterrent message communicated by the minority rule is substantially the same as the deterrent message communicated in typical punitive damage cases, in which damages are assessed against a living defendant. In both situations, potential tortfeasors learn that if they commit similar misconduct and survive, they will face personal liability for punitive damages. Consequently, the general deterrent effect of punitive damages does not seem weakened as a result of the tortfeasor’s death.

In comparison, consider the relatively feeble deterrent message communicated by the nonsurvivability regime adopted by the majority of jurisdictions and recommended by the Restatement of Torts. Whether a potential future tortfeasor expects to live or die after committing a tort, the majority rule provides less deterrence than the minority rule. To the potential wrongdoer who expects to survive following the tort,10 the minority rule can use posthumous punitive damages to send a clear signal that the misconduct will trigger enhanced liability. The majority rule, on the other hand, does not reach the question whether punitive damages are warranted and therefore does not deter to the same extent potential tortfeasors who expect to live.11 For the wrongdoer who expects to die before punitive damages can be assessed, neither rule creates the expectation of personal liability. But only under the majority rule is a potential wrongdoer assured that her estate will be spared punitive damages. Of course, in the extreme case of an entirely self-interested potential tortfeasor who expects to die prior to judgment and is concerned only with her personal liability, punitive damages will provide equally ineffective deterrence under either rule. For the potential tortfeasor who cares about the future wellbeing of her family, however, the minority rule improves upon the majority nonsurvivability rule by holding her estate liable.12 Therefore, under any set of circumstances, a regime that imposes punitive damages posthumously will deter at least as well as, and frequently better than, a regime that does not.

Why, then, do courts insist that punitive damages do not deter when the tortfeasor is deceased? One possible answer is that courts focus solely on specific deterrence, which clearly is thwarted by the death of the tortfeasor. Yet, in most jurisdictions, courts hold that general deterrence is one of the primary aims of punitive damages.13 Moreover, most courts defend the nonsurvivability rule by pointing to a rationale other than thwarted specific deterrence: that the general deterrent effect of a punitive award is frustrated when the paying party (that is, the tortfeasor’s estate) is innocent of wrongdoing.14 A commentator has elaborated the reasoning behind this position as follows: “The punishment of an innocent actor will have no positive effect on potential wrongdoers. Indeed, they may develop a contemptuous attitude, feeling that they may commit egregious acts for which innocent others will bear the punishment.”15

Yet this ordinarily sensible argument—that penalties must be inflicted upon the guilty, not the innocent, in order to deter future wrongdoing by others—does not justify the nonsurvivability rule. While judges have argued that “deterrence requires a perception by others that the tortfeasor is being punished,”16 it seems more accurate to say that “deterrence requires a perception by others that they will be punished if they engage in similar misconduct.” This latter message can be conveyed by posthumous punitive damages, as long as potential future tortfeasors expect to live after committing the tort.17 Under most circumstances, then, the aim of general deterrence can be served by assessing punitive damages against the tortfeasor’s estate.

II. an alternative explanation for the nonsurvivability rule

A. A Psychological Account of the Nonsurvivability Rule

I have argued that, contrary to the prevailing justification for the nonsurvivability rule,18 awarding posthumous punitive damages deters potential tortfeasors. Why, then, do the majority of jurisdictions abandon punitive damages when the tortfeasor has died, even though one of their main stated rationales endures?

I propose the following account. Courts use punitive damages in part to seek retribution against the wrongdoer. When the defendant’s death thwarts retributive aims—that is, when a remedy cannot offer the satisfaction of seeing the despicable wrongdoer saddled with an enormous judgment—there is diminished appetite to impose punitive damages, even though the general deterrence rationale remains strong.19 Overall, then, the nonsurvivability rule can be understood as a manifestation of the weight of our retributive motivations, as contrasted with our desire to deter similar misconduct by other potential wrongdoers.

Recent discoveries in the field of moral psychology support this interpretation. Studies of punishment intuitions provide converging evidence that decision makers penalize reprehensible conduct primarily on the basis of retribution and largely ignore deterrence-relevant considerations, such as the probability that such misconduct will be detected or whether the sanction is made public.20 This holds true even for decision makers who believe their judgments should be and are directed primarily at preventing future misconduct.21 Furthermore, studies have found that decision makers prioritize retribution over social benefit more generally. Commentators call this phenomenon an “outrage heuristic”: punishment decisions are rooted in a simple rule that the severity of the penalty should correspond to the outrageousness of the conduct.22 This heuristic appears to govern punishment judgments even when it leads to worse consequences overall. For instance, in one study, research participants were equally willing to impose a severe penalty on a company that had marketed unsafe birth control pills when they were told that a high penalty would provide an incentive for the company to make safer products as when they were told that a high penalty would make the company halt production altogether, ensuring that the only birth control available to consumers would be even less safe products.23 Respondents’ preferred penalties in this case seemed insensitive to whether the effects of punishment would be positive or negative for future consumers; they appeared to have been swayed primarily by the outrageousness of the company’s past behavior.24

Furthermore, research findings suggest that not all social benefits of penalization are considered psychologically equal. Rather, researchers find that people seek a certain connection between the punishable wrongdoing and the social benefit brought about by the penalty.25 For example, study participants evaluating a scenario in which a manufacturing company had dumped hazardous waste into a landfill were largely not satisfied with a penalty requiring the company to clean up waste produced by a different company; they preferred that the company clean up its own waste, even when the other company’s waste posed far greater danger to human health and the cost of cleanup was the same.26 In other words, even when substantially the same penalty could effect a greater social benefit, many individuals were not satisfied when this social benefit appeared disconnected from the wrongdoing.

