PHILIP MORRIS USA v. WILLIAMS, personal repre sentative of ESTATE OF WILLIAMS, DECEASED

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346 OCTOBER TERM, 2006
Syllabus
PHILIP MORRIS USA v. WILLIAMS, personal repre
sentative of ESTATE OF WILLIAMS, DECEASED
certiorari to the supreme court of oregon
No. 05–1256. Argued October 31, 2006—Decided February 20, 2007
In this state negligence and deceit lawsuit, a jury found that Jesse Wil
liams’ death was caused by smoking and that petitioner Philip Morris,
which manufactured the cigarettes he favored, knowingly and falsely led
him to believe that smoking was safe. In respect to deceit, it awarded
$821,000 in compensatory damages and $79.5 million in punitive dam
ages to respondent, the personal representative of Williams’ estate.
The trial court reduced the latter award, but it was restored by the
Oregon Court of Appeals. The State Supreme Court rejected Philip
Morris’ arguments that the trial court should have instructed the jury
that it could not punish Philip Morris for injury to persons not before
the court, and that the roughly 100-to-1 ratio the $79.5 million award
bore to the compensatory damages amount indicated a “grossly exces
sive” punitive award.
Held:
1. A punitive damages award based in part on a jury’s desire to pun
ish a defendant for harming nonparties amounts to a taking of property
from the defendant without due process. Pp. 352–357.
(a) While “[p]unitive damages may properly be imposed to further
a State’s legitimate interests in punishing unlawful conduct and deter
ring its repetition,” BMW of North America, Inc. v. Gore, 517 U. S. 559,
568, unless a State insists upon proper standards to cabin the jury’s
discretionary authority, its punitive damages system may deprive a de
fendant of “fair notice . . . of the severity of the penalty that a State
may impose,” id., at 574; may threaten “arbitrary punishments,” State
Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408, 416; and,
where the amounts are sufficiently large, may impose one State’s (or one
jury’s) “policy choice” upon “neighboring States” with different public
policies, BMW, supra, at 571–572. Thus, the Constitution imposes lim
its on both the procedures for awarding punitive damages and amounts
forbidden as “grossly excessive.” See Honda Motor Co. v. Oberg, 512
U. S. 415, 432. The Constitution’s procedural limitations are considered
here. Pp. 352–353.
(b) The Due Process Clause forbids a State to use a punitive dam
ages award to punish a defendant for injury inflicted on strangers to the
litigation. For one thing, a defendant threatened with punishment for

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such injury has no opportunity to defend against the charge. See Lind
sey v. Normet, 405 U. S. 56, 66. For another, permitting such punish
ment would add a near standardless dimension to the punitive damages
equation and magnify the fundamental due process concerns of this
Court’s pertinent cases—arbitrariness, uncertainty, and lack of notice.
Finally, the Court finds no authority to support using punitive damages
awards to punish a defendant for harming others. BMW, supra, at 568,
n. 11, distinguished. Respondent argues that showing harm to others
is relevant to a different part of the punitive damages constitutional
equation, namely, reprehensibility. While evidence of actual harm to
nonparties can help to show that the conduct that harmed the plaintiff
also posed a substantial risk to the general public, and so was particu
larly reprehensible, a jury may not go further and use a punitive dam
ages verdict to punish a defendant directly for harms to those nonpar
ties. Given the risks of unfairness, it is constitutionally important for
a court to provide assurance that a jury is asking the right question;
and given the risks of arbitrariness, inadequate notice, and imposing
one State’s policies on other States, it is particularly important that
States avoid procedure that unnecessarily deprives juries of proper
legal guidance. Pp. 353–355.
(c) The Oregon Supreme Court’s opinion focused on more than rep
rehensibility. In rejecting Philip Morris’ claim that the Constitution
prohibits using punitive damages to punish a defendant for harm to non
parties, it made three statements. The first—that this Court held in
State Farm only that a jury could not base an award on dissimilar acts
of a defendant—was correct, but this Court now explicitly holds that a
jury may not punish for harm to others. This Court disagrees with the
second statement—that if a jury cannot punish for the conduct, there is
no reason to consider it—since the Due Process Clause prohibits a
State’s inflicting punishment for harm to nonparties, but permits a jury
to consider such harm in determining reprehensibility. The third state
ment—that it is unclear how a jury could consider harm to nonparties
and then withhold that consideration from the punishment calculus—
raises the practical problem of how to know whether a jury punished
the defendant for causing injury to others rather than just took such
injury into account under the rubric of reprehensibility. The answer is
that state courts cannot authorize procedures that create an unreason
able and unnecessary risk of any such confusion occurring. Although
States have some flexibility in determining what kind of procedures to
implement to protect against that risk, federal constitutional law obli
gates them to provide some form of protection where the risk of misun
derstanding is a significant one. Pp. 355–357.

