JUSTICE BRENNAN delivered the opinion of the Court.
We granted certiorari in this case, 456 U.S. 924 (1982), to decide whether the District Court for the Western District of Missouri applied the correct legal standard in instructing the jury that it might award punitive damages under 42 U. S. C. § 1983 (1976 ed., Supp. V).
The petitioner, William H. Smith, is a guard at Algoa Reformatory, a unit of the Missouri Division of Corrections for youthful first offenders. The respondent, Daniel R. Wade, was assigned to Algoa as an inmate in 1976. In the summer of 1976 Wade voluntarily checked into Algoa's protective custody unit. Because of disciplinary violations during his stay in protective custody, Wade was given a short term in punitive segregation and then transferred to administrative segregation. On the evening of Wade's first day in administrative segregation, he was placed in a cell with another inmate. Later, when Smith came on duty in Wade's dormitory, he placed a third inmate in Wade's cell. According to Wade's testimony, his cellmates harassed, beat, and sexually assaulted him.
Wade brought suit under 42 U. S. C. § 1983 against Smith and four other guards and correctional officials, alleging that his Eighth Amendment rights had been violated. At trial his evidence showed that he had placed himself in protective custody because of prior incidents of violence against him by other inmates. The third prisoner whom Smith added to the cell had been placed in administrative segregation for fighting. Smith had made no effort to find out whether another cell was available; in fact there was another cell in the same dormitory with only one occupant. Further, only a few weeks earlier, another inmate had been beaten to death in the same dormitory during the same shift, while Smith had been on duty. Wade asserted that Smith and the other defendants knew or should have known that an assault against him was likely under the circumstances.
During trial, the District Judge entered a directed verdict for two of the defendants. He instructed the jury that Wade could make out an Eighth Amendment violation only by showing "physical abuse of such base, inhumane and barbaric proportions as to shock the sensibilities." Tr. 639. Further, because of Smith's qualified immunity as a prison
The District Judge also charged the jury that it could award punitive damages on a proper showing:
The jury returned verdicts for two of the three remaining defendants. It found Smith liable, however, and awarded $25,000 in compensatory damages and $5,000 in punitive damages. The District Court entered judgment on the verdict, and the Court of Appeals affirmed. Wade v. Haynes, 663 F.2d 778 (1981).
In this Court, Smith attacks only the award of punitive damages. He does not challenge the correctness of the instructions
Section 1983 is derived from § 1 of the Civil Rights Act of 1871, 17 Stat. 13. It was intended to create "a species of tort liability" in favor of persons deprived of federally secured rights. Carey v. Piphus, 435 U.S. 247, 253 (1978); Imbler v. Pachtman, 424 U.S. 409, 417 (1976). We noted in Carey that there was little in the section's legislative history concerning the damages recoverable for this tort liability, 435 U. S., at 255. In the absence of more specific guidance, we looked first to the common law of torts (both modern and as of 1871), with such modification or adaptation as might be necessary to carry out the purpose and policy of the statute. Id., at 253-264. We have done the same in other contexts arising under § 1983, especially the recurring problem of common-law immunities.
Smith does not argue that the common law, either in 1871 or now, required or requires a showing of actual malicious intent
Perhaps not surprisingly, there was significant variation (both terminological and substantive) among American jurisdictions in the latter 19th century on the precise standard to be applied in awarding punitive damages — variation that was exacerbated by the ambiguity and slipperiness of such common terms as "malice" and "gross negligence."
This Court so stated on several occasions, before and shortly after 1871. In Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202 (1859), a diversity libel suit, the Court held erroneous an instruction that authorized the jury to return a punitive award but gave the jury virtually no substantive guidance as to the proper threshold. We described the standard thus:
The Court therefore held erroneous a jury instruction allowing a punitive award on "gross negligence"; it concluded that the latter term was too vague, and too likely to be confused with mere ordinary negligence, to provide a fair standard. It remanded for a new trial.
See also Minneapolis & St. Louis R. Co. v. Beckwith, 129 U.S. 26, 34 (1889) ("culpable negligence").
The remaining question is whether the policies and purposes of § 1983 itself require a departure from the rules of tort common law. As a general matter, we discern no reason why a person whose federally guaranteed rights have
Smith's argument, which he offers in several forms, is that an actual-intent standard is preferable to a recklessness standard because it is less vague. He points out that punitive damages, by their very nature, are not awarded to compensate the injured party. See Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-267 (1981); Electrical Workers v. Foust, 442 U.S. 42, 48 (1979); Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-350 (1974). He concedes, of course, that deterrence of future egregious conduct is a primary purpose of both § 1983, see Newport, supra, at 268; Owen v. City of Independence, 445 U.S. 622, 651 (1980); Robertson v. Wegmann, 436 U.S. 584, 591 (1978), and of punitive damages, see Newport, supra, at 268; Restatement (Second) of Torts § 908(1) (1979). But deterrence, he contends, cannot be achieved unless the standard of conduct sought to be deterred is stated with sufficient clarity to enable potential defendants to conform to the law and to avoid the proposed sanction. Recklessness or callous indifference, he argues, is too uncertain a standard to achieve deterrence rationally and fairly. A prison guard, for example, can be expected to know whether he is acting with actual ill will or intent to injure, but not whether he is being reckless or callously indifferent.
Smith's argument, if valid, would apply to ordinary tort cases as easily as to § 1983 suits; hence, it hardly presents an argument for adopting a different rule under § 1983. In any event, the argument is unpersuasive. While, arguendo, an intent standard may be easier to understand and apply to particular situations than a recklessness standard, we are not persuaded that a recklessness standard is too vague to be fair or useful. In the Milwaukee case, 91 U.S. 489 (1876), we adopted a recklessness standard rather than a gross negligence standard precisely because recklessness would better serve the need for adequate clarity and fair application. Almost
More fundamentally, Smith's argument for certainty in the interest of deterrence overlooks the distinction between a standard for punitive damages and a standard of liability in the first instance. Smith seems to assume that prison guards and other state officials look mainly to the standard for punitive damages in shaping their conduct. We question the premise; we assume, and hope, that most officials are guided primarily by the underlying standards of federal substantive law — both out of devotion to duty, and in the interest of avoiding liability for compensatory damages. At any rate, the conscientious officer who desires clear guidance on how to do his job and avoid lawsuits can and should look to the standard for actionability in the first instance. The need for exceptional clarity in the standard for punitive damages arises only if one assumes that there are substantial numbers of officers who will not be deterred by compensatory damages; only such officers will seek to guide their conduct by the punitive damages standard. The presence of such officers constitutes a powerful argument against raising the threshold for punitive damages.
In this case, the jury was instructed to apply a high standard of constitutional right ("physical abuse of such base, inhumane and barbaric proportions as to shock the sensibilities"). It was also instructed, under the principle of
Smith contends that even if § 1983 does not ordinarily require a showing of actual malicious intent for an award of punitive damages, such a showing should be required in this case. He argues that the deterrent and punitive purposes of punitive damages are served only if the threshold for punitive damages is higher in every case than the underlying standard for liability in the first instance. In this case, while the District Judge did not use the same precise terms to explain the standards of liability for compensatory and punitive damages, the parties agree that there is no substantial difference between the showings required by the two instructions; both apply a standard of reckless or callous indifference to Wade's rights. Hence, Smith argues, the District Judge erred in not requiring a higher standard for punitive damages, namely, actual malicious intent.
