Cite as: 509 U. S. 443 (1993)
O'Connor, J., dissenting
That these disproportions might implicate due process concerns the plurality does not deny. Nonetheless, it refuses to "enshrine petitioner's comparative approach in a 'test' for assessing the constitutionality of punitive damages awards." Ante, at 458. I agree with the plurality that, although it might be convenient to establish a multipart test and impose it upon the States, the principles of federalism counsel against such a course. The States should be permitted to "experiment with different methods" of ferreting out impermissible awards "and to adjust these methods over time." Haslip, supra, at 64 (O'Connor, J., dissenting). Nonetheless, I see no reason why this Court or any other would wish to disregard such probative evidence. For example, although retribution is a permissible consideration in assessing punitive damages awards, it is quite difficult to determine whether a particular award can be attributed to that goal; retribution resists quantification. Nonetheless, jury awards in similar cases and the civil and criminal penalties created by the legislature for like conduct can give us some idea of the limits on retribution. Thus, a $5,000 punitive damages award on actual damages of $1 may not seem well proportioned at first blush; but if the legislature has seen fit to impose a $50,000 penalty for that very same conduct, the award might be deemed a reasoned retributive response.
This approach, of course, has its limits. Because no two cases are alike, not all comparisons will be enlightening. See ante, at 457-458 (plurality opinion). But recognizing the limits of an approach does not compel us to discard it entirely. I do not see what can be gained by blinding ourselves to the few clear guideposts in an area so painfully bereft of objective criteria. Indeed, Justice Stevens joined in proposing precisely such an approach to punitive damages under the Eighth Amendment in Browning-Ferris, see 492 U. S., at 301 (O'Connor, J., joined by Stevens, J., concurring in part and dissenting in part). Moreover, courts at common law engaged in similar comparisons. See, e. g., Travis v. Barger,
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