A jury just found Donald Trump liable for over $83 million in the E. Jean Carroll defamation case. Of that, about $65 million are punitive damages.

Are the punitive damages likely to be sustained if challenged (as they will be) judicially?

To begin with, there’s the question whether the compensatory damages will stand. If they are found to be excessive, then the punitive damages would likely be gone as well, and a new trial on both damages held. I don’t have an opinion on the excessiveness of the compensatory damages because I did not pay close enough attention to the evidence at this latest trial.

But the punitive damages question presents different issues. Apart from any state court review, the U.S. Supreme Court has held that punitive damages sometimes are unconstitutional under the due process clause and require independent review (one of the leading cases here is State Farm v. Campbell).

The purpose of punitive damages is to punish and deter, and wealthier defendants would likely need a higher punitive damage award to be deterred. Also, Trump appears to be a recidivist, continuing to defame Carroll, which would justify a higher award.

That said, the Supreme Court has said that the wealth of the defendant cannot justify an otherwise unconstitutional award, and that when substantial compensatory damages are awarded (as they were in this case), then a punitive award should be in a relatively low ratio to compensatory damages (like a 1:1 ratio, meaning damages in the $18 million range).

It’s fairly common for a jury to award very high punitive damages to a rich defendant who has engaged in egregious conduct, only to see the punitive award lowered either by the trial court or on appeal.

We’ll see what happens, but the full $65 million in punitive damages is uncertain to stand.