This argument incorrectly assumes that, simply because the instructions specified the same threshold of liability for
This common-law rule makes sense in terms of the purposes of punitive damages. Punitive damages are awarded in the jury's discretion "to punish [the defendant] for his outrageous conduct and to deter him and others like him from similar conduct in the future." Restatement (Second) of Torts § 908(1) (1979). The focus is on the character of the tortfeasor's conduct — whether it is of the sort that calls for deterrence and punishment over and above that provided by compensatory awards. If it is of such a character, then it is appropriate to allow a jury to assess punitive damages; and that assessment does not become less appropriate simply because the plaintiff in the case faces a more demanding standard of actionability. To put it differently, society has an interest in deterring and punishing all intentional or reckless invasions of the rights of others, even though it sometimes
As with his first argument, Smith gives us no good reason to depart from the common-law rule in the context of § 1983. He argues that too low a standard of exposure to punitive damages in cases such as this threatens to undermine the policies of his qualified immunity as a prison guard. The same reasoning would apply with at least as much force to, for example, the First Amendment and common-law immunities involved in the defamation cases described above. In any case, Smith overstates the extent of his immunity. Smith is protected from liability for mere negligence because of the need to protect his use of discretion in his day-to-day decisions in the running of a correctional facility. See generally Procunier v. Navarette, 434 U.S. 555 (1978); Wood v. Strickland, 420 U.S. 308 (1975). But the immunity on which Smith relies is coextensive with the interest it protects.
We hold that a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. We further hold that this threshold applies even when the underlying standard of liability for compensatory damages is one of recklessness. Because the jury instructions in this case are in accord with this rule, the judgment of the Court of Appeals is
This case requires us to determine what degree of culpability on the part of a defendant in an action under 42 U. S. C. § 1983 (1976 ed., Supp. V) will permit an award of punitive damages. The District Court instructed the jury that it could award punitive damages in favor of the plaintiff if it concluded that the defendant's conduct constituted "reckless or callous disregard of, or indifference to, the rights or safety of others." In my view, a forthright inquiry into the intent of the 42d Congress and a balanced consideration of the public policies at issue compel the conclusion that the proper standard for an award of punitive damages under § 1983 requires at least some degree of bad faith or improper motive on the part of the defendant.
Before examining these points, however, it is useful to consider briefly the purposes of punitive damages. A fundamental premise of our legal system is the notion that damages are awarded to compensate the victim — to redress the injuries that he or she actually has suffered. D. Dobbs, Law of Remedies § 3.1 (1973); C. McCormick, Law of Damages
Despite these attempted justifications, the doctrine of punitive damages has been vigorously criticized throughout the Nation's history. Countless cases remark that such damages have never been "a favorite of the law."
Because of these considerations, a significant number of American jurisdictions refuse to condone punitive damages awards. See, e. g., Killibrew v. Abbott Laboratories, 359 So.2d 1275 (La. 1978); Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N. E. 1 (1891) (Holmes, J.); Miller v. Kingsley, 194 Neb. 123, 124, 230 N.W.2d 472, 474 (1975); Vratsenes v. New Hampshire Auto, Inc., 112 N.H. 71, 73, 289 A.2d 66, 68 (1972); Pereira v. International Basic Economy Corp., 95 P. R. R. 28 (1967); Maki v. Aluminum Building Products, 73 Wn.2d 23, 25, 436 P.2d 186, 187
Nonetheless, a number of States do permit juries to award punitive damages in certain circumstances. Historically, however, there has been little uniformity among the standards applied in these States for determining on what basis a jury might award punitive damages. See, e. g., Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257, 1283, and n. 135 (1976); Ellis, Fairness and Efficiency in the Law of Punitive Damages, 56 S. Cal. L. Rev. 1, 52-53 (1982) ("the law of punitive damages is characterized by a high degree of uncertainty that stems from the use of a multiplicity of vague, overlapping terms"); Duckett v. Pool, 34 S.C. 311, 325, 13 S. E. 542, 547 (1891); Lynd v. Picket, 7 Minn. 184, 200 (1862).
One fundamental distinction is essential to an understanding of the differences among the various standards for punitive damages. Many jurisdictions have required some sort of wrongful motive, actual intention to inflict harm or intentional doing of an act known to be unlawful — "express malice," "actual malice," "bad faith," "wilful wrong" or "ill will."
The importance of this distinction is reflected in what one court, speaking not many years before the time § 1983 was enacted, said:
The Ohio court, applying this distinction, held that punitive damages could only be awarded where some "evil motive"
It is illuminating to examine the Court's reasoning with this distinction in mind.
At bottom, this case requires the Court to decide when a particular remedy is available under § 1983. Until today, ante, at 34-35, n. 2, the Court has adhered, with some fidelity, to the scarcely controversial principle that its proper role in interpreting § 1983 is determining what the 42d Congress intended. That § 1983 is to be interpreted according to this basic principle of statutory construction, 2A C. Sands, Sutherland on Statutory Construction § 45.05 (4th ed. 1972), is clearly demonstrated by our many decisions relying upon the plain language of the section. See, e. g., Parratt v. Taylor, 451 U.S. 527, 534 (1981); Maine v. Thiboutot, 448 U.S. 1, 4 (1980); Owen v. City of Independence, 445 U.S. 622, 635 (1980). The Court's opinion purports to pursue an inquiry
In an apparent attempt to justify its novel approach to discerning the intent of a body that deliberated more than a century ago, the Court makes passing reference to our decisions relating to common-law immunities under § 1983. These decisions provide no support for the Court's analysis, since they all plainly evidence an attempt to discern the intent of the 42d Congress, albeit indirectly, by reference to the common-law principles known to Members of that body. In Tenney v. Brandhove, 341 U.S. 367 (1951), one of our earliest immunity decisions, we phrased the question whether legislators were immune from actions under § 1983 as follows:
More recently, in Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981), we said:
Likewise, our other decisions with respect to common-law immunities under § 1983 clearly reveal that our consideration of state common-law rules is only a device to facilitate determination of congressional intent.
The Court also purports to rely on decisions, handed down in the second half of the last century by this Court, in drawing up its rule that mere recklessness will support an award of punitive damages. In fact, these decisions unambiguously support an actual-malice standard. The Court rests primarily on Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202 (1859), a diversity tort action against a railroad. There, we initially observed that in "certain actions of tort," punitive damages might be awarded, and then described those actions as "[w]henever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity." Id., at 214. As discussed previously, n. 3, supra, it was relatively clear at the time that "malice" required a showing of actual ill will or intent to injure. Perhaps foreseeing future efforts to expand the rule, however, we hastened to specify the type of malice that would warrant punitive damages: "the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations." 21 How., at 214 (emphasis added). It would have been difficult to have more clearly expressed the "actual malice" standard. We explicitly rejected an "implied malice" formulation, and then mandated inquiry into the "spirit" in which a defendant's act was "conceived."