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348 PHILIP MORRIS USA v. WILLIAMS
Syllabus
2. Because the Oregon Supreme Court’s application of the correct
standard may lead to a new trial, or a change in the level of the punitive
damages award, this Court will not consider the question whether the
award is constitutionally “grossly excessive.” Pp. 357–358.
340 Ore. 35, 127 P. 3d 1165, vacated and remanded.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Souter, and Alito, JJ., joined. Stevens, J., post, p. 358,
and Thomas, J., post, p. 361, filed dissenting opinions. Ginsburg, J., filed
a dissenting opinion, in which Scalia and Thomas, JJ., joined, post, p. 362.
Andrew L. Frey argued the cause for petitioner. With
him on the briefs were Andrew H. Schapiro, Lauren R.
Goldman, Murray R. Garnick, Kenneth S. Geller, Evan M.
Tager, William F. Gary, and Sharon A. Rudnick.
Robert S. Peck argued the cause for respondent. With
him on the brief were Ned Miltenberg, Charles S. Tauman,
James S. Coon, Raymond F. Thomas, William A. Gaylord,
Maureen Leonard, and Kathryn H. Clarke.*
*Briefs of amici curiae urging reversal were filed for the Alliance of
Automobile Manufacturers by H. Christopher Bartolomucci and John T.
Whatley; for the American Tort Reform Association by Roy T. Englert,
Jr., and Alan E. Untereiner; for the Chamber of Commerce of the United
States of America by Jonathan D. Hacker, Robin S. Conrad, and Amar
D. Sarwal; for the National Association of Manufacturers et al. by Gene
C. Schaerr, Steffen N. Johnson, Linda T. Coberly, Jan S. Amundson,
Quentin Riegel, and Donald D. Evans; for the National Association of
Mutual Insurance Cos. et al. by Sheila L. Birnbaum, Barbara Wrubel,
Douglas W. Dunham, Ellen P. Quackenbos, J. Stephen Zielezienski,
David F. Snyder, and Allan J. Stein; for the Pacific Legal Foundation by
Deborah J. La Fetra and Timothy Sandefur; for the Product Liability
Advisory Council by Theodore B. Olson, Thomas H. Dupree, Jr., and Theo
dore J. Boutrous, Jr.; for R. J. Reynolds Tobacco Co. et al. by Meir Feder,
Charles R. A. Morse, James T. Newsom, Donald B. Ayer, and Robert H.
Klonoff; for the Washington Legal Foundation et al. by Arvin Maskin,
Daniel J. Popeo, and Paul D. Kamenar; and for Steven L. Chanenson et al.
by Robert D. Fox and John F. Gullace.
Briefs of amici curiae urging affirmance were filed for the State of
Oregon et al. by Hardy Myers, Attorney General of Oregon, Peter Shep
herd, Deputy Attorney General, Mary H. Williams, Solicitor General, and
Janet A. Metcalf and Kaye E. McDonald, Assistant Attorneys General,

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Opinion of the Court
Justice Breyer delivered the opinion of the Court.
The question we address today concerns a large state
court punitive damages award. We are asked whether the
Constitution’s Due Process Clause permits a jury to base
that award in part upon its desire to punish the defendant
for harming persons who are not before the court (e. g., vic
tims whom the parties do not represent). We hold that such
an award would amount to a taking of “property” from the
defendant without due process.
I
This lawsuit arises out of the death of Jesse Williams, a
heavy cigarette smoker. Respondent, Williams’ widow, rep
resents his estate in this state lawsuit for negligence and
deceit against Philip Morris, the manufacturer of Marlboro,
the brand that Williams favored. A jury found that Wil
liams’ death was caused by smoking; that Williams smoked
in significant part because he thought it was safe to do so;
and by the Attorneys General for their respective States as follows: Bill
Lockyer of California, J. Joseph Curran, Jr., of Maryland, Mike Hatch of
Minnesota, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri,
Mike McGrath of Montana, Patricia A. Madrid of New Mexico, W. A.
Drew Edmondson of Oklahoma, Mark L. Shurtleff of Utah, and Peg
Lautenschlager of Wisconsin; for AARP et al. by Elizabeth J. Cabraser
and Deborah Zuckerman; for the Association of Trial Lawyers of America
by Gerson H. Smoger and Brent M. Rosenthal; for the Campaign for
Tobacco-Free Kids et al. by William B. Schultz; for the Center for a Just
Society by Brian G. Brooks; for Trial Lawyers for Public Justice by Mi
chael V. Ciresi, Roberta B. Walburn, Arthur H. Bryant, and Leslie A.
Brueckner; for Henry H. Drummonds et al. by Steven C. Berman; for
Keith N. Hylton et al. by Ronald Simon, Ed Bell, Patrick Carr, Richard
L. Denney, Charles Siegel, and Gerry L. Spence; and for Neil Vidmar et al.
by Frederick M. Baron.
Briefs of amici curiae were filed for the Oregon Forest Industries Coun
cil et al. by Thomas W. Brown; for the Tobacco Control Legal Consortium
et al. by Edward L. Sweda, Jr.; for Akhil Reed Amar et al. by Kenneth
Chesebro, Michael J. Piuze, and Arthur McEvoy; and for A. Mitchell Polin
sky et al. by Timothy Lynch.

