494
O'Connor, J., dissenting
here all day, [in this] town that needs it to pay for the police force and the fire department, they give [him] a fine. And at the end of the day [he] may have to pay a dollar. That person reaches in his billfold at the end of the day and maybe he's got a hundred bucks in there. He doesn't want to have to pay that dollar, but he does, because he knows if he doesn't [he'll have legal problems]. . . . The town didn't take everything from the individual, didn't ruin [him], just took one percent of what that person had in cash. One percent. You can fine TXO one percent if you want, you can fine them one dollar if you want. But I submit to you a one percent fine, the same as John Doe on this street, would be fair. That's twelve and a half million dollars, based on what they had left over. And their earnings w[ere] $225,000,000.00 [per year]. I mean, yeah, their cash flow. Their surplus. So anything between twelve and a half million and twenty-two million is only one percent—the same as this poor guy who just tried to cheat a little bit. Now that's a lot of money. I hope, like I said, you don't analyze this on a lot or a little, but fair." Id., at 781-782 (emphases added).
Over and over respondents' lawyers reminded the jury that there were virtually no substantive limits on its discretion. Time and again they told the jury of TXO's great wealth and that it could take away any amount it wanted, as long as it seemed "fair." Id., at 781 ("It isn't really whether the verdict is too large or too small, too big or too little. It's whether it's fair"); ibid. ("A two billion dollar company. Have earnings of $225,000,000.00, average. Last year made $125,000,000.00 alone. Last year. Now, what's a good fine for a company like that? A hundred thousand? A million? You can do that if you think it's fair . . ."). And each time the argument found solid support in the trial court's instructions, which not only licensed the jury to afford respondents
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