The Court does not address the requirement, explicitly set forth in Quigley, that punitive damages depend on the spirit in which an act was conceived. Instead, focusing only on the words "criminal indifference," ante, at 41-42, n. 9, the Court
Of course, as the Court notes, there are crimes based on reckless or negligent conduct; it reasons from this that the "criminality" requirement in Quigley is not confined to cases where persons act with wrongful intent. Yet the requirement of "criminal" spirit is far more sensibly interpreted, not as incorporating every possible twist and turn of criminal law, but as reflecting "a principle of our legal system . . . that the essence of an offence is the wrongful intent." 1 Bishop, supra, § 287. Indeed, the Court's argument proves far too much: if we are to assume that the reference to "criminal indifference" in Quigley was meant, as the Court argues, to incorporate every possible mental state that justifies the imposition of criminal sanctions, then punitive damages would be available for simple negligence. Plainly our decision in Quigley does not stand for this remarkable proposition.
Elsewhere in Day we explained that punitive damages are awarded because of "moral turpitude or atrocity." Ibid. It is obvious from these references that we understood the terms "malice" and "wantonness" as requiring that a defendant have acted with evil purposes or intent to do injury. It was with this understanding of the phrases in question that the Quigley Court framed its rule, and with this background, any fair reading of that decision could not avoid the conclusion that the Court intended to create an actual-malice requirement.
Our decisions following 1871 indicate yet more clearly that we adhered to an actual-malice or intent-to-injure requirement in punitive damages actions. In Milwaukee & St. Paul R. Co. v. Arms, 91 U.S. 489 (1876), a verdict against a railroad in a diversity action was reversed because the jury was erroneously charged that it might award punitive damages on
Read in context, this language strongly suggests that an actual-malice standard was intended. The rule of exemplary damages "rests" on a defendant's "evil motive," and, while "reckless indifference" may justify some awards of punitive damages, it may do so only in "that" class of "reckless indifference. . . which is equivalent to an intentional violation" of the plaintiff's rights. Ibid. (emphasis added).
This interpretation of the opinion in Arms is the only reading that can be squared with the holding of that case.
A leading authority on the law of torts has written that there "is often no clear distinction at all between [`recklessness'] and `gross' negligence, and the two have tended to merge and take on the same meaning, of an aggravated form of negligence . . . ." W. Prosser, Law of Torts § 34, p. 185 (4th ed. 1971); see also n. 3, supra. Given the virtual identity of the two standards, a Court that held that "gross negligence" was too imprecise a standard to warrant a punitive damages award would not likely have intended its dicta to be read as adopting "recklessness" as an alternative standard. In contrast, a standard of culpability demanding inquiry into the wrongful mental state of the defendant — "evil motive,"
Moreover, the meaning of the Arms decision was made abundantly clear in a case decided the same day Arms was handed down. In Western Union Telegraph Co. v. Eyser, 91 U.S. 495 (1876), the Court reversed a decision of the Supreme Court of the Territory of Colorado holding that on "no view of the evidence was the court below justified in instructing the jury that exemplary damages could be recovered." The Reporter of Decisions explained: "The [defendant's] omission to . . . give some other proper warning . . . was an act of negligence, entitling the plaintiff to compensatory damages. But there was nothing to authorize the jury to consider the omission as wilful: on the contrary, the evidence rebuts every presumption that there was any intentional wrong." Id., at 496 (emphasis added).
And, once again, in Scott v. Donald, 165 U.S. 58, 86 (1897), we made it completely clear that actual malice was a prerequisite to a recovery of punitive damages. In Scott, we held that a complaint alleging a constitutional tort stated facts sufficient to support a claim for punitive damages. In so holding we carefully analyzed our prior decisions respecting punitive damages beginning with Day and continuing through Prentice. We repeated and applied the "well-settled" rule contained in those cases: "Damages have been defined to be the compensation which the law will award for an injury done, and are said to be exemplary and allowable in excess of the actual loss, where a tort is aggravated by evil motive, actual malice, deliberate violence or oppression." 165 U. S., at 86 (emphasis added). The point could not be clearer. The Court today fashions a federal standard for punitive damages, see 42 U. S. C. § 1988 (1976 ed., Supp. V), yet steadfastly refuses to follow those of our decisions speaking to that point. If it did, it would adopt a standard requiring "evil motive, actual malice, deliberate violence or oppression." Ibid.
In addition, the decisions rendered by state courts in the years preceding and immediately following the enactment of § 1983 attest to the fact that a solid majority of jurisdictions took the view that the standard for an award of punitive damages
Most clear of all, however, is the fact that at about the time § 1983 was enacted a considerable number of the 37 States
Even apart from this historical background, I am persuaded by a variety of additional factors that the 42d Congress intended a "wrongful intent" requirement. As mentioned above, punitive damages are not, and never have been, a favored remedy. In determining whether Congress, not bound by stare decisis,
In deciding whether Congress heeded such advice, it is useful to consider the language of § 1983 itself — which should, of course, be the starting point for any inquiry into legislative intent. Section 1983 provides:
Plainly, the statutory language itself provides absolutely no support for the cause of action for punitive damages that the Court reads into the provision. Indeed, it merely creates "liab[ility] to the party injured . . . for redress." "Redress" means "[r]eparation of, satisfaction or compensation for, a wrong sustained or the loss resulting from this." 8 Oxford English Dictionary 310 (1933). And, as the Court concedes, punitive damages are not "reparation" or "compensation"; their very purpose is to punish, not to compensate. If Congress meant to create a right to recover punitive damages, then it chose singularly inappropriate words: both the reference to injured parties and to redress suggests compensation, and not punishment.
Other statutes roughly contemporaneous with § 1983 illustrate that if Congress wanted to subject persons to a punitive damages remedy, it did so explicitly. For example, in § 59, 16 Stat. 207, Congress created express punitive damages remedies for various types of commercial misconduct. Likewise, the False Claims Act, § 5, 12 Stat. 698, provided a civil remedy of double damages and a $2,000 civil forfeiture penalty for certain misstatements to the Government. As one
In the light of the foregoing indications, it is accurate to say that the foundation upon which the right to punitive damages under § 1983 rests is precarious, at the best. Given the extraordinary diffidence and obliqueness with which the right was granted — if it was — it seems more than a little unusual to read that grant as incorporating the most expansive of the available views as to the standard for punitive damages. Given the legislative ambiguity, the sensible approach to the problem would be an honest recognition that, if we are to infer a right to punitive damages, it should be a restrained one, reflecting the Legislature's approach in creating the right. And surely, the right ought to be limited by the view of punitive damages that the Members of the 42d Congress would have had — not by what some state courts have done a century later.
An intent requirement, unlike a recklessness standard, is logically consistent with the underlying justification for punitive damages. It is a fundamental principle of American law that penal consequences generally ought to be imposed only where there has been some sort of wrongful animus creating
Finally, even if the evidence of congressional intent were less clearcut, I would be persuaded to resolve any ambiguity in favor of an actual-malice standard. It scarcely needs repeating that punitive damages are not a "favorite of the law," see supra, at 58, owing to the numerous persuasive criticisms that have been leveled against the doctrine. The majority reasons that these arguments apply to all awards of punitive damages, not just to those under § 1983; while this is of course correct, it does little to reduce the strength of the arguments, and, if they are persuasive, we should not blindly follow the mistakes other courts have made.
Much of what has been said above regarding the failings of a punitive damages remedy is equally appropriate here. It is anomalous, and counter to deep-rooted legal principles and common-sense notions, to punish persons who meant no harm, and to award a windfall, in the form of punitive damages, to someone who already has been fully compensated.
