Revenge and Punitive Damage Awards (article)

Francis Bacon declared revenge to be “a kind of wild justice, which the more Man’s nature runs to, the more ought the law to weed it out.” (Essay IV: Of Revenge, in Richard Whately, ed., Bacon’s Essays: With Annotations, 1857, p. 46) Vengeance can be commonly defined as the infliction of harm in return for perceived injury or insult, or as simply “getting back at” another person. Although many psychologists assume that revenge is a source of motivation for human aggression, researchers have devoted little energy to understanding vengeance as such. The contemporary American civil legal system rejects revenge as an acceptable motivation; however, early punitive damage awards were explicitly vengeful, and revenge continues to drive punitive awards. The following materials briefly explore the nature of revenge and retribution in the United States, the modern functions of punitive damage awards, and the history of punitive awards before evaluating the psychological and historical relationships between vengeance and contemporary punitive damages.

Revenge has occupied a prominent role in early American history. For example, even well into the 19th century the United States struggled to eradicate the prevalence of fatal duels for the sake of revenge. In the pursuit of a fair and civilized system of law, Americans have become less accepting of vengeance in the past 150 years, and this decreased acceptance, along with increased presence and ability of law enforcement, is associated with the dramatic and continual decrease in the rate of violent crime through the last century and a half of American history.

Vengeance remains more persistent in some subcultures within the United States, and comprehension of these differences may contribute to the general understanding of the psychology of revenge. Richard E. Nisbett and Dov Cohen, Culture of Honor: The Psychology of Violence in the South (1996), suggest that willingness to respond violently to threats may function as an adaptive trait in herding economies in which protection of personally owned animals is critical to survival. During the European settlement of the Americas, the Northern sections of the United States were settled primarily by farmers, and the regions that became the Confederate South were occupied largely by herding peoples. Nisbett and Cohen believe that the effects of these settlement differences between European-Americans persist into the present. For example, the rates of violent crime are similar for African-Americans throughout the United States, but the rates of gun ownership and argument-related murders are much higher for European-Americans in the South than for European-Americans in other parts of the United States. The differences are greatest in small agricultural towns, where the argument-related murder rate is three to four times higher in the South than the North. Such differences illuminate some of the historical and cultural foundations of revenge as well as the legal ramifications of vengeful attitudes, and the modern criminal and civil legal systems continue to struggle to constrain revenge throughout American society.

Americans seek justice and retribution through civil law, and while “justice is a legitimate concept in the modern code of civilized behavior … vengeance is not.” (Susan Jacoby, Wild Justice: The Evolution of Revenge, 1983, p. 1) Retribution is viewed as reasonable and is most often used as a systematic and rational deterrent against future negative actions. Revenge, however, is by nature personal and may be irrational. Retribution also differs from revenge in that retribution is usually limited in its degree and is most often a response designed to return equal injury to the offending individual. Vengeance frequently involves an escalation of damage beyond the original injury and, unlike retribution, is often performed for the purpose of bringing personal relief to the offended individual. The stated retributive function of the law may lessen but does not eliminate impulses toward vengeance from the civil legal system.

Although the legal wording varies from state to state, punitive damages are generally assessed only in cases in which the defendant’s behavior was malicious, willful, wanton, oppressive, or outrageous. Most legal scholars focus on two main functions of punitive damages. First, punitive damages punish the defendant for wrongdoing. Second, punitive damages deter the defendant from future inappropriate behavior. Not only is the defendant deterred from such actions, other companies or individuals may also be deterred from similar actions if there is a significant possibility of punitive damage awards. Some scholars identify three other functions of punitive damages. In addition to punishment and deterrence, punitive dam-

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ages educate the defendant about what constitutes inappropriate behavior, and punitive damage awards may also help enforce the law. Finally and most controversially, punitive damages may function “to provide retribution to the victim of an aggravated wrong … [and] to allow a person injured by the wanton misconduct of another to vent his [or her] outrage by extracting from the wrongdoer a judicial fine.” (David G. Owen, “A Punitive Damages Overview: Functions, Problems, and Reform,” Villanova Law Review, 1994, Vol. 39, p. 375) Even though the contemporary legal system sanctions only retribution and not revenge, the retributive functions of punitive awards are difficult to distinguish from vengeance.