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350 PHILIP MORRIS USA v. WILLIAMS
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and that Philip Morris knowingly and falsely led him to
believe that this was so. The jury ultimately found that
Philip Morris was negligent (as was Williams) and that
Philip Morris had engaged in deceit. In respect to deceit,
the claim at issue here, it awarded compensatory damages of
about $821,000 (about $21,000 economic and $800,000 noneco
nomic) along with $79.5 million in punitive damages.
The trial judge subsequently found the $79.5 million puni
tive damages award “excessive,” see, e. g., BMW of North
America, Inc. v. Gore, 517 U. S. 559 (1996), and reduced it to
$32 million. Both sides appealed. The Oregon Court of
Appeals rejected Philip Morris’ arguments and restored the
$79.5 million jury award. Subsequently, Philip Morris
sought review in the Oregon Supreme Court (which denied
review) and then here. We remanded the case in light of
State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S.
408 (2003). 540 U. S. 801 (2003). The Oregon Court of Ap
peals adhered to its original views. And Philip Morris
sought, and this time obtained, review in the Oregon Su
preme Court.
Philip Morris then made two arguments relevant here.
First, it said that the trial court should have accepted, but
did not accept, a proposed “punitive damages” instruction
that specified the jury could not seek to punish Philip Morris
for injury to other persons not before the court. In particu
lar, Philip Morris pointed out that the plaintiff ’s attorney
had told the jury to “think about how many other Jesse Wil
liams in the last 40 years in the State of Oregon there have
been. . . . In Oregon, how many people do we see outside,
driving home . . . smoking cigarettes? . . . [C]igarettes . . .
are going to kill ten [of every hundred]. [And] the market
share of Marlboros [i. e., Philip Morris] is one-third [i. e., one
of every three killed].” App. 197a, 199a. In light of this
argument, Philip Morris asked the trial court to tell the jury
that “you may consider the extent of harm suffered by others
in determining what [the] reasonable relationship is” be

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tween any punitive award and “the harm caused to Jesse
Williams” by Philip Morris’ misconduct, “[but] you are not to
punish the defendant for the impact of its alleged misconduct
on other persons, who may bring lawsuits of their own in
which other juries can resolve their claims . . . .” Id., at
280a. The judge rejected this proposal and instead told the
jury that “[p]unitive damages are awarded against a defend
ant to punish misconduct and to deter misconduct,” and “are
not intended to compensate the plaintiff or anyone else for
damages caused by the defendant’s conduct.” Id., at 283a.
In Philip Morris’ view, the result was a significant likelihood
that a portion of the $79.5 million award represented punish
ment for its having harmed others, a punishment that the
Due Process Clause would here forbid.
Second, Philip Morris pointed to the roughly 100-to-1 ratio
the $79.5 million punitive damages award bears to $821,000
in compensatory damages. Philip Morris noted that this
Court in BMW emphasized the constitutional need for puni
tive damages awards to reflect (1) the “reprehensibility” of
the defendant’s conduct, (2) a “reasonable relationship” to the
harm the plaintiff (or related victim) suffered, and (3) the
presence (or absence) of “sanctions,” e. g., criminal penalties,
that state law provided for comparable conduct, 517 U. S.,
at 575–585. And in State Farm, this Court said that the
longstanding historical practice of setting punitive dam
ages at two, three, or four times the size of compensatory
damages, while “not binding,” is “instructive,” and that
“[s]ingle-digit multipliers are more likely to comport with
due process.” 538 U. S., at 425. Philip Morris claimed that,
in light of this case law, the punitive award was “grossly
excessive.” See TXO Production Corp. v. Alliance Re
sources Corp., 509 U. S. 443, 458 (1993) (plurality opinion);
BMW, supra, at 574–575; State Farm, supra, at 416–417.
The Oregon Supreme Court rejected these and other
Philip Morris arguments. In particular, it rejected Philip
Morris’ claim that the Constitution prohibits a state jury