This argument is particularly powerful in a case like this, where the uncertainty resulting from largely random awards of punitive damages will have serious effects upon the performance by state and local officers of their official duties.
Moreover, notwithstanding the Court's inability to discern them, there are important distinctions between a right to
JUSTICE O'CONNOR, dissenting.
Although I agree with the result reached in JUSTICE REHNQUIST's dissent, I write separately because I cannot agree with the approach taken by either the Court or JUSTICE REHNQUIST. Both opinions engage in exhaustive, but ultimately unilluminating, exegesis of the common law of the availability of punitive damages in 1871. Although both the Court and JUSTICE REHNQUIST display admirable skills in legal research and analysis of great numbers of musty cases, the results do not significantly further the goal of the inquiry: to establish the intent of the 42d Congress. In interpreting § 1983, we have often looked to the common law as it existed in 1871, in the belief that, when Congress was silent on a point, it intended to adopt the principles of the common law with which it was familiar. See, e. g., Newport v. Fact Concerts,
Once it is established that the common law of 1871 provides us with no real guidance on this question, we should turn to the policies underlying § 1983 to determine which rule best accords with those policies. In Fact Concerts, we identified the purposes of § 1983 as pre-eminently to compensate victims of constitutional violations and to deter further violations. 453 U. S., at 268. See also Robertson v. Wegmann, 436 U.S. 584, 590-591 (1978); Carey v. Piphus, supra, at 254-257, and n. 9. The conceded availability of compensatory damages, particularly when coupled with the availability of attorney's fees under § 1988, completely fulfills the goal of compensation, leaving only deterrence to be served by awards of punitive damages. We must then confront the close question whether a standard permitting an award of unlimited punitive damages on the basis of recklessness will chill public officials in the performance of their duties more than it will deter violations of the Constitution, and whether the availability of punitive damages for reckless violations of the Constitution in addition to attorney's fees will create an
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
JUSTICE REHNQUIST's dissent faults us for referring to modern tort decisions in construing § 1983. Its argument rests on the unstated and unsupported premise that Congress necessarily intended to freeze into permanent law whatever principles were current in 1871, rather than to incorporate applicable general legal principles as they evolve. Post, at 65-68; see also post, at 92-93 (O'CONNOR, J., dissenting). The dissents are correct, of course, that when the language of the section and its legislative history provide no clear answer, we have found useful guidance in the law prevailing at the time when § 1983 was enacted; but it does not follow that that law is absolutely controlling, or that current law is irrelevant. On the contrary, if the prevailing view on some point of general tort law had changed substantially in the intervening century (which is not the case here), we might be highly reluctant to assume that Congress intended to perpetuate a now-obsolete doctrine. See Carey v. Piphus, 435 U.S. 247, 257-258 (1978) ("[O]ver the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under § 1983 as well") (footnote omitted); Adickes v. S. H. Kress & Co., 398 U.S. 144, 231-232 (1970) (BRENNAN, J., concurring and dissenting); Pierson, supra, at 555 (citing modern authority for "the prevailing view in this country'); Wood, supra, at 318-319, and n. 9; Tenney, supra, at 375, and n. 5. Indeed, in Imbler we recognized a common-law immunity that first came into existence 25 years after § 1983 was enacted, 424 U. S., at 421-422. Under the dissents' view, Imbler was wrongly decided.
"Moreover, there is available a more effective means of deterrence. By allowing juries and courts to assess punitive damages in appropriate circumstances against the offending official, based on his personal financial resources, the statute [§ 1983] directly advances the public's interest in preventing repeated constitutional deprivations. In our view, this provides sufficient protection against the prospect that a public official may commit recurrent constitutional violations by reason of his office." Id., at 269-270 (footnote omitted).
Similarly, in Carlson v. Green, 446 U.S. 14 (1980), we stated that punitive damages would be available in an action against federal officials directly under the Eighth Amendment, partly on the reasoning that since such damages are available under § 1983, it would be anomalous to allow punitive awards against state officers but not federal ones. Id., at 22, and n. 9. See also Adickes v. S. H. Kress & Co., supra, at 233 (BRENNAN, J., concurring and dissenting); Carey v. Piphus, supra, at 257, n. 11; Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460 (1975) (punitive damages available under 42 U. S. C. § 1981).
JUSTICE REHNQUIST's dissent, without squarely denying that punitive damages are available under § 1983, does its best to cast doubt on the proposition. It argues that the phrase "for redress" at the end of the section means that Congress intended to limit recovery to compensatory damages. Post, at 85; see n. 1 supra. This novel construction is strained; a more plausible reading of the statute is that the phrase "or other proper proceeding for redress" is simply an expansive alternative to the preceding phrases "action at law" and "suit in equity," intended to avoid any unwanted technical limitations that might lurk in the other phrases.
Next JUSTICE REHNQUIST points to two other statutes enacted in 1863 and 1870 that provided expressly for punitive remedies. Post, at 85-86. Neither of these statutes enacted a punitive damages remedy as such, although they did create other forms of punitive civil remedies. The Act of March 2, 1863, § 3, 12 Stat. 698, created a civil fine for fraudulent military claims, apparently intended to stimulate suit by private attorneys general. The Act of July 8, 1870, § 59, 16 Stat. 207, was the treble damages provision of the revised patent code. These statutes do not support JUSTICE REHNQUIST's speculation that Congress acted expressly when it intended to approve punitive damages, since both statutes created new remedies not available at common law; moreover, they undercut his argument that Congress was hostile to punitive civil remedies in favor of private parties.
Finally JUSTICE REHNQUIST argues that Congress would not likely have approved "this often-condemned doctrine" in the 1871 Civil Rights Act. Post, at 84. This speculation is remarkable, to say the least, given that Congress did approve a punitive civil remedy in an 1870 Civil Rights Act. Act of May 31, 1870, § 2, 16 Stat. 140 (creating private cause of action for fixed penalty on behalf of persons suffering racial discrimination in voting registration). Cf. 1889 Colo. Sess. Laws 64 (enacting punitive damages statute, including awards for "wanton and reckless disregard," five years after state court held against doctrine). At any rate, the punitive damages debate, though lively, was by no means one-sided. See, e. g., Missouri Pacific R. Co. v. Humes, supra, at 521-523; Linsley v. Bushnell, 15 Conn. 225, 235-237 (1842); Frink & Co. v. Coe, 4 Greene 555, 559-560 (Iowa 1854); Chiles v. Drake, 59 Ky. 146, 152-153 (1859); Lynd v. Picket, supra, at 200-201; Taylor v. Grand Trunk R. Co., 48 N.H. 304, 320 (1869), overruled, Fay v. Parker, 53 N.H. 342 (1872); Mayer v. Frobe, 40 W.Va. 246, 22 S. E. 58 (1895); Cosgriff Brothers v. Miller, 10 Wyo. 190, 236-237, 68 P. 206, 216-217 (1902). See also Tillotson v. Cheetham, 3 Johns. 56, 63-64 (N. Y. 1808) (Kent, C. J.).