Punitive damage awards have a long and colorful history. Precursors to modern concepts of punitive damages exist even in some of the earliest legal codes. Awards that exceed the degree of actual injury are found as early as the Babylonian Code of Hammurabi in 2000 B.C.E. Other examples appear in the Hittite law around 1400 B.C.E. and the Hindu Code of Manu dated at 200 B.C.E. Although scholarly disagreement exists over whether or not Roman law provided punitive damages for some crimes, Roman law as presented in The Twelve Tables around 450 B.C.E. contains requirements of multiple damages with the explicit goal of deterring the wealthy from wanton misconduct, and later Roman codes also include multiple damages for these purposes.

Punitive damages are also firmly entrenched in the Judeo-Christian tradition. Both the Old Testament and the New Testament of the Bible provide guidelines and examples of punitive awards for various acts. (The Holy Bible: New International Version, 1985) The Old Testament requires payment above and beyond compensation for the purposes of punishment and deterrence of future wrongdoing. Exodus 22:1 states, “If a man steals an ox or a sheep and slaughters it or sells it, he must pay back five head of cattle for the ox and four sheep for the sheep.” Exodus 22:4 continues, “…if the stolen animal is found alive in [the thief’s] possession—whether ox or donkey or sheep—[the thief] must pay back double.” The penalties described above are further increased in other texts. Proverbs 6:30-31 requires the payment of seven times the value of stolen goods. In relation to other crimes, Deuteronomy 22:13-19 describes punitive damages that must be paid for slander, and Deuteronomy 22:28-29 requires punitive damages of 50 shekels of silver for sexually assaulting a virgin not pledged to be married (although the man must now marry the rape victim, and “he can never divorce as long as he lives”). Punitive damages are not limited to the Old Testament. For example, the Gospel of Luke reports that Jesus showed approval of those who are willing to pay four times the value of stolen goods (Luke 19:8-9). The Judeo-Christian tradition provides the legal and moral foundations for the formal rise of punitive damages in English and American common law.

In 1763, an English judge ordered “exemplary damages” to be paid by the government above and beyond actual damages as punishment for illegal search and seizure and as a deterrent against future actions. (James B. Sales & Kenneth B. Cole, “Punitive Damages: A Relic that Has Outlived Its Origins,” Vanderbilt Law Review, 1984, Vol. 37, p. 1120) The “English courts employed the remedy from that point on to punish and deter the misuse of wealth and power that threatened the eighteenth-century English social order.” (Michael Rustad & Thomas Koenig, “The Historical Continuity of Punitive Damages Awards: Reforming the Tort Reformers,” The American University Law Review, 1993, Vol. 42, pp. 1289-1290) Even though the primary aims of this particular damage award were punishment and deterrence, legal scholars of the day believed that such damages were an acceptable and legal form of personal retaliation preferable to vengeance sought by private individuals. Punitive damages came to the United States in the 18th century. The South Carolina Supreme Court awarded personal “vindictive damages” in 1784, and, in 1791, a New Jersey court explicitly used punitive damages to deter future wrongdoing. (“Historical Continuity,” pp. 1290-1291) Sales and Cole, “Punitive Damages,” however, maintain that the first case of punitive damages in the United States was decided in Vermont in 1873. Despite disagreements about dates, scholars agree that the early American courts focused punitive damages on cases involving “willful and wanton indignities” (“Historical Continuity,” p. 1291), in cases of a defendant acting with “malice, oppression, or gross fraud,” and when a personal insult has been rendered and the plaintiff requires compensation for “humiliation, wounded dignity … and embarrassment” (“Punitive Damages,” p. 1121). Early awards were clearly vengeful in nature.

Despite changes in legal functions of punitive damage awards from their conception to the present, they serve as a means for revenge. Juries

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assess punitive damages above and beyond compensation for the plaintiff’s injuries. Juries do not receive guidance for determining punitive damages, and their decisions may not be based on rationality as much as on personal feelings against the defendant. Though some legal scholars argue that “punitive damage awards may have a healing effect on the victim beyond that which compensatory damages would effect, [it must be noted that] this is the language of revenge.” (Tamar Frankel, “Lessons from the Past: Revenge Yesterday and Today,” Boston University Law Review, 1996, Vol. 76, p. 89) Motivations for vengeance persist from earlier human history into the present, and, despite increased legal constraints and the American ideal of a civilized, lawful, and rational legal system, punitive damage awards too often function as a tool for revenge. The wording of punitive damage law is insufficient to challenge the deep historical, cultural, and theological roots of vengeance. While the professed missions of the civil legal system regarding personal revenge are clear, the practical uses of the system are not. Punitive damages remain unable to escape their historical roots in human vengeance.

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