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“from using punitive damages to punish a defendant for harm
to nonparties.” 340 Ore. 35, 51–52, 127 P. 3d 1165, 1175
(2006). And in light of Philip Morris’ reprehensible conduct,
it found that the $79.5 million award was not “grossly exces
sive.” Id., at 63–64, 127 P. 3d, at 1181–1182.
Philip Morris then sought certiorari. It asked us to con
sider, among other things, (1) its claim that Oregon had
unconstitutionally permitted it to be punished for harming
nonparty victims; and (2) whether Oregon had in effect disre
garded “the constitutional requirement that punitive dam
ages be reasonably related to the plaintiff ’s harm.” Pet.
for Cert. (I). We granted certiorari limited to these two
questions.
For reasons we shall set forth, we consider only the first
of these questions. We vacate the Oregon Supreme Court’s
judgment, and we remand the case for further proceedings.
II
This Court has long made clear that “[p]unitive damages
may properly be imposed to further a State’s legitimate in
terests in punishing unlawful conduct and deterring its repe
tition.” BMW, supra, at 568. See also Gertz v. Robert
Welch, Inc., 418 U. S. 323, 350 (1974); Newport v. Fact Con
certs, Inc., 453 U. S. 247, 266–267 (1981); Pacific Mut. Life
Ins. Co. v. Haslip, 499 U. S. 1, 22 (1991). At the same time,
we have emphasized the need to avoid an arbitrary determi
nation of an award’s amount. Unless a State insists upon
proper standards that will cabin the jury’s discretionary au
thority, its punitive damages system may deprive a defend
ant of “fair notice . . . of the severity of the penalty that a
State may impose,” BMW, supra, at 574; it may threaten
“arbitrary punishments,” i. e., punishments that reflect not
an “application of law” but “a decisionmaker’s caprice,” State
Farm, supra, at 416, 418 (internal quotation marks omitted);
and, where the amounts are sufficiently large, it may impose
one State’s (or one jury’s) “policy choice,” say, as to the condi

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tions under which (or even whether) certain products can be
sold, upon “neighboring States” with different public poli
cies, BMW, supra, at 571–572.
For these and similar reasons, this Court has found that
the Constitution imposes certain limits, in respect both to
procedures for awarding punitive damages and to amounts
forbidden as “grossly excessive.” See Honda Motor Co. v.
Oberg, 512 U. S. 415, 432 (1994) (requiring judicial review
of the size of punitive awards); Cooper Industries, Inc. v.
Leatherman Tool Group, Inc., 532 U. S. 424, 443 (2001) (re
view must be de novo); BMW, supra, at 574–585 (excessive
ness decision depends upon the reprehensibility of the de
fendant’s conduct, whether the award bears a reasonable
relationship to the actual and potential harm caused by the
defendant to the plaintiff, and the difference between the
award and sanctions “authorized or imposed in comparable
cases”); State Farm, supra, at 425 (excessiveness more likely
where ratio exceeds single digits). Because we shall not de
cide whether the award here at issue is “grossly excessive,”
we need now only consider the Constitution’s procedural
limitations.
III
In our view, the Constitution’s Due Process Clause forbids
a State to use a punitive damages award to punish a defend
ant for injury that it inflicts upon nonparties or those whom
they directly represent, i. e., injury that it inflicts upon those
who are, essentially, strangers to the litigation. For one
thing, the Due Process Clause prohibits a State from punish
ing an individual without first providing that individual with
“an opportunity to present every available defense.” Lind
sey v. Normet, 405 U. S. 56, 66 (1972) (internal quotation
marks omitted). Yet a defendant threatened with punish
ment for injuring a nonparty victim has no opportunity to
defend against the charge, by showing, for example in a case
such as this, that the other victim was not entitled to dam