We note in passing that it appears quite uncertain whether even JUSTICE REHNQUIST's dissent ultimately agrees with Smith's view that "ill will, spite, or intent to injure" should be required to allow punitive damages awards. JUSTICE REHNQUIST consistently confuses, and attempts to blend together, the quite distinct concepts of intent to cause injury, on one hand, and subjective consciousness of risk of injury (or of unlawfulness) on the other. For instance, his dissent purports to base its analysis on the "fundamental distinction" between "wrongful motive, actual intention to inflict harm or intentional doing of an act known to be unlawful," versus "very careless or negligent conduct," post, at 60-61 (emphasis added). Yet in the same paragraph, the dissent inaccurately recharacterizes the first element of this distinction as "acts that are intentionally harmful," requiring "inquiry into the actor's subjective motive and purpose." Post, at 63-64. Consciousness of consequences or of wrongdoing, of course, does not require injurious intent or motive; it is equally consistent with indifference toward or disregard for consequences. This confusion of standards continues throughout the opinion. JUSTICE REHNQUIST's dissent frequently uses such phrases as "intent to injure" or "evil motive"; yet at several points it refers more broadly to "subjective mental state" or like phrases, and expressly includes consciousness (as opposed to intent) in its reasoning. Post, at 63, n. 3, 71-72, n. 7, 72-73. More telling, perhaps, is its citation of cases and treatises, which frequently and consistently includes authority supporting (at most) a consciousness requirement rather than the "actual intent" standard for which the opinion purports to argue elsewhere. See e. g., post, at 76-77, n. 10, 78-84, n. 12.
If JUSTICE REHNQUIST does indeed mean to propose a standard reaching subjective consciousness as well as actual injurious intent, one wonders why the instructions given in this case, supra, at 33, do not meet his standard. It is hard to see how Smith could have disregarded or been indifferent to the danger to Wade unless he was subjectively conscious of that danger. If JUSTICE REHNQUIST stands by his "fundamental distinction" and his use of authority, then, he has no apparent reason to dissent from our judgment.
"Malice," as used by courts and lawyers in the last century, was a hopelessly versatile and ambiguous term, carrying a broad spectrum of meanings. See generally, e. g., 2 J. Sutherland, Law of Damages § 394 (3d ed. J. Berryman, 1903); 25 Cyclopedia of Law and Procedure 1666-1669 (1907). As the dissent correctly states, post, at 60-64, n. 3, in some instances (especially when it was modified by terms such as "actual" or "express," or in criminal law, where terms were generally more strictly construed than in civil law), it mean what the dissent says it meant — actual ill will, spite, or intent to injure. On the other extreme, in tort law, it was often used without modification to mean what was sometimes called "implied malice" — a purely fictional malice that was conclusively presumed to exist whenever a tort resulted from a voluntary act, even if no harm was intended. The term was sometimes, though not often, used in this fictional sense as a ground for punitive damages. E. g., Childers v. San Jose Mercury Printing & Publishing Co., 105 Cal. 284, 289, 38 P. 903, 904-905 (1894). In other cases it was explained to mean an intent to do the act that caused the injury, as opposed to intent to cause the injury itself. E. g., Goetz v. Ambs, 27 Mo. 28, 32-33 (1858). More commonly in the punitive damages context, the term meant something in between fictional malice and actual injurious intent — "that form of malice . . . where, without `deliberate mind' or `formed design,' the offender has been so grossly and recklessly negligent, so wantonly indifferent to another's rights, that he should be required to pay damages in excess of mere compensation as a punishment and example." Press Pub. Co. v. McDonald, 63 F. 238, 246 (CA2 1894). Accord, e. g., Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202, 214 (1859); South & N. A. R. Co. v. McLendon, 63 Ala. 266, 273-275 (1879); Yerian v. Linkletter, 80 Cal. 135, 138, 22 P. 70, 71 (1889) (Paterson, J., concurring); Cameron v. Bryan, 89 Iowa 214, 219, 56 N. W. 434 (1893); Lynd v. Picket, 7 Minn., at 200-202.
There was considerably less ambiguity or confusion concerning the meaning of "wantonness" in tort law:
"Wanton means reckless — without regard to the rights of others. . . . Wantonly means causelessly, without restraint, and in reckless disregard of the rights of others. Wantonness is defined as a licentious act of one man towards the person of another, without regard to his rights; it has also been defined as the conscious failure by one charged with a duty to exercise due care and diligence to prevent an injury after the discovery of the peril, or under circumstances where he is charged with a knowledge of such peril, and being conscious of the inevitable or probable results of such failure." 30 American and English Encyclopedia of Law 2-4 (2d ed. 1905) (footnotes omitted).
The last sentence of that definition could have been written with this case in mind. See also, e. g., 40 Cyclopedia of Law and Procedure 292-295 (1912). The word was used with the same meaning in the punitive damages context. See, e. g., Texarkana Gas & Electric Light Co. v. Orr, 59 Ark. 215, 224, 27 S. W. 66, 68 (1894); Welch v. Durand, 36 Conn. 182, 184-185 (1869); Southern Kansas R. Co. v. Rice, 38 Kan. 398, 403-404, 16 P. 817, 820 (1888).
Finally, "willfulness" did not mean intent to cause injury, but only voluntary action:
"Wilful . . . generally, as used in courts of law, implies nothing blamable, but merely that the person of whose action or default the expression is used is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this: that he knows what he is doing, and intends to do what he is doing, and is a free agent. And wilfully does not imply that an act done in that spirit was necessarily a malicious act. . . ." 30 American and English Encyclopedia of Law 529-530 (2d ed. 1905) (footnote omitted).
"Wilful neglect or negligence has been defined as that degree of neglect arising where there is a reckless indifference to the safety of human life, or an intentional failure to perform a manifest duty to the public, in the performance of which the public and the party injured had an interest." Id., at 535 (footnote omitted).
See also, e. g., 40 Cyclopedia of Law and Procedure 944-947 (1912). Again, the punitive damages cases bear this reading out. Cameron, supra, at 219, 56 N. W., at 434; Goetz, supra, at 32-33; Chiles v. Drake, 59 Ky., at 152-155; Peoria Bridge Assn. v. Loomis, 20 Ill. 235, 251 (1858).
JUSTICE REHNQUIST also cites Day v. Woodworth, 13 How. 363, 371 (1852), in support of an actual-intent requirement. Post, at 70. The language used in that case ("wanton and malicious, or gross and outrageous") was precisely the precedent that the Philadelphia Court was exegeting in the passage quoted in text, when it held that "malice" includes "criminal indifference." Moreover, the Day case did not present any issue of punitive damages; the Court discussed them merely as a sidelight to the costs-and-fees issue presented.
JUSTICE REHNQUIST also relies on a four-sentence capsulization by the Reporter of Decisions of our unreported decision in Western Union Telegraph Co. v. Eyser, 91 U.S. 495, decided the same day. While the Reporter's summary does speak of the absence of "intentional wrong," id., at 496, the factual context suggests that the basis of decision was the jury instruction that ordinary negligence would warrant punitive damages, combined with the fact that the defendant had taken some affirmative (though insufficient) steps to avoid injury to passersby. Thus, in context, the reference to "intentional wrong" is entirely consistent with the Milwaukee decision's test of "conscious indifference"; the defendant in Western Union was not indifferent to injury, but instead plainly intended to avoid injury.
