*1 OF MONTANA OF REVENUE DEPARTMENT KURTH RANCH et al. 6, 1994 19, 1994 June January Argued
No. 93-144. Decided *2 Stevens, J., Court, Blackmun, opinion of in which delivered the JJ., Rehnquist, J., Kennedy, Souter, Ginsburg, joined. post, and C. J., O’Connor, dissenting Scalia, p. post, p. opinions. filed J., Thomas, J., dissenting opinion, joined, post, p. filed in which 798. Tricht, Paul Van Assistant General of Special Attorney Montana, the cause for With him on the argued petitioner. Woodgerd, briefs was David W. Assistant Special Attorney General. A. Feldman
James the cause for United States argued curiae amicus With him on the reversal. brief urging Days Deputy General were Solicitor Solicitor General Bender. cause and filed brief
James H. Goetz argued respondents.* of the Court. delivered opinion
Justice
Stevens
tax on
This
whether a
case
pos-
presents
question
after
has
the State
session
assessed
drugs
illegal
violate the con-
a criminal
for the same conduct may
penalty
successive
stitutional
punishments
prohibition against
same
offense.1
Texas,
Storie,
Morales,
E.
William
As-
Attorney
*Dan
General of
*3
General,
a brief for the State of Texas et al.
Attorney
sistant
filed
reversal,
the
General for their
joined by
Attorneys
amici curiae urging
Arizona,
Lungren
Woods of
Daniel E.
respective States as follows: Grant
Colorado,
California,
of Connecti-
of
Gale Norton of
Richard Blumenthal
Florida,
cut,
Bowers of
Rob-
Georgia,
Robert A. Butterworth of
Michael J.
Hawaii,
Idaho,
of
of
A.
of
EchoHawk
Roland W.Burris
Larry
ert Marks
Indiana,
Iowa,
Illinois,
J.
Fanning
Campbell
Carter of
Bonnie
of
Pamela
Louisiana,
Kansas,
P.
E.
Ieyoub
T.
of
Richard
of
Michael
Robert
Steрhan
Minnesota,
Maine,
Stenberg
III
Humphrey
Hubert H.
of
Don
Carpenter of
P.
of New
Tom Udall of New Mex-
Nebraska,
Jersey,
of
Frederick DeVesa
Carolina,
Island,
B. Pine of
ico,
of North
Rhode
Easley
Jeffrey
Michael F.
Dakota,
Carolina,
of South
Mark Barnett of South
Jan
T. Travis Medlock
Utah,
Doyle
and James E.
of Wisconsin.
Graham
1
subject
that “No
shall...
provides
person
The
Amendment
Fifth
life or limb ....”
to be twice
put
for the same offence
for
protects against
prosecution
Double
Clause
second
for the same offense
prosecution
a second
acquittal,
same offense after
See
conviction,
for the same offense.
punishments
after
and multiple
(1969).
Pearce,
its text
Although
North Carolina v.
limb,”
that
Amend
it is well settled
to “life or
only
mentions
harms
See,
g.,
e. Ex
monetary penalties.
parte
and
imprisonment
ment covers
(1989).
(1874);
S.
Halper,
States
Lange,
marijuana proceedings. criminal filed State those proceedings,
In one of in Montana District all respondents six charges against with drugs to possess each with Court, conspiracy charging or, (1987), §45-4-102 in Ann. sell, Mont. Code intent to sell, to of with the intent alternative, drugs possession not initially guilty, pleaded Each §45-9-103.8 respondent On July entered into plea agreement. but subsequently Kurth Judith Richard sentenced 1988, the court sen- or deferred suspended to and imposed Kurth prison members.9 other four family tences on the seek- filed a civil forfeiture action also attorney The county in the marijuana cash and used of equipment ing recovery not involved were drugs The confiscated operation. had de- law enforcement agents because action, presumably settled the after an inventory. Respondents them stroyed $18,016.83 to an forfeit agreement forfeiture action with of and various items equipment. cash bag marijuana, pound, 1/4 “Item #7:1 marijuana, grams, plastic bags #8: total 2230 “Item stems, marijuana leaves, parts, pounds approximately “Item #9: R., etc.” 145 at 66-67. B. R., 3, 5, 7, 9, 13; 145 B. at 64-65. Richard Kurth Plaintiff’s Exhs. dangerous (marijuana), Mont. charged drugs with criminal sale of was also possession dangerous drug §45-9-101 Ann. of a Code sell, §45-9-103, (marijuana) intent to solicitation to commit of with possession dangerous drug (marijuana) of a with intent fense of criminal 45-4-101, (hashish), sell, possession § of a dangerous drug and criminal § Plaintiff’s Exh. 3. 45-9-102. See Kurth, only respondent, adjudged guilty Because one Richard (the pleaded guilty conspiracy possession the offense of other five count), suggested standing argue has he has Montana possession tax on constitutes second same offense. Respondents possession charges counter withdrawal that Montana’s pursuant plea agreements prosecution pos bar a would second below, The issue was raised so we not it. session. do address
773 proceeding the new involved the assessment of The third dangerous drugs. Despite difficulties the DOR had on tax ultimately attempted applying time, the Act for the first in marijuana plants, $900,000 almost in taxes on to collect marijuana, pen- oil, interest, tar and hash harvested hash in adminis- The Kurths contested the assessments alties.10 automatically proceedings proceedings. were trative Those stayed September 1988,however, in when the Kurths initi- legal proceeding triggered by fourth the raid on ated the petition bankruptcy Chapter 11of the their farm: under 362(a). § Bankruptcy Code. See U. S. C. bankruptcy proceedings, objected the Kurths to the drug challenged proof unpaid of claim for taxes and
DOR’s constitutionality trial, of the Montana tax. After a Bankruptcy Court held of the assessment invalid as a most state law,11 matter of but concluded an assessment marijuana $181,000 1,811 ounces of harvested was author- by the Act. It held that ized assessment invalid under the Federal Constitution.