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ages because he or she knew that smoking was dangerous or
did not rely upon the defendant’s statements to the contrary.
For another, to permit punishment for injuring a nonparty
victim would add a near standardless dimension to the puni
tive damages equation. How many such victims are there?
How seriously were they injured? Under what circum
stances did injury occur? The trial will not likely answer
such questions as to nonparty victims. The jury will be left
to speculate. And the fundamental due process concerns to
which our punitive damages cases refer—risks of arbitrari
ness, uncertainty, and lack of notice—will be magnified.
State Farm, 538 U. S., at 416, 418; BMW, 517 U. S., at 574.
Finally, we can find no authority supporting the use of pu
nitive damages awards for the purpose of punishing a de
fendant for harming others. We have said that it may be
appropriate to consider the reasonableness of a punitive
damages award in light of the potential harm the defendant’s
conduct could have caused. But we have made clear that
the potential harm at issue was harm potentially caused the
plaintiff. See State Farm, supra, at 424 (“[W]e have been
reluctant to identify concrete constitutional limits on the
ratio between harm, or potential harm, to the plaintiff and
the punitive damages award” (emphasis added)). See also
TXO, 509 U. S., at 460–462 (plurality opinion) (using same
kind of comparison as basis for finding a punitive award not
unconstitutionally excessive). We did use the term “error
free” (in BMW) to describe a lower court punitive damages
calculation that likely included harm to others in the equa
tion. 517 U. S., at 568, n. 11. But context makes clear that
the term “error-free” in the BMW footnote referred to errors
relevant to the case at hand. Although elsewhere in BMW
we noted that there was no suggestion that the plaintiff “or
any other BMW purchaser was threatened with any addi
tional potential harm” by the defendant’s conduct, we did not
purport to decide the question of harm to others. Id., at
582. Rather, the opinion appears to have left the question
open.

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Respondent argues that she is free to show harm to other
victims because it is relevant to a different part of the puni
tive damages constitutional equation, namely, reprehensibil
ity. That is to say, harm to others shows more reprehensible
conduct. Philip Morris, in turn, does not deny that a plain
tiff may show harm to others in order to demonstrate repre
hensibility. Nor do we. Evidence of actual harm to nonpar
ties can help to show that the conduct that harmed the
plaintiff also posed a substantial risk of harm to the general
public, and so was particularly reprehensible—although
counsel may argue in a particular case that conduct resulting
in no harm to others nonetheless posed a grave risk to the
public, or the converse. Yet for the reasons given above, a
jury may not go further than this and use a punitive damages
verdict to punish a defendant directly on account of harms it
is alleged to have visited on nonparties.
Given the risks of unfairness that we have mentioned, it is
constitutionally important for a court to provide assurance
that the jury will ask the right question, not the wrong one.
And given the risks of arbitrariness, the concern for ade
quate notice, and the risk that punitive damages awards can,
in practice, impose one State’s (or one jury’s) policies (e. g.,
banning cigarettes) upon other States—all of which accom
pany awards that, today, may be many times the size of such
awards in the 18th and 19th centuries, see id., at 594–595
(Breyer, J., concurring)—it is particularly important that
States avoid procedure that unnecessarily deprives juries of
proper legal guidance. We therefore conclude that the Due
Process Clause requires States to provide assurance that ju
ries are not asking the wrong question, i. e., seeking, not sim
ply to determine reprehensibility, but also to punish for harm
caused strangers.
IV
Respondent suggests as well that the Oregon Supreme
Court, in essence, agreed with us, that it did not authorize
punitive damages awards based upon punishment for harm
caused to nonparties. We concede that one might read some

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portions of the Oregon Supreme Court’s opinion as focusing
only upon reprehensibility. See, e. g., 340 Ore., at 51, 127
P. 3d, at 1175 (“[T]he jury could consider whether Williams
and his misfortune were merely exemplars of the harm that
Philip Morris was prepared to inflict on the smoking public
at large”). But the Oregon court’s opinion elsewhere makes
clear that that court held more than these few phrases
might suggest.
The instruction that Philip Morris said the trial court
should have given distinguishes between using harm to oth
ers as part of the “reasonable relationship” equation (which
it would allow) and using it directly as a basis for punish
ment. The instruction asked the trial court to tell the jury
that “you may consider the extent of harm suffered by oth
ers in determining what [the] reasonable relationship is”
between Philip Morris’ punishable misconduct and harm
caused to Jesse Williams, “[but] you are not to punish the
defendant for the impact of its alleged misconduct on other
persons, who may bring lawsuits of their own in which other
juries can resolve their claims . . . .” App. 280a (emphasis
added). And as the Oregon Supreme Court explicitly recog
nized, Philip Morris argued that the Constitution “prohibits
the state, acting through a civil jury, from using punitive
damages to punish a defendant for harm to nonparties.” 340
Ore., at 51–52, 127 P. 3d, at 1175.
The court rejected that claim. In doing so, it pointed out
(1) that this Court in State Farm had held only that a jury
could not base its award upon “dissimilar” acts of a defend
ant. 340 Ore., at 52–53, 127 P. 3d, at 1175–1176. It added
(2) that “[i]f a jury cannot punish for the conduct, then it is
difficult to see why it may consider it at all.” Id., at 52, n. 3,
127 P. 3d, at 1175, n. 3. And it stated (3) that “[i]t is unclear
to us how a jury could ‘consider’ harm to others, yet withhold
that consideration from the punishment calculus.” Ibid.
The Oregon court’s first statement is correct. We did not
previously hold explicitly that a jury may not punish for the