JUSTICE REHNQUIST's dissent relies on two later decisions of this Court, neither of which supports it. Post, at 74-75. In Lake Shore & M. S. R. Co. v. Prentice, 147 U.S. 101 (1893), the issue was whether a corporation could be liable in punitive damages for the tort of its employee. The Court, reasoning largely from general principles of respondeat superior, held that such vicarious liability could exist only when the employer had authorized or ratified the tort. In so doing, however, it expressly reaffirmed as "well settled" the general standard announced in the Philadelphia case, including liability for "criminal indifference." 147 U. S., at 107. JUSTICE REHNQUIST cites a passage quoting from one state case suggesting an intent requirement, post, at 74, but he omits to mention the court's extensive quotations from Philadelphia and Milwaukee, 147 U. S., at 112-113, and its express approval of and quotation from other state cases stating unequivocally that an employer can be liable for its own recklessness in hiring unfit employees, id., at 114-116. See also n. 9, supra. In Scott v. Donald, 165 U. S., at 71-90, the issue was whether there was a sufficient amount in controversy. The Court held that allegations of "intentional, malicious and repeated interference" with federally protected rights, id., at 89, were enough, if proved, to warrant punitive damages. The Court undertook no statement of a general standard for punitive damages beyond noting the unsurprising principle that such damages are awardable on proof of actual evil motive, id., at 86. Under the allegations, of course, no question of liability for less culpable conduct was presented.
"In what case then may smart money be awarded in addition to the damages? The proper answer to this question . . . seems to be, in actions of tort founded on the malicious or wanton misconduct or culpable neglect of the defendant. . . .
"In this case the defendant was guilty of wanton misconduct and culpable neglect. . . . It is an immaterial fact that the injury was unintentional, and that the ball glanced from the intended direction. . . . [I]f the act is done where there are objects from which the balls may glance and endanger others, the act is wanton, reckless, without due care, and grossly negligent." Id., at 185.
In Frink & Co. v. Coe, 4 Greene 555 (Iowa 1854), punitive damages were awarded against a stage company for employing a known drunkard as a driver, the court saying:
"In a case of gross negligence on the part of a stage proprietor, such as the employment of a known drunken driver, and where a passenger has been injured in consequence of such negligence, we think exemplary damages should be entertained.
"If a stage proprietor or carrier is guilty of gross negligence, it amounts to that kind of gross misconduct which will justify a jury in giving exemplary damages, even where an `intent or design' to do the injury does not appear." Id., at 559 (emphasis in original).
Maysville & Lexington R. Co. v. Herrick, 76 Ky. 122 (1877), held that the trial court correctly refused to instruct the jury that "willful or intentional wrong" was required to award punitive damages in a railroad accident case, remarking:
"The absence of slight care in the management of a railroad train, or in keeping a railroad track in repair, is gross negligence; and to enable a passenger to recover punitive damages, in a case like this, it is not necessary to show the absence of all care, or `reckless indifference to the safety of . . . passengers,' or `intentional misconduct' on the part of the agents and officers of the company." Id., at 127 (ellipsis in original).
Accord, e. g., Cowen v. Winters; 96 F., at 934-935; Press Pub. Co. v. McDonald, 63 F., at 245-247; Morning Journal Assn. v. Rutherford, 51 F. 513, 514-515 (CA2 1892); Fotheringham v. Adams Express Co., 36 F. 252, 253-254 (CC ED Mo. 1888); United States v. Taylor, 35 F. 484, 488 (CC SD Ala. 1888); Malloy v. Bennett, 15 F. 371, 373-374 (CC SDNY 1883); Berry v. Fletcher, 3 F. Cas. 286, 288 (No. 1,357) (CC Mo. 1870); Alabama G. S. R. Co. v. Arnold, 80 Ala. 600, 608, 2 So. 337, 342 (1886); Texarkana Gas & Electric Light Co. v. Orr, 59 Ark., at 224, 27 S. W., at 68; Dorsey v. Manlove, 14 Cal. 553, 555-556 (1860); Florida Railway & Navigation Co. v. Webster, 25 Fla. 394, 419-420, 5 So. 714, 719 (1889); Jacobus v. Congregation of Children of Israel, 107 Ga. 518, 521, 33 S. E. 853, 855 (1899); Drohn v. Brewer, 77 Ill. 280, 282-283 (1875); Citizens' St. R. Co. v. Willoeby, 134 Ind. 563, 569-570, 33 N. E. 627, 629 (1893); Sawyer v. Sauer, 10 Kan. 466, 470 (1872); Goddard v. Grand Trunk R. Co., 57 Me. 202, 218 (1869); Lynd v. Picket, 7 Minn., at 200-202; Memphis & C. R. Co. v. Whitfield, 44 Miss., at 494-495, 500; Buckley v. Knapp, 48 Mo. 152, 161-162 (1871); Caldwell v. New Jersey Steamboat Co., 47 N.Y. 282, 296 (1872); Sullivan v. Oregon Railway & Navigation Co., 12 Or. 392, 404-406, 7 P. 508, 517 (1885) (dictum); Lake Shore & M. S. R. Co. v. Rosenzweig, 113 Pa. 519, 543-544, 6 A. 545, 552-553 (1886); Hart v. Charlotte, C. & A. R. Co., 33 S.C. 427, 435-436, 12 S. E. 9, 10 (1890); Haley v. Mobile & O. R. Co., 66 Tenn. 239, 242-243 (1874); Brooke v. Clark, 57 Tex., at 112-114; Thirkfield v. Mountain View Cemetery Assn., 12 Utah, at 82, 41 P., at 564-565; Earl v. Tupper, 45 Vt. 275, 286-287 (1873) (dictum); Borland v. Barrett, 76 Va. 128, 132-134 (1882); Pickett v. Crook, 20 Wis. 358, 359 (1866); Union Pacific R. Co. v. Hause, 1 Wyo. 27, 35 (1871).
JUSTICE REHNQUIST's assertion that a "solid majority of jurisdictions" required actual malicious intent, post, at 84, is simply untrue. In fact, there were fairly few jurisdictions that imposed such a requirement, and fewer yet that adhered to it consistently. JUSTICE REHNQUIST's attempt to establish this proposition with case citations, post, at 78-84, n. 12, does not offer him substantial support. Because the point is not of controlling significance, see n. 2, supra, we will not tarry here to analyze his citations case-by-case or State-by-State, but will only summarize the main themes.
Several of JUSTICE REHNQUIST's cases actually offer unequivocal support for the rule that punitive damages are available on a showing of negligence, recklessness, disregard for or indifference to the rights of others, and various other standards short of actual ill will or injurious intent. In this same vein, JUSTICE REHNQUIST continues to try to equate consciousness or knowledge with actual ill will or intent to injure, see n. 6, supra.
Other cases do not clearly support either JUSTICE REHNQUIST's view or ours. Some of these contain contradictory language in their formulations, indicating that the present distinction perhaps did not occur to the writers. Others support JUSTICE REHNQUIST's rule only if one makes the questionable assumption, see nn. 8, 9, supra, that terms like "malice," "wantonness," and "criminal" always meant actual intent to injure. Still others simply ruled on collateral questions (such as the admissibility of evidence of bad motive or of good faith) without purporting to state any general standard for punitive damages. Some were apparently limited to particular classes of torts. A comparison of this class of cases with those cited supra, this note, reveals that in many instances other decisions of the same courts clear up any ambiguity in favor of a recklessness or negligence standard.