Relying primarily Halper, on United States v. Bankruptcy decided that thе assess- Court jeopardy. ment constituted a form of double The court re- jected argument penalty the State’s that the tax was not a designed because it was costs; recover law enforcement as noted, the court the DOR “failed to introduce one scintilla of government programs evidence as to cost of the above illegal drug costs of law enforcement incurred to combat precise figure $894,940.99. R., appears to be B. at 68. Ranch, In re Kurth $865,000,” Appeals’ figure “nearly Court of (CA9 1993), apparently F. 2d failed to take account of the $30,000 R., computation collected before of the final 145 B. assessment. at 68. 11Specifically, Bankruptcy Court held that the assessments on the marijuana plants marijuana live “arbitrary” oil were and “lacked Id., any basis fact.” at 69. portion noting activity.” After B. at 74. R., product’s eight times the in a tax resulted the assessment explained punitive char- that the the court value,12 market the tax was evident acter of historically regarded laws have been
“because promotes penal Act the tradi- nature, the Montana *7 deterrence, and of tional aims —retribution already applies is crime, which a the to behavior the tax prop- by of restraint Debtors’ for tax allows sanctions illegal finding possession requires of erty, of tax a the finding dangerous drugs scienter, of the and therefore illegal drug possession, promote of will elimination tax appears alter- relation the tax excessive and any especially assigned, purpose in the absence of nate developed by Fi- as to societal the State costs. record illegal possession nally, of for tax follows arrest drugs report is made law enforcement and the tax taxpayer, may may sign officers, who or not the report.” Id., at 75-76. “inescapable aspects conclusion” led the court to
These pun- purpose was deterrence tax statute’s and that the Id., ishment. at 76. Agreeing affirmed. with the Bank-
The District Court reasoning, ruptcy findings it concluded that Court’s “simply punishes Dangerous Drug Tax Act Montana criminal a second time for the same conduct.” In Kurths (D. Ranch, CV-90-084-GF, 365065 Mont., re Kurth WL 22). 23,1991) (reprinted App. Apr. at Pet. Cert. That portion imposed upon pounds is the “Shake” That tax “shake.” stems, leaves, parts marijuana plant refers to the and other loose tetrahydrocannabinol that have less value because of their lower levels of (THC), marijuana that the chemical substance in activates a user’s senses. Id., placed per pound. $200 66. Officials the market value shake at Thus, ounce, $1,600 per per $100 Montana when taxed the shake Id., eight times pound, it taxed it at its market value. at 72. accounting provide an its actual the DOR’sfailure to Bankruptcy damages convinced the or costs Court the Fifth Amendment’s Double assessments violated Ibid. Clause. Appeals affirmed, also for the Ninth Circuit The Court largely offer on the refusal to its conclusion State’s but based accordingly hold justifying tax, refused to evidence Ranch, 986 its In re Kurth face. the tax unconstitutiоnal court first determined 2dF. large penalty Halper, disproportionately civil can under jeopardy purposes. 2d, 986 F. at 1310. punitive for double opposed kind tax, is to some called a That the assessment controlling. cen- Id., at penalty, 1310-1311. is not inquiry Halper, determined, the court whether tral under damages rationally related to the the sanction inquiry 2d, That government 986F. at 1311. suffered. separate applies has been to cases in which there the. Kurths concluded that conviction, The court however.13 *8 accounting if the sanction an to determine were entitled to impermissible punishment, be- second constitutes an any evidence, it offer such held refused to cause the State Id., applied at 1312. to Kurths. tax unconstitutional as appeal, pending the Montana Su- was While case that preme state-court decisions reversed two lower Court Drug a of Dangerous Tax Act was form that the had held Dept, Revenue, 254 jeopardy. Sorensen v. State double (1992). jus- 29 the dissent two 836 2d Over 61, Mont. P. 13 hold this Court’s cases distinguished is that court It on this basis States, Minor v. United see marijuana nonpunitive, a federal ing Sanchez, U. 42 which United States (1969); 340 S. S. 396 U. 87 2d, 986 F. at 1311. convictions. previous not involve did activities, tax criminal acknowledged may legitimately that a State court 39, (1968)), ibid., v. S. 44 and that (citing Marchetti 390 U. analysis a when satisfy a civil sanction need not remedial 2d, Common (citing F a criminal conviction. 986 at apart from (1981)). Montana, Co. wealth Edison legislature Supreme that the had found Court tices, State penalty and that criminal, not a civil, to establish intended promoting purpose retri- than other a remedial tax had 2d, 31. The Id., at 836 P. at and deterrence. bution controlling, Halper both because it not found court ” “ rare case’ and because expressly ‘a rule for the announced penalty, Mont., at 67, a tax. civil case involved a that the court concluded Sorensen 2d, P. at 32-33. tax, the civil unlike not excessive tax was proof Halper, requires no the State’s at issue sanction part Mont., 67-68, on the State. remedial costs 2d, P. at 33. directly Supreme at odds decision The Montana Court’s proceedings federal in- in the the conclusion reached with volving granted certiorari re- We therefore the Kurths. Appeals. 509 the decision of Court view judgment. now affirm its We Ill Halper circum- we considered “whether and under what ‘punishment’ penalty may for the a civil constitute stances jeopardy analysis.” purposes S., of double 436. question does not decide the different Our answer question tax should be characterized as whether Montana’s punishment.