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harm caused others. But we do so hold now. We do not
agree with the Oregon court’s second statement. We have
explained why we believe the Due Process Clause prohibits
a State’s inflicting punishment for harm caused strangers to
the litigation. At the same time we recognize that conduct
that risks harm to many is likely more reprehensible than
conduct that risks harm to only a few. And a jury conse
quently may take this fact into account in determining repre
hensibility. Cf., e. g., Witte v. United States, 515 U. S. 389,
400 (1995) (recidivism statutes taking into account a criminal
defendant’s other misconduct do not impose an “ ‘additional
penalty for the earlier crimes,’ but instead . . . ‘a stiffened
penalty for the latest crime, which is considered to be an
aggravated offense because a repetitive one’ ” (quoting
Gryger v. Burke, 334 U. S. 728, 732 (1948))).
The Oregon court’s third statement raises a practical prob
lem. How can we know whether a jury, in taking account of
harm caused others under the rubric of reprehensibility, also
seeks to punish the defendant for having caused injury to
others? Our answer is that state courts cannot authorize
procedures that create an unreasonable and unnecessary risk
of any such confusion occurring. In particular, we believe
that where the risk of that misunderstanding is a significant
one—because, for instance, of the sort of evidence that was
introduced at trial or the kinds of argument the plaintiff
made to the jury—a court, upon request, must protect
against that risk. Although the States have some flexibility
to determine what kind of procedures they will implement,
federal constitutional law obligates them to provide some
form of protection in appropriate cases.
V
As the preceding discussion makes clear, we believe that
the Oregon Supreme Court applied the wrong constitutional
standard when considering Philip Morris’ appeal. We re
mand this case so that the Oregon Supreme Court can apply

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Stevens, J., dissenting
the standard we have set forth. Because the application of
this standard may lead to the need for a new trial, or a
change in the level of the punitive damages award, we shall
not consider whether the award is constitutionally “grossly
excessive.” We vacate the Oregon Supreme Court’s judg
ment and remand the case for further proceedings not incon
sistent with this opinion.
It is so ordered.
Justice Stevens, dissenting.
The Due Process Clause of the Fourteenth Amendment
imposes both substantive and procedural constraints on the
power of the States to impose punitive damages on tortfea
sors. See State Farm Mut. Automobile Ins. Co. v. Camp
bell, 538 U. S. 408 (2003); Cooper Industries, Inc. v. Leather
man Tool Group, Inc., 532 U. S. 424 (2001); BMW of North
America, Inc. v. Gore, 517 U. S. 559 (1996); Honda Motor
Co. v. Oberg, 512 U. S. 415 (1994); TXO Production Corp. v.
Alliance Resources Corp., 509 U. S. 443 (1993). I remain
firmly convinced that the cases announcing those constraints
were correctly decided. In my view the Oregon Supreme
Court faithfully applied the reasoning in those opinions to
the egregious facts disclosed by this record. I agree with
Justice Ginsburg’s explanation of why no procedural error
even arguably justifying reversal occurred at the trial in this
case. See post, p. 362 (dissenting opinion).
Of greater importance to me, however, is the Court’s impo
sition of a novel limit on the State’s power to impose punish
ment in civil litigation. Unlike the Court, I see no reason
why an interest in punishing a wrongdoer “for harming per
sons who are not before the court,” ante, at 349, should not
be taken into consideration when assessing the appropriate
sanction for reprehensible conduct.
Whereas compensatory damages are measured by the
harm the defendant has caused the plaintiff, punitive dam
ages are a sanction for the public harm the defendant’s con

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359 Cite as: 549 U. S. 346 (2007)
Stevens, J., dissenting
duct has caused or threatened. There is little difference be
tween the justification for a criminal sanction, such as a fine
or a term of imprisonment, and an award of punitive dam
ages. See Cooper Industries, 532 U. S., at 432. In our
early history either type of sanction might have been im
posed in litigation prosecuted by a private citizen. See Steel
Co. v. Citizens for Better Environment, 523 U. S. 83, 127–128
(1998) (Stevens, J., concurring in judgment). And while in
neither context would the sanction typically include a pecuni
ary award measured by the harm that the conduct had
caused to any third parties, in both contexts the harm to
third parties would surely be a relevant factor to consider
in evaluating the reprehensibility of the defendant’s wrong
doing. We have never held otherwise.
In the case before us, evidence attesting to the possible
harm the defendant’s extensive deceitful conduct caused
other Oregonians was properly presented to the jury. No
evidence was offered to establish an appropriate measure of
damages to compensate such third parties for their injuries,
and no one argued that the punitive damages award would
serve any such purpose. To award compensatory damages
to remedy such third-party harm might well constitute a tak
ing of property from the defendant without due process, cf.
ante, at 349. But a punitive damages award, instead of serv
ing a compensatory purpose, serves the entirely different
purposes of retribution and deterrence that underlie every
criminal sanction. State Farm, 538 U. S., at 416. This jus
tification for punitive damages has even greater salience
when, as in this case, see Ore. Rev. Stat. § 31.735(1) (2003),
the award is payable in whole or in part to the State rather
than to the private litigant.1
1 The Court’s holding in Browning-Ferris Industries of Vt., Inc. v. Kelco
Disposal, Inc., 492 U. S. 257 (1989), distinguished, for the purposes of ap
pellate review under the Excessive Fines Clause of the Eighth Amend
ment, between criminal sanctions and civil fines awarded entirely to the
plaintiff. The fact that part of the award in this case is payable to the