A third class of cases are those in which the courts simply affirmed awards of punitive damages based on evidence of, or jury instructions requiring, actual malicious intent, without discussing whether a lesser showing might also be adequate. Often the cases in this category involved assault and battery or similar torts, where the facts presented little problem of negligence or recklessness. See also n. 11, supra. As with the previous category, many of the same courts spoke more directly in other cases, making it clear that injurious intent was not required.
Finally, even of those comparatively few cases that do seem to support JUSTICE REHNQUIST's view, many are of debatable authority. In nearly every State there was at least some late 19th-century authority supporting awards on less than ill will or intent to injure. Admittedly, in a few States this was the less accepted view, but in a substantial majority of jurisdictions the prevailing rule (as evidence by the cases cited supra, this note, and numerous other cases not listed here) was that no such actual malicious intent was required.
"If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe he sustained as a direct result of the conduct of the defendants . . . .
"In addition to actual damages, the law permits the jury, under certain circumstances, to award the injured person punitive and exemplary damages . . . .
"If you find the issues in favor of the plaintiff, and if the conduct of one or more of the defendants is shown to be a reckless or callous disregard of, or indifference to, the rights or safety of others, then you may assess punitive or exemplary damages in addition to any award of actual damages." Tr. 642-643 (emphasis added).
Although there is general agreement with the broad principle of § 908, Comment c, there is authority suggesting that the tort of malicious prosecution may have been a poorly chosen illustration of it. See, e. g., Adams v. Whitfield, 290 So.2d 49 (Fla. 1974); Jordan v. Sauve, 219 Va. 448, 247 S.E.2d 739 (1978).
In citing the cases in this footnote and in n. 20, infra, we intimate no view on any First Amendment issues they may raise.
Of course, there was a "technical," 19 American and English Encyclopedia of Law 623 (2 ed. 1901), definition of the term that had little to do with actual ill will, but which permitted such a mental state to be presumed from the mere occurrence of an injury. This virtually never was the basis for an award of punitive damages: if it had been, such damages would have been available in every tort action, which never was the rule in any jurisdiction. The Court does not seriously argue otherwise.
Moreover, malice was often the standard employed in jury instructions. E. g., Hays v. Anderson, 57 Ala. 374 (1876); Coleman & Newsome v. Ryan, 58 Ga. 132, 134 (1877); Jeffersonville R. Co. v. Rogers, supra; Lynd v. Picket, supra; Morely v. Dunbar, 24 Wis. 183 (1869). There is not the slightest question that a jury of lay persons would have understood the phrase as requiring actual ill will, desire to injure, or other improper motive on the part of the defendant. "Malice" was defined by a dictionary published at the approximate time § 1983 was enacted as "extreme enmity of heart; a disposition to injure others unjustly for personal gratification or from a spirit of revenge; spite; deliberate mischief." Stormonth's English Dictionary 584 (1885). See also Webster's Dictionary 804 (1869); Worcester's Dictionary 873 (1860); 2 Abbott's Law Dictionary 72 (1879) ("a malignant design of evil . . . is the idea attached to the word in popular use"). In short, the available authorities demonstrate that for purposes of punitive damages at the time of the 42d Congress, "malice" imported an actual ill will, intent, or improper motive requirement.
In a few cases decided roughly contemporaneously with the enactment of § 1983, the terms "wanton" and "willful" were used, together with other phrases, to define the proper standard for an award of punitive damages. The Court finds little "ambiguity or confusion" surrounding these terms, and concludes that they clearly indicate a "recklessness" standard. The cases and commentators disagree. As one treatise flatly states: "[T]he term `wanton' has no peculiar legal signification. It has various meanings, depending on the connection in which it is used." 40 Cyclopedia of Law and Procedure 292-293 (1912). The "connection in which [`wanton'] is used," ibid., in punitive damages cases virtually always reveals that the word was merely an alternative phrasing of the evil motive requirement. See, e. g., Pike v. Dilling, 48 Me. 539 (1861); Wilkinson v. Drew, 75 Me. 360, 363 (1883); Devine v. Rand, 38 Vt. 621 (1866); Boutwell v. Marr, 71 Vt. 1, 11, 42 A. 607, 610 (1899). In the few cases where context does not make clear what was meant by "wanton," several considerations suggest that it was likely that an inquiry into the motives and intentions of the defendant was intended. As a general proposition, when used in criminal contexts, wanton meant that "the act done is of a wilful, wicked purpose." 30 American and English Encyclopedia of Law 3 (2d ed. 1905). In deciding whether to impose the "quasi-criminal" punishment of punitive damages, this meaning likely would have been that intended by courts using the phrase.
Moreover, as used in a jury instruction — as occasionally was the case, see, e. g., Jeffersonville R. Co. v. Rogers, supra, at 124-125; Pike v. Dilling, supra — the term would have been understood by laymen to require some sort of evil or dissolute intention. See Stormonth's English Dictionary 1146 (1885); Webster's Dictionary 1490 (1869); Worcester's Dictionary 1645 (1860). "Wantonly" most frequently was defined as "lewdly" which in turn was regarded as synonymous with "wickedly." Webster's Dictionary 768 (1869); Worcester's Dictionary 834 (1860). The Court's claim that decisions predicating punitive damages on wantonness reflected a recklessness standard is unfounded. The word had no fixed meaning, and decisions using it must be examined individually; to the extent the phrase did have a common meaning, it was, particularly in the context of punitive sanctions, one implying some sort of bad intent.
Likewise, the Court's conclusion regarding the meaning of decisions using the phrase "willful" is unduly simplified. Like "wanton," the phrase had no fixed meaning, 29 American and English Encyclopedia of Law 114-117 (1895); for the meaning intended in a particular context, reference must be had to the decisions at issue, see n. 12, infra. If one must generalize, criminal law again is useful, given the "quasi-criminal" character of punitive damages: "the word, as ordinarily used, means not merely voluntarily, but with bad purpose," 29 American and English Encyclopedia of Law 114 (1895). Even more important, however, is the fact that "willful" seldom, if ever, was an independent standard; rather, "willful injury" or "willfully illegal conduct" were the typical contexts in which the phrase appeared. As to these, even apart from the surrounding language of the punitive damages decisions, it was clear that "[t]o constitute wilful injury there must be design, purpose, intent to do wrong and inflict the injury." 30 American and English Encyclopedia of Law 536 (2d ed. 1905). And, of course, a "willful trespass" or other misdeed meant an intentionally wrongful act. Id., at 525-529. Thus, in jurisdictions using the term "willfully," the question generally was whether the defendant knowingly and intentionally harmed the plaintiff, or, alternatively, intentionally committed an act he knew to be tortious or unlawful. In both these cases, inquiry into the wrongful motive of the defendant plainly was demanded; of course, recklessness does not satisfy this requirement.
The Court's discussion of the term "willful negligence" is of little relevance to the common-law standard for punitive damages. The phrase seldom was used, particularly in the punitive damages context, and when it was, it justifiably encountered vigorous criticism. As one court remarked, the phrase "willful neglect" made as much sense as "guilty innocence." Kelly v. Malott, 135 F. 74 (CA7 1905). Faced with what appeared to be a self-contradictory term, the likely reaction of juries, courts, and Members of the 42d Congress would have been to focus on the unequivocal intent and malice requirements common at the time. In short, whatever general statements may have been made in some treatises regarding "wanton" and "willful," in determining the meaning of the terms in this context, a more careful inquiry is demanded. As the foregoing discussion and the cases discussed infra demonstrate, that inquiry makes it clear that the Court's recklessness standard was seldom used at the time of the enactment of § 1983.