Halper separate was convicted of 65 violations of the crim- § involving statute, false each inal claims 18 U. C. S. demand in reimbursement for medical services worth for $12 years prison Halper After was sentenced two $3. *9 separate and fined $5,000, the Government filed action to penalty $2,000 recover a 65 civil each of the violations. (1982 II). § Supp. 31 ed., See U. S. C. 3729 The District recovery Court found that the $130,000 the statute author- ized “bore no ‘rational relation’ to the sum of the Govеrn- plus investigating ment’s its in actual loss costs $585 Halper’s prosecuting S., false claims.” U. at 439. In greater penalty times than 220 “more civil view, a court’s punish- qualified los[s] as measurable than the Government’s Jeopardy by Clause. Double barred ment” that Ibid. rejected the appeal we Govern- Court, direct
On
only ap-
Double
Clause
that
ment’s submission
proceedings,
imposed
reason-
punishment
plied
in criminal
assessing
only by
be identified
ing
violation “can
that its
the individual
sanctions
actual
of the
character
making
machinery
Id., at 447.14
state.”
by
are not
and ‘civil’
labels ‘criminal’
“the
assessment,
an
such
Accepting
District
importance.”
Ibid.
paramount
already has
findings,
who
“a defendant
we held that
Court’s
may
prosecution
not be sub-
punished in a criminal
been
that
to the extent
sanction
jected
civil
to an additional
fairly
remedial,
may
be characterized
second sanction
Id., at 448-449.
or retribution.”
as a deterrent
but
description
legislature’s
of a
Halper
that the
thus decided
possibility
it has
not foreclose
as civil does
statute
recognized Halper that a
in
punitive
We also
character.15
may
if it
“penalty”
in
be remedial
character
civil
so-called
government
aris-
merely
for its actual costs
reimburses the
449-450,
Id., ing
criminal conduct.
the defendant’s
from
however,
a sanction constitutes
noted,
that whether
We
as even remedial sanc
perspective,
from the defendant’s
not determined
(citing S.,
U.
n. 7
“sting
punishment.”
carry the
tions
(1943)).
Hess,
ex Marcus States
rel.
earlier
part
on an
Notably,
conclusiоn we relied
reaching
in charac
punitive
might be considered
recognizing that a tax statute
case
case,
S., at 443. That
purposes.
See 490 U.
ter
double
Franca,
the words
observed that
United States v. La
452. statutory penalty portion could be what to determine actual compensation for Government’s as sustained damages. may a tax whether
Halper however, consider not, did punitive. similarly be characterized
IV penalties, taxes forfeitures, and civil fines, civil Criminal government They generate reve- certain features: all share certain impose individuals, and deter on fiscal burdens nues, subject constitu- sanctions are of these behavior. All may government impose criminal not A tional constraints. by proof beyond establishing guilt a rea- first fines without (1970). Winship, A 397 S. 358 In re U. sonable doubt. Cf. may punished not for an offense defendant convicted imposed against penalty him for a nonremedial civil have proceeding. separate States v. in a United the same offense (1989). may Halper, A civil forfeiture violate S. 435 U. against proscription Eighth excessive Amendment’s (1993). States, U. 602 And a United 509 S. fines. Austin v. imposing may be invalid a tax unlawful conduct statute requirements compel taxpayers reporting its because States, 390 incriminate themselves. Marchetti v. United (1968). U. 39 S. activity general matter,
As a unlawfulness of an prevent Id., 44; not United States does its taxation. (1935); Constantine, U. S. James v. doubt Montana no could collect marijuana, possession example, if it its tax on the had previously, punished taxpayer offense, same proceeding indeed, or, if it had assessed the tax in the same Hunter, that resulted his conviction. Missouri v. (1983); Halper, S., U. see also S. 368-369 U. 450. punitive we Here, ask whether the tax has characteris- *11 Double Jeop- constraints it to the subject tics that ardy Clause. the Dou that a tax violated we have never held
Although In that one might.16 we have assumed Clause, ble Jeopardy we have requirements, of other constitutional the context validity. We taxes for constitutional examined repeatedly its tax because simply a invalidating against have cautioned or because the legislature’s enforcement oppressive might A. v. Hamil Co. Magnano was somehow suspect. motive (1934). Yet have ton, recognized we also 40, U. S. of the a time in the extension penalizing that “there comes as when it loses its character so-called tax features of the the characteristics of a mere with such becomes penalty and Id., Labor Child at (citing regulation punishment.” (1922)). Case, Tax comment, That 20, together that labels do not con statement with Halper’s unequivocal a tax is not indicates that in a double inquiry, trol is because it scrutiny simply from double jeopardy immune a tax. is constitutional protection that “[t]his
Halper recognized that “the character intrinsically personal,” a double jeopardy actual sanctions” can substantiate possible fines, S., at 447. Whereas penalties, violation. 490 U. sanctions, as taxes are are characterized readily forfeitures are motivated usually different because they typically Mitchell, Helvering example, for S. 391 Court taxpayer pay an provision requiring Act addi considered a Revenue deficiency any total due to fraud with percent of the amount tional penalty trig a tax. The Court assumed such could an intent to evade the punishment, it ger jeopardy protection if it were intended but double 50 per held was constitutional because the nevertheless statute Id., remedial, punitive. Al cent was not at 398-405. addition the tax at issue Mitchell penalty arguably better characterized though the tax, interchangeably a than a as sanction fraud Court described “sanction,” id., tax,” id., 405, 406, at an at an “addition to id., “assessment,” id., “tax,” making nothing of the and a at import potential distinction. Yet purposes. than rather punitive,
revenue-raising, punish- aas tax approaches labeled an exaction some point, whether Montana’s drug determine task is to and our ment, line. tax crosses rate of taxation neither high begin by noting
We marks this automatically deterrent purpose nor an obvious case, those although In this tax as a form punishment. at least consistent with are are dispositive, they factors of the assessment part A significant character. punitive re- market value —a drug’s times the more than eight in- That the Montana Legislature tax.17 markably high marijuana from possessing people deter tended *12 us, however, reminds The DOR beyond question.18 valid, as taxes on are such ciga- taxes that presumed many some alcohol, high are also both rettes and motivated 17 1,811 marijuana an estimated ounces of with The State recovered (that is, per $100 $46,000, marijuana at ounce of and taxed the value ounce), percent per for a greater $100 10 of market value or total tax drugs percent 400 $181,000. State taxed the about of their thus activities, legal goods on Compared value. to similar taxes market percent roughly percent 400 rate of 10 or Montana’s tax—assessed at a value, greater appears to be unrivaled. Even the market whichever is — supports which the DOR as by identified the United amicus taxes curiae, approach high. not See Brief for United do a level this States hypothetically, *13 Franca, S., 575 v. La conduct). 282 U. at also United States See illegal only against prosecuted those assessed (holding liquor that a tax thus avoid statutory grounds, liquor barred on or sale of was manufacture jeopardy principles question” whether double ing “grave the constitutional assessment). an precluded such §2590-(a)(2) tax, marijuana IRC federal Sanchez 20 In we examined a seq. (1964)), et §4741 that (since C. codified at 26 U. S. repealed, but last special tax paid a marijuana person to a who has the transfer of taxed statute, liability arose when the transferor’s registered. and Under the result, liability tax; his tax pay “[s]ince as a the transferee failed conduct, properly can be called criminal the tax not in effect rest on does S., at 45. civil rather than a criminal sanction.” a 21 question whether an ostensi therefore does not raise the This statute may bar a subse designed to inflict bly proceeding civil that is in character. See Justice admittedly proceeding that is quent con- for possessing marijuana been arrested who have sons to the Montana subject class of taxpayers entire stitute tax. are activities fundamentally upon illegal
Taxes imposed
revenue-raising
purpose
taxes with a pure
from
different
on
taxed
adverse effect
despite
their
are imposed
that
taxes
from mixed-motive
differ as well
they
But
activity.
activity
to deter a disfavored
both
impose
that governments
taxes, for exam-
money.
imposing cigarette
to raise
By
and
But be-
to discourage smoking.
wants
government
ple,
creating
benefits —such as
employment,
cause
product’s
tax
revenues—
demand,
providing
consumer
satisfying
will
that
harm,
as
government
are regarded
outweighing
as
manufacture, sale,
use of
cigarettes
long
allow
taxes that
and smokers
manufacturers,
sellers,
pay high
increase
revenue.
government
reduce
consumption
com-
when the taxed
activity
These
vanish
justifications
for the
forbidden,
revenue-raising purpose
legitimate
pletely
could
well served
such
might
equally
support
the fine
conviction.22
upon
by increasing
imposed
post,
dissent,
require
does
com-
804. Nor
the statute
us to
Scalia’s
“multiple punishments” imposed
in the same
permissibility
ment on
Lange, Wall.
(1874);
parte
cf. Ex
North Carolina
v.
proceeding,
Pearce,
(1969),
separate
imposed
since it involves
sanctions
in successive
proceedings.
case,
significant
sovereign
In this
it is
same
that criminalized
activity
imposed
Contrarily,
of oür
also
the tax.
most
cases confirm
activity
ing
prevent
that the unlawfiilness of an
does not
taxation in
its
United
prohibited by
sovereigns.
example,
volve taxes on acts
other
For
Constantine,
(1935),
States v.
S. 287
involved a federal excise tax
U.
Id.,
Likewise,
liquor
retail
state
on
sales
violated
law.
at 293.
States,
James (1961),
783 exceptional reason. for an additional tax is The Montana species property tax—that purports Although it to be storage dangerous drugs,” possession “tax on is, a (1987) §15-25-111 goods on is levied Ann. Code Mont. —it possesses the tax taxpayer owns nor when neither destrоyed presumably imposed. Indeed, the State is goods the tax on them in this case before contraband prop amounts to a confiscation If a statute that assessed. 312, 326 285 S. Donnan, Heiner v. U. erty unconstitutional, (1932); Coolidge, a tax 531, 542 274 U. S. Nichols v. questionable.23 A goods at least previously confiscated on longer and that goods that no exist “possession” of on tax lawfully possessed has an unmistakable taxpayer never criminals and no tax, punitive This character. as to be departs normal revenue laws so far from others, punishment. a form of come anoma- drug a concoction of tax is whole, as a
Taken respects from a standard in crucial far removed lies, too escape characterization assessment analysis.24 purpose of double holding out our cases also is borne sovereign proceedings and dual by different prosecutions successive does not prohibit Constitution Illinois, Bartkus v. See, g., e. 359 conduct. on the same sovereigns based v. (1959) (state federal); Abbate after prosecution U. S. 121 state). (1959) (federal after 187 prosecution 359 U. S. 23 tax is the market measures of the one of two alternative Curiously, be marketed. legally that cannot value of substance 24 Sanchez, U. S. 42 in United States v. 340 including this Court Courts — (1950) and deterrent nature on the punishing commented frequently —have (Utah Comm’n, 6,13 2d Sims v. State Tax See, 841 P. g., e. taxes. Revenue, 504, 515, 605 N. E. 2d Illinois 1992); 152 Ill. 2d Rehg Dept. v. (Iowa 1993); State 437, (1992); W. 2d Gallup, State 525, v. 500 N. Berberich, (S. 1986); Roberts, State v. 688, D. W. 2d v. 384 N. Durrant, (1991); 244 Kan. State P. 2d Kan. Kansas, sub nom. Dressel 1174, 1181, P. 2d cert. denied *15 V punish- fairly as сharacterized tax is Montana’s Because af- Appeals must be of judgment of the Court ment, may penalty recognized a that civil Halper, we firmed. are remedy to the State that costs imposed for actual as a be S., at 452. 490 U. conduct. defendant’s to the attributable points serve statutes out, tax Yet The Justice Chief Halper’s penalties, and civil quite from purpose different a determining was remedial the exaction whether of method a tax stat- of “simply in the case punitive does work Subjecting opinion). Mon- (dissenting Post, at ute.” penalties therefore Halper’s is drug for civil test tax to tana’s permit proper a such it were if inappropriate. Even in its assessment showing, claimed that has not Montana investigating, remotely approximates the cost even case roughly prosecuting Kurths, or that apprehending, they damages any caused State. actual relates computed any which Montana event, the formula inAnd regardless of the same been would have assessment the tax regardless damages and, indeed, State’s the amount any harm at all. it suffered whether may of remedial sanction that not the tax is kind This punishment Instead, it of a criminal offense. the first follow contemplation of consti- within is a second history “deep protection roots our that has tutional Halper, must jurisprudence,” therefore S., during prosecution or not at all. the first posses- proceeding initiated to collect a tax Montana equivalent drugs a successive sion of functional jeopardy placed prosecution the Kurths “for the same time offence.” second Appeals judgment affirmed. Court
isIt so ordered. Rehnquist, dissenting. Justice Chief doing so, the any it is giving indication Without existing have drastically We law. opinion alters Court’s subjected to double previously statute never today’s statute a state tax analysis, decision but under jeopardy. application violates double its down because struck *16 correctly recog- right It foot. the off on The Court starts Halper, U. S. opinion v. States in United our nizes that jeopardy possible (1989), nothing double says about one con- opposed fine like the to a civil tax, of a as concerns agree I with Court’s Halper. Ante, at 777. in fronted analysis, ef- with its Halper which, rejection mode of penalty or is remedial statute a whether to determine fort statute. of a tax fit the case punitive, simply not in does astray goes end and the the Court then 783. But Ante, at many of hodgepodge of ais of its result decision criteria — previous deci- squarely rejected our have which been qualifies deciding taxa statute in whether be used sions—to “punishment.” as Helvering Mitchell, 303 U. S. the case of
The Court cites subjected (1938), was a tax statute in which as one agree analysis. with the Court’s jeopardy IBut double arguably “penalty in Mitchell at issue statement that a tax.” fraud than as a sanction characterized better in this area other cases All of 16.1 our Ante, at n. alter the Mitchell Court the Court’s statement disagree 1 I with Ante, a question in tax. penalty there nately characterized by Mitchell Court to which language which was used n. 16. The the Court S.,U. where proposition is 303 for this are referred we summarizing times, only in context but word three uses the “tax” times, “tax” is the word first two As for the parties’ arguments. indict argument that the discussing the Government’s only in mentioned not raise the question did the tax for willful evasion of of Mitchell ment penalty purposes fraud for the proceeding the civil issue as same did simply said: judicata. The Court of res wilfully Mitchell not adjudication that did an not even “Since there was necessary whether tax, to decide is not defeat the attempt evade jeopardy a where statute of double involved claims law penalty” was in- a “civil denominated imposing was what proceeding separate based an following voked supra, ex States Mitchell, In for fraud. indictment (1943), Rex Trailer Co. Hess, 317 U. S. Marcus v. rel. jeopardy the double v. United supra, Halper, rejected; dou- in United States was claim upheld time. for the first jeopardy claim was ble wisely Appeals below, does the Court unlike Court, Halper analysis it is subject tax to the Montana Halper was unnecessary cor- whether determine thus dissenting). post, J., rectly at 802-805 decided. See (Scalia, by Halper, contemplated clearly case” “rare is not the This provision.” “fixed-penalty involve this tax nor does Halper, supra, we held that double Halper, at 449. penalty statute there or not the test whether approxima- more than an recover the Government enabled bringing book, actor to the fraudulent its costs tion of *17 compensation loss is the the Government’s for because penalty But here we are purpose statute. of civil a avowed purpose of a tax stat- and the statute, awith tax confronted by the costs Government recover the incurred is not to ute law, bringing for some violation to book but someone for conduct, or to or both. revenue deter is instead either raise (1938); Henry, g., 134, 305 U. S. Sonzin- See, e. Welch v. (1937). despite sky Thus, States, 300 U. S. v. United through attempt view case O’Connor’s Justice properly reasoning quite Halper post, em- lens, at ployed Halper whether exaction was to decide reme- Ibid. of fraud.” adjudication an would be decisive also of this issue such setting respondent’s a third time in out the word “tax” is mentioned proceeding that “this is barred the doctrine of argument under double tax, per addition... is not a but a because the 50 centum Ibid. punishment allegedly penalty intended as acts.” It fraudulent telling immediately to note that the Court thereafter denotes the 50% Id., at “sanction,” addition as a and not a tax. 398-399. punitive simply in the case of a tax does work dial or any benefit ac- need not be based on Tax statutes statute. any damage or cost incurred taxpayer or on corded taxpayer’s by a result of the activities. the Government Montana, Co. v. Edison Commonwealth 609, 622 in- analyzing statute, tax the instant Thus, [Kurths’] by “damages caused quiry into State’s dissenting), wrongful post, conduct,” at J., (O’Connor, unduly restrictive. is whether the Montana proper question to be asked Double under the a second tax constitutes already punished criminally. for conduct Clause right question, ante, 780, but reaches asks the
The Court wrong conclusion. support customarily enacted to raise revenue to Taxes are (“[T]axes government. ante, are at 779-780 the costs of Cf. forfeitures] penalties, [than fines, typically different pur- revenue-raising... usually they are motivated because may firmly be en- poses”). that taxes is also established It activity. suppress the taxed Constitu- acted deter or even regularly turned aside have been on such laws tional attacks Magnano Hamilton, previous A. Co. In in our decisions. against upheld example, the Court S. imposed by steep challenge process excise due oleomargarine during Washington processors State Sonzinsky depression. depths v. United of the upheld annual federal supra, an the Court taxing power of Con- exercise as valid firearms tax long established “it has been gress. there said The Court *18 purports to be an face Congress on its which that an Act of any less so because taxing power the is not exercise of suppress the restrict or or to tends tax is burdensome Sanchez, 340 U. S. thing In United States taxed.” marijuana tax on upheld former federal Court (1950), challenge against the tax per a that ounce rate of at the $100 doing, In so the Court penalty, than a true tax. a rather not question that a tax does beyond “[i]t serious is .noted discourages, regulates, merely it because be valid cease to Id,., And, activity at 44. definitely taxed.” deters even settled that 778-779,it is well ante, concedes, as the Court prevent its activity taxation. does of an the unlawfulness (1968); States, 390 U. S. Marchetti v. United (1935). 287, 293 Constantine, 296 U. S. States passing nod to. today gives these opinion The Court’s and a deter- high tax rate hold that proceeds to but cases, of the support the characterization purpose “lend rent then The Court at 781. punishment.” Ante, as tax “[ojther tax Montana unusual features” discusses penalty. as a criminal tax concludes, brands this which, so-called that the points to its conclusion first The Court ibid., crime, aof the commission is conditioned good disputes, reason. and for the State conclusion Rule Admin. rule, Mont. provision of the relevant 42.34.102(1)(1988), “shall tax return provides that the which acknowledges merely arrest,” of... hours within 72 be filed activity.2 illegal taxing an involved realities practical teachings Marchetti, Con- contrary quite Then, stantine, v. United and James justifications mixed-motive for
the Court states to raise revenue—vanish to deter both taxes— “when Ante, activity completely forbidden.” the taxed at 782. will face illegal drug possession taxing for potential Other schemes illegal, individ to be taxed sought activity Because the pitfalls. similar subject identify themselves voluntarily be expected
uals cannot respondents provides scheme cited the tax. The Minnesota of, crimi to, any stamps prior independent of tax purchase anonymous surprisingly, §297D.01 Not et seq. Stat. Minn. prosecution. nal money off that any collect “Doеs Minnesota argument at oral when asked sold?,” respondents stamps being counsel many . . . Not too scheme Tr. of Oral know answer. admitted, that he did not amidst laughter, 41. Arg. *19 is that the Court by identified “unusual feature”
A second owns or neither the taxpayer on drugs tax is levied ex- here, But the Court the time of taxation. possesses is not suggest- the Court Surely substance. form over alts the con- Kurths to keep the State must permit ing Constantine, Cf. tax its in order possession. traband supra, (“It on a busi- if one carrying would be strange at 293 to excuse himself be able of an excise should ness the subject in on the business carrying by plea from payment law”). “Dan- Montana’s although And he violating and storage pos- as a tax Tax” is described Drug gerous Act and of the the structure purpose it clear from session, is reve- of raising purpose for the legitimate that it was passed business. underground the profitable nue from Laws, Mont. ch. (preamble).3 assessment conclusion that an I do not Court’s dispute conceivable cir- under some could, a “tax” is labeled which Dangerous Drug provides: Act Tax the 1987 Montana preamble having commodities considerable “WHEREAS, dangerous drugs are dangerous large profitable and value, in Montana of a and the existence irrefutable; drugs and dangerous in expensive trade drug industry and manufacturing of or trad- endorse the ‘WHEREAS, the state does not drugs to be the use of such drugs and does not consider ing dangerous in impact upon the state recognizes the economic acceptable, but it dangerous drugs; and manufacturing selling of and generated ‘WHEREAS, of the revenue appropriate that some it is investigative efforts directed toward continuing tax be devoted to conducting identification, arrest, prosecution of individuals involved of dan- enterprises that affect distribution continuing criminal illegal drugs in gerous Montana. not wish
“THEREFORE, State of Montana does Legislature selling, manufacturing, and use notion that the give credence to the appropriate proper, but finds dangerous drugs legal or otherwise profit from drugs to tax those who impact of such view of the economic through providing proceeds of the tax drug-related dispose and to offenses burdening abiding taxpayers.” without law anticrime initiatives additional evaluations, youth are earmarked for collected from the tax Funds aftercare, juvenile detention facilities. chemical abuse assessment § Ann. 15-25-122 Mont. Code purposes of the “punishment” for constitute cumstances, *20 15, 779. The Ante, 778, and n. Clause. Double Constantine, finding in United States a similar made Court of chal- sort although of a different supra, context in the special validity of a was the lenge. case in that At issue dealing persons against the all tax levied excise $1,000 1. In contrary Id., at n. law. liquor to local business penalty than a rather striking an unlawful the as down tax on conditioned assessment was that the noted tax, the Court “highly exorbi- imposition that it was crime, and of a the Id., at 295. tant.” pres- persuasive in the not factors are
But the Constantine condition- I find the above, do not As discussed context. ent be fatal to arrest tо ing conduct and on criminal of the tax simply validity; reflects real- characteristic tax’s this ity illegal enterprise. the rate of taxing Furthermore, an Constantine, clearly supports petitioner here. taxation special alcohol tax on the excise sale $1,000 applicable compared great to the otherwise as when times respondent. Ibid. liquor such dealers as fee for retail $25 points compared are note- tax, Montana two to the When worthy. Constantine, no tax First, unlike the situation engaged in from otherwise collected individuals fee is or goes drug entire business without Thus, an business. illicit disproportion- tax is as Second, taxation. Montana tax in Court as the excise Constantine. additional ate that the bulk of the assessment— much of the fact makes eight imposed low-grade on the “shake”—was more than drug. Ante, But the market of the at 780. times value glosses that the tax on over the fact Court higher quality only product’s of that “bud” amounted to 80% market value.4 marijuana possession The Kurths were for their 130 ounces of taxed
“bud,” quality marijuana than the “shake.” higher a substance of approximately Bankruptcy Court found that the bud had market value of mari two on tax rates averaging the effective After rate Montana’s products, concludes juana the Court appears “unrivaled.” to be value market times of four inquiry proper may But the so. That be 780, 17. Ante, at n. it is but whether “unrivaled,” tax rate whether is not serving punitive explained as high can that it so types “sin” taxes compared purpose. similar When figures not so cigarettes, are these as alcohol items such espe shocking. arbitrary This is high deemed to be accorded deference cially given traditional both so fact taxation, and the regarding matters authorities state illegal will business amount substantial that a *21 altogether.5 escape taxation here the tax conclusion I the Court’s short, think purpose and very odds with the punishment much
ais previous deci- as our as well statute, of the Montana effect language of the reviewing and structure After sions. similar with comparing of taxation rate provision tax products, I wbuld reach types on lawful of sin taxes nonpe- has a tax contrary the Montana conclusion—that pur- legitimate raising well as as purpose revenue, of nal regarded deterring it should pose conduct, such purposes. genuine for double tax per of $100 minimum rate at a product was taxed $2,000 pound. The per value. ($1,600 per pound), or 80% market ounce per cigarette, or currently 1.2 cents cigarettes is on The federal tax 5701(b). not exceed § While does U. S. C. per package. 24 cents cigarette to boost the proposal cigarettes, current pack of a the cost in some cigarettes tax on to a total could lead per pack cents tax to 99 in this case for rate 80% utilized higher than the at a rate jurisdictions higher rate is consistent at a taxed marijuana That the shake is bud. inexpensive prod low-quality, very tax on a a fixed rate with the effect of vaccines, from 6 4131(b)(1) (fixed ranging on § tax C. See 26 U. S. uct. (fixed IV) (1988 ed., tax Supp. dose); §4681 26 U. S. C. per $4.56 cents to chemicals). ozone-depleting O’Connor, dissenting. Justice attempt creditors, the ex- their ranch from to save
In an farming. marijuana family “The turned to tended Kurth marijuana growing opera- largest expanded to the business by down law enforce- when shut tion in the of Montana State Ranch, In re Kurth October, authorities in 1987.” ment 1990). (Bkrtcy. were con- Kurths 61, 66 Ct. Mont. B. R. drug charges. sentenced on various state victed and During ranch, 1,811 authorities found the raid on the possession. marijuana in the Kurths’ ounces of harvested possession “[t]here is tax on the law, Under Montana dangerous drugs,” person possessing storage and “each storing dangerous drugs is liable for the tax.” Mont. Code §15-25-111(1) marijuana, In the case of Ann. drugs percent value of the tax is 10 of the market or $100 15-25-111(2). § per greater. Pursuant ounce, whichever Department of law, to this the Montana Revenue assessed a against argue, The Kurths $181,000 tax of Kurths. agreed, is a the courts below that this tax second prohibited