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360 PHILIP MORRIS USA v. WILLIAMS
Stevens, J., dissenting
While apparently recognizing the novelty of its holding,
ante, at 356–357, the majority relies on a distinction between
taking third-party harm into account in order to assess the
reprehensibility of the defendant’s conduct—which is permit
ted—and doing so in order to punish the defendant “di
rectly”—which is forbidden. Ante, at 355. This nuance
eludes me. When a jury increases a punitive damages
award because injuries to third parties enhanced the rep
rehensibility of the defendant’s conduct, the jury is by def
inition punishing the defendant—directly—for third-party
harm.2 A murderer who kills his victim by throwing a
bomb that injures dozens of bystanders should be punished
more severely than one who harms no one other than his
intended victim. Similarly, there is no reason why the
measure of the appropriate punishment for engaging in a
campaign of deceit in distributing a poisonous and addictive
substance to thousands of cigarette smokers statewide
should not include consideration of the harm to those “by
standers” as well as the harm to the individual plaintiff.
The Court endorses a contrary conclusion without providing
us with any reasoned justification.
It is far too late in the day to argue that the Due Process
Clause merely guarantees fair procedure and imposes no
State lends further support to my conclusion that it should be treated
as the functional equivalent of a criminal sanction. See id., at 263–264.
I continue to agree with Justice O’Connor and those scholars who have
concluded that the Excessive Fines Clause is applicable to punitive dam
ages awards regardless of who receives the ultimate payout. See id., at
286–299 (opinion concurring in part and dissenting in part).
2 It is no answer to refer, as the majority does, to recidivism statutes.
Ante, at 357. In that context, we have distinguished between taking
prior crimes into account as an aggravating factor in penalizing the con
duct before the court versus doing so to punish for the earlier crimes.
Ibid. But if enhancing a penalty for a present crime because of prior
conduct that has already been punished is permissible, it is certainly
proper to enhance a penalty because the conduct before the court, which
has never been punished, injured multiple victims.

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361 Cite as: 549 U. S. 346 (2007)
Thomas, J., dissenting
substantive limits on a State’s lawmaking power. See, e. g.,
Moore v. East Cleveland, 431 U. S. 494, 544 (1977) (White,
J., dissenting); Poe v. Ullman, 367 U. S. 497, 540–541 (1961)
(Harlan, J., dissenting); Whitney v. California, 274 U. S. 357,
373 (1927) (Brandeis, J., concurring). It remains true, how
ever, that the Court should be “reluctant to expand the con
cept of substantive due process because guideposts for re
sponsible decisionmaking in this unchartered area are scarce
and open-ended.” Collins v. Harker Heights, 503 U. S. 115,
125 (1992). Judicial restraint counsels us to “exercise the
utmost care whenever we are asked to break new ground in
this field.” Ibid. Today the majority ignores that sound
advice when it announces its new rule of substantive law.
Essentially for the reasons stated in the opinion of the
Supreme Court of Oregon, I would affirm its judgment.
Justice Thomas, dissenting.
I join Justice Ginsburg’s dissent in full. I write sep
arately to reiterate my view that “ ‘the Constitution does
not constrain the size of punitive damages awards.’ ” State
Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408,
429–430 (2003) (Thomas, J., dissenting) (quoting Cooper In
dustries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424,
443 (2001) (Thomas, J., concurring)). It matters not that the
Court styles today’s holding as “procedural” because the
“procedural” rule is simply a confusing implementation of
the substantive due process regime this Court has created
for punitive damages. See Pacific Mut. Life Ins. Co. v. Has
lip, 499 U. S. 1, 26–27 (1991) (Scalia, J., concurring in judg
ment) (“In 1868 . . . punitive damages were undoubtedly an
established part of the American common law of torts. It
is . . . clear that no particular procedures were deemed neces
sary to circumscribe a jury’s discretion regarding the award
of such damages, or their amount”). Today’s opinion proves
once again that this Court’s punitive damages jurisprudence
is “insusceptible of principled application.” BMW of North