These research findings support the claim that punitive damages are less psychologically satisfying when their sole function is to prevent harm by other potential tortfeasors, rather than to punish the specific wrongdoer who has transgressed. Courts may find it less appealing to impose punitive damages on the wrongdoer’s innocent heirs, even if doing so would accomplish the same general deterrence as imposing punitive damages on the wrongdoer herself (had she survived). I have argued that this is because the two pathways to deterrence are not psychologically equivalent. Assessing punitive damages against the innocent heirs lacks the requisite clear connection between the penalty and the social benefit, thereby reducing the psychological appeal of penalization.

Taken together, this body of research suggests that the psychology of punishment can provide a plausible alternative explanation for the nonsurvivability rule—one that does not rely on the implausible claim that posthumous punitive damages fail to serve general deterrence.27

B. Punishing Heirs Innocent of Wrongdoing

I have suggested that the predominance of the desire to seek retribution provides a plausible explanation for the nonsurvivability rule, and that the desire to effect general deterrence is less salient than prevailing rationales for punitive damages28 would imply. One could propose an alternative account: that courts refuse to award posthumous punitive damages despite recognizing their general deterrent effect, because imposing punitive damages on innocent parties is intolerable.29 Indeed, courts have raised the concern that assessing damages against a tortfeasor’s heirs would constitute unacceptable vicarious punishment.30 For example, dissenting judges in the rare cases that allow posthumous punitive damages have written that “[t]he court has succeeded only in punishing the innocent heirs of the deceased, a result reminiscent of the feudal doctrine of corruption of blood”31 and that “our society does not punish the innocent for the wrongdoing of another.”32

It is not entirely clear, however, in what sense posthumous punitive damages “punish” heirs. These punitive damages leave the heirs no worse off financially than they would have been had the defendant survived to face judgment herself.33 After all, had a tortfeasor survived and paid the punitive damages while still alive, the value of her estate would have been reduced by the same amount assessed posthumously against her heirs. Why should the heirs receive an undeserved windfall merely because the defendant happened to die before punitive damages could be assessed? A deceased tortfeasor’s heirs are not entitled to their unjust enrichment.34

One might respond that even if the heirs are not punished materially, they are punished symbolically. That is, even if the heirs are made no worse off financially than they deserve to be, the gesture of imposing punitive damages communicates censure and thus constitutes unacceptable punishment of the innocent. This argument would explain why jurisdictions that disallow punitive damages often permit recovery of compensatory damages against deceased tortfeasors’ estates.35 Perhaps forcing the heirs to pay compensatory damages to the victim of the decedent’s misconduct does not express rebuke of the heirs, whereas forcing them to pay punitive damages does.

But why must punitive damages express rebuke of the party who ultimately writes the check? Perhaps punitive damages could carry other expressive content, such as affirmation of the worth of the victim injured by the wrongful conduct or reassertion of the community norms that repudiate such conduct.36 The view that punitive damages necessarily communicate contempt for the liable party is consistent with the “outrage heuristic”: the idea that penalties generally vent anger at the wrongdoer.37 To courts that associate punitive damages with outrage, the prospect of imposing punitive damages against the heirs of a deceased wrongdoer may seem like an ill-considered displacement of anger—a burden placed on the innocent due to frustration that the guilty are unavailable for punishment.38 This reading would suggest that one plausible reason why courts refuse to impose posthumous punitive damages is that punitive damages are so thoroughly associated with contempt that it feels unseemly to visit them upon the innocent, whatever their deterrent effect. This account would provide additional support for the view that the general deterrent function is less salient than the stated dual-purpose justification for punitive damages39 would imply.

Conclusion: A Shift Away From Deterrence?

I have argued that general deterrence considerations cannot explain the nonsurvivability rule as well as courts have supposed and that retribution plays a larger role in the imposition of punitive damages than is generally recognized. As the psychological literature on punishment suggests, decisions regarding penalization are often motivated in significant part by outrage at the wrongdoer.

This psychological account is difficult to square with the purported dual-purpose rationale for punitive damages. Indeed, the fragility of the deterrence rationale has not gone unnoticed, at least in the corporate context. In a string of cases from BMW of North America, Inc. v. Gore40 in 1996 to State Farm Mutual Automobile Insurance Co. v. Campbell41 in 2003, the Supreme Court has emphasized the primacy of the retribution rationale for punitive damages, holding that the reprehensibility of the defendant’s conduct is the first and “[p]erhaps the most important” constitutional guidepost in determining the reasonableness of a punitive damages award.42 The deterrence argument—that large penalties are required to deter corporate defendants from profitable or difficult-to-observe tortious conduct—is considered insufficient to justify punitive awards. Rather, the Court has held that due process requires penalties to be imposed in proportion to the plaintiffs’ harm.43 This development has not stopped states from continuing to propound a dual-purpose approach to punitive damages, but it has, in the corporate context, imposed some outer limits on the reach of the deterrence rationale.44

Overall, the Supreme Court’s move away from the deterrence rationale45 is in line with this Comment’s skepticism about the capacity of deterrent aims to explain our courts’ practices surrounding punitive damages. When it comes to explaining the nonsurvivability rule, at least, the psychology of punishment provides a plausible alternative to the logic of deterrence.