the Double Clause. See Schiro v. “ (the (1994) Farley, ‘protects Clause U. S. ” against multiple punishments quoting for the offense,’ same (1969)). Pearce, North Carolina v. government may, illegal activity. course, See, *22 (1968). g., 39, e. Marchetti v. United 390 U. S. upheld, Congress’ taxing authority, we have as within fact, per marijuana. Sanchez, ounce tax on United States $100 v. (1950). power illegal activity But the 42, S. danger legislature carries with it the that the will use the punish participants engaging activity. tax to in that particularly рossession This is true of taxes assessed on the illegal drugs: drug Because most offenses involve the man possession, transportation, ufacture, or distribution of con might possession trolled substances, State use a tax on punish participant drug in a crime twice for the same certainly per conduct. We would examine a $100 ounce fine had been convicted who previously a person levied against with for consistency for marijuana possession and sentenced rel. Mar- States ex Cf. Clause. the Double (1943). Because in my Hess, 548-549 cus v. 317 U. S. such a distinction between is no constitutional there view on the case, in this a tax imposed tax at issue fine and the to double jeopardy drugs subject of illegal possession analysis. tax is not exempt that Montana’s however, hold,
To noth- Clause says under the Double Jeopardy from scrutiny of the tax is unconstitutional. whether imposition about ing civil sanction both a criminal and a may impose “Congress the double omission; act or jeop- the same respect twice, merely punishing attempting clause prohibits ardy for the same offense.” criminally, time to punish a second (1938) Mitchell, (emphasis U. S. Helvering v. shall added). Amendment “nor says any person The Fifth twice same offence to be put jeopardy,” for the be subject a criminal sim- following prosecution and a civil proceeding post, See n. is not a second “jeopardy.” ply But have recognized we J., dissenting). (Scalia, to denominate the States’ ability pro- constrains Constitution the criminal sо with dispense proce- as “civil” and ceedings e. g., See, in the Bill of embodied Rights. dure protections (1986). Illinois, 364, 368-369 Some gov- Allen 478 U. S. are so punitive they may exactions ernmental Ward, United States proceeding. in a (1980). And because the Double 242,248-249 Jeop- for the successive criminal proceedings Clause ardy prohibits not sanction a defendant offense, may same government which he has been already punished for conduct for insofar sanction is do so as the subsequent because to punitive, a criminal prohibited by would necessitate proceeding United States v. Halper, See Constitution. generally *23 puni- drug is Montana’s is whether question, then, a civil sanc- clear that make cases double Our tive. the extent punishment to considered tion will deterrence, and purposes retribution of serves objective. Id., at nonpunitive any furthering opposed to 539, n. 20 441 U. S. Wolfish, Bell v. also See 448-450. Mendoza-Martinez, 372 U. S. (1979); Kennedy v. Halper, of amount inas when, obtain This will disproportionate” to the “overwhelmingly sanction “is wrongful thus conduct and by damages caused making goal the Government of rationally to the related 449, 451. S., at 490 U. whole.” spend on vast sums Federal Governments State and Dept, Justice, g., e. U. S. See, drug activities. control Drug Data Sum- Statistics, Fact Sheet: of Justice Bureau mary year 1994) in fiscal (approximately billion (Apr. $27 1991). directly responsible some of these are The Kurths investigating, detecting, and raid- expenditures costs —the prosecuting and incar- price them operation, ing their part of prison sentences, and cerating who received those deterrence, and education, money-spent abuse nonpuni- legitimate ahas Montana The State treatment. activities. defraying of such the costs interest tive see supra, 444-446, 6;n. also Halper, v. States United Emerald Cut supra, 254; One Lot Ward, States United (1972);Rex Trailer 232,237 States, Stones (1956). For ex- 148, 153-154 S. States, Co. v. United apprehension, ample, readily indicate available statistics cost the will of the Kurths prosecution, incarceration Board See Montana $120,000. at least of Montana State Expenditures and Per-Transaction Control, Per-Unit Crime 22-23, System 15, 19, 21, Justice in the Montana Criminal (Montana (1993) Justice Criminal Tables 21 and Expenditures). every partici actually imposed measuring the costs
But illegal drug extent it be, pant trade would in the *24 game possible, complex so as to make the not worth even government approx must Thus, the resort to the candle. liquidated damages. Rex effect, imation—in it exacts See (“The supra, at 153-154 dam Trailer Co. v. United resulting government’s] injury may [the ages from be diffi impossible liqui ascertain, but is the function of cult or recovery damages provide dated a measure of such circumstances”); Halper, supra, United States v. at 452-453 (“Our concurring) permits imposition J., rule (Kennedy, ordinary penalty roughly pro a fixed in the case at least damage reasonably liquidated portionate caused or a to the amount”). Legislature has determined Montana marijuana per appropriate ounce of is an of its estimate $100 drug control, and at least 22 other costs of States have made marijuana approximately a similar determination and tax the same rate.* Appeals recognized imposition
The Court of possession marijuana on the Kurths’ would not relationship if the sanction bore some rational staggering fighting drug to “the costs associated with abuse country.” Ranch, in this In re Kurth 986 F. 2d (CA9 1993). “allowing But the court held that state impose any showing rough approx- tax, without some damages imation its actual costs, be sanction- would §40-17A-8(l) §39-28.7-102(1) (1993); *See Ala. Code Colo. Rev. Stat. 12-651(b)(l) (Supp. 1993); (1993); § §48- Conn. Gen. Stat. Ga. Code Ann. 15-6(1) § 63-4203(2)(a) 1993); (Supp. 1993); (Supp. Comp. Idaho Code Ill. §520/9(1) §453B.7(1) (1993); (Supp. 1994); Stat. Iowa Code Kan. Stat. Ann. 79-5202(a)(l) 1990); §47:2601(1) (West § (Supp. Supp. La. Rev. Stat. Ann. 4434(1) 1994); Ann., 1993); § Me. (Supp. Rev. Stat. Tit. Mass. Gen. Laws §