Undoubtedly, the recklessness or objective unreasonableness of particular conduct will be evidence of the intent of the actor, see n. 8, infra. This point has been recognized by commentators on the subject. In 1 J. Sutherland, Law of Damages (1882), for example, the author states the general rule that "[t]here is . . . a marked difference legally, as there is practically, between a tort committed with and without malice; between a wrong done in the assertion of a supposed right, and one wantonly committed . . . ." Id., at 716. The author, however, also observed that "such recklessness or negligence as evinces malice or conscious disregard of the rights of others," will support a punitive damages award. Id., at 724 (emphasis added). It is a far different thing to say, as Sutherland does, that the defendant's recklessness is relevant to ascertaining ill will than it is to say, as the Court does, that this lack of care itself justifies punitive damages.
"If a cow kicks a man in the face, the consequent physical hurt may equal that from a kick in the face with a hob-nailed boot, but the `cussedness' of the cow raises no sense of outrage, while the malicious motive back of the boot kick adds materially to the victim's sense of outrage. If a man employs spite and venom in administering a physical hurt, he must not expect his maliciousness to escape consideration when he is cast to make compensation for his wrong."
See also Inman v. Ball, 65 Iowa 543, 546, 22 N. W. 666, 668 (1885) ("To warrant a jury in inflicting damages by way of punishment, it should appear that the act complained of was a willful or malicious wrong. . . . This is a very different state of mind and purpose from that of a person who has no more than good reason to believe his act is wrongful").
Our decision in Pierson v. Ray, 386 U.S. 547, 553-554 (1967), was based squarely on an attempt to determine what the 42d Congress intended in enacting § 1983. Chief Justice Warren wrote: "Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335 (1872)." Similarly, our decision in Imbler v. Pachtman, supra, at 421, was "predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it" (emphasis added).
A similar pattern is followed in other hornbooks popular at the time. The authors make reference to some decisions articulating an actual-ill-will standard, while citing as well to decisions accepting a recklessness rule. Compare J. Deering, Law of Negligence § 415, text accompanying n. 1 (1886), with id., at text accompanying n. 7; G. Field, Law of Damages § 78 (1876) ("The rule we have furnished not only requires that the act done should be injurious, and that actual loss be sustained thereby to the plaintiff, but also that it be willfully injurious. The animus of the wrongdoer is an important question to be considered in such cases, as it is in criminal cases. The wrong must be intended, and the result of a spirit of mischief, wantonness, or of criminal indifference to civil obligations, or the rights of others, from which malice may well be inferred"), with id., § 84, at 91, n. 4 (gross negligence applied in an Iowa case); F. Hilliard, Law of Remedies for Torts 598-599 (2d ed. 1873) (detailing different standards prevailing); 2 S. Thompson, Law of Negligence 1264-1265 (1880) (noting conflicting views regarding intent requirement).
Moreover, Professor Greenleaf, one of the most respected legal commentators of his time, entirely denied the existence of any doctrine of punitive damages. 2 S. Greenleaf, Law of Evidence § 253 (15th ed. 1892). While his view has prevailed in a substantial minority of American jurisdictions, see supra, in many States it concededly has not been followed. Its importance for our purposes, however, lies in the fact that it was the considered judgment of a respected scholar, published and available at the time § 1983 was enacted. Likewise, in 1 J. Sutherland, Law of Damages (1882), the author notes that "bad motive" is necessary for an award of punitive damages, while permitting such a motive to be inferred from proof of negligent or reckless conduct. Id., at 716, 724. Similarly, Judge Mayne's Treatise on Damages, indicated that the applicable standard for an award of punitive damages required some sort of improper motive. J. Mayne, Law of Damages 41 (1856).
The Court's treatment of law prevailing in 1871 relies principally upon state-court decisions from the 1880's and 1890's. These cases are admittedly somewhat more relevant to what the 42d Congress intended than the 20th-century cases cited by the Court; particularly if they explain prior decisions, these cases may reflect a well-settled understanding in a particular jurisdiction of the law regarding punitive damages. Yet, decisions handed down well after 1871 are considerably less probative of legislative intent than decisions rendered before or shortly subsequent to the enactment of § 1983: it requires no detailed discussion to demonstrate that a Member of the 42d Congress would have been more influenced by a decision from 1870 than by one from the 1890's. Accordingly, the bulk of the cases cited by the Court must be ignored; they simply illustrate the historical shift in legal doctrine, pointed out in text, from an actual-intent standard to a recklessness standard. If the Court is serious in its attention to 19th-century law, analysis must focus on the common law as it stood at the time of the 42d Congress. Here, notwithstanding the Court's numerous attempts to explain why decisions do not mean what they plainly say, it remains clear that in a majority of jurisdictions actual malice was required in order to recover punitive damages.
The Court, however, simply ignores the potential costs of the standard it embraces. This single-minded desire to deter unconstitutional official actions would not logically stop at recklessness; awarding punitive damages on the basis of mere negligence, or on a strict liability basis, might result, in the short term, in even less unconstitutional conduct. Yet, just as with the Court's recklessness standard, this deterrence would come at too costly a price. The Court is unable to give any reason, related to achieving deterrence at a cost sensibly related to benefits obtained, for its choice of a recklessness standard. It offers no response to the obvious distinctions between the standard for punitive damages in state-law tort actions and that in § 1983 actions, where § 1988 provides attorney's fees and where issues of federalism are involved. It does not even attempt to discuss the plainly relevant question whether insurance may be obtained against punitive damages awards.
While fully recognizing that the issue is a complex one, in my judgment the dangers that accompany the vague recklessness standard adopted by the Court far outweigh the deterrence achieved thereby. Recklessness too easily shades into negligence, particularly when the defendant is an unpopular official — whether because of his official actions, or for more invidious reasons. Punitive damages are not bound by a measure of actual damages, so when a jury does act improperly, the harm it may occasion can be great. These threats occur in an area — the provision of governmental services — where it is important to have efficient, competent public servants. I fear that the Court's decision poorly serves this goal, and that in the end, official conduct will be less useful to our citizens, not better.
Petitioner did not argue, and the Court properly does not decide, whether the $1,000 limit in 42 U. S. C. § 3612(c), also should apply in actions under § 1983. It seems likely that it would. While the Court does not say so, its opinion seems to derive its punitive damages remedy from "the laws of the United States," concluding sub silentio that they "are suitable to carry [§ 1983] into effect." 42 U. S. C. § 1988 (1976 ed., Supp. V). (This follows from the Court's apparent view that, for example, in one of the several States where punitive damages are not available, a § 1983 plaintiff could recover such damages, thus indicating that it is not "the common law . . . of the State wherein the court having jurisdiction of such civil or criminal cause is held," § 1988, that the Court is applying.) If, therefore, we are to apply a punitive damages remedy "in conformity with the laws of the United States," then the most relevant law is 42 U. S. C. § 3612(c), limiting punitive damages in certain civil rights actions to $1,000.