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362 PHILIP MORRIS USA v. WILLIAMS
Ginsburg, J., dissenting
America, Inc. v. Gore, 517 U. S. 559, 599 (1996) (Scalia, J.,
joined by Thomas, J., dissenting).
Justice Ginsburg, with whom Justice Scalia and Jus
tice Thomas join, dissenting.
The purpose of punitive damages, it can hardly be denied,
is not to compensate, but to punish. Punish for what? Not
for harm actually caused “strangers to the litigation,” ante,
at 353, the Court states, but for the reprehensibility of de
fendant’s conduct, ante, at 355. “[C]onduct that risks harm
to many,” the Court observes, “is likely more reprehensible
than conduct that risks harm to only a few.” Ante, at 357.
The Court thus conveys that, when punitive damages are at
issue, a jury is properly instructed to consider the extent of
harm suffered by others as a measure of reprehensibility, but
not to mete out punishment for injuries in fact sustained by
nonparties. Ante, at 355–357. The Oregon courts did not
rule otherwise. They have endeavored to follow our deci
sions, most recently in BMW of North America, Inc. v. Gore,
517 U. S. 559 (1996), and State Farm Mut. Automobile Ins.
Co. v. Campbell, 538 U. S. 408 (2003), and have “deprive[d]
[no jury] of proper legal guidance,” ante, at 355. Vacation
of the Oregon Supreme Court’s judgment, I am convinced,
is unwarranted.
The right question regarding reprehensibility, the Court
acknowledges, ante, at 356, would train on “the harm that
Philip Morris was prepared to inflict on the smoking public
at large.” Ibid. (quoting 340 Ore. 35, 51, 127 P. 3d 1165, 1175
(2006)). See also id., at 55, 127 P. 3d, at 1177 (“[T]he
jury, in assessing the reprehensibility of Philip Morris’s
actions, could consider evidence of similar harm to other
Oregonians caused (or threatened) by the same conduct.”
(emphasis added)). The Court identifies no evidence intro
duced and no charge delivered inconsistent with that inquiry.
The Court’s order vacating the Oregon Supreme Court’s
judgment is all the more inexplicable considering that Philip

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363 Cite as: 549 U. S. 346 (2007)
Ginsburg, J., dissenting
Morris did not preserve any objection to the charges in fact
delivered to the jury, to the evidence introduced at trial, or
to opposing counsel’s argument. The sole objection Philip
Morris preserved was to the trial court’s refusal to give de
fendant’s requested charge number 34. See id., at 54, 127 P.
3d, at 1176. The proposed instruction read in pertinent
part:
“If you determine that some amount of punitive dam
ages should be imposed on the defendant, it will then be
your task to set an amount that is appropriate. This
should be such amount as you believe is necessary to
achieve the objectives of deterrence and punishment.
While there is no set formula to be applied in reaching
an appropriate amount, I will now advise you of some
of the factors that you may wish to consider in this
connection.
“(1) The size of any punishment should bear a reason
able relationship to the harm caused to Jesse Williams
by the defendant’s punishable misconduct. Although
you may consider the extent of harm suffered by others
in determining what that reasonable relationship is, you
are not to punish the defendant for the impact of its
alleged misconduct on other persons, who may bring
lawsuits of their own in which other juries can resolve
their claims and award punitive damages for those
harms, as such other juries see fit.
. . . . .
“(2) The size of the punishment may appropriately re
flect the degree of reprehensibility of the defendant’s
conduct—that is, how far the defendant has departed
from accepted societal norms of conduct.” App. 280a.
Under that charge, just what use could the jury properly
make of “the extent of harm suffered by others”? The an
swer slips from my grasp. A judge seeking to enlighten
rather than confuse surely would resist delivering the re
quested charge.

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364 PHILIP MORRIS USA v. WILLIAMS
Ginsburg, J., dissenting
The Court ventures no opinion on the propriety of the
charge proposed by Philip Morris, though Philip Morris pre
served no other objection to the trial proceedings. Rather
than addressing the one objection Philip Morris properly
preserved, the Court reaches outside the bounds of the case
as postured when the trial court entered its judgment.
I would accord more respectful treatment to the proceedings
and dispositions of state courts that sought diligently to ad
here to our changing, less than crystalline precedent.
* * *
For the reasons stated, and in light of the abundant evi
dence of “the potential harm [Philip Morris’] conduct could
have caused,” ante, at 354 (emphasis deleted), I would affirm
the decision of the Oregon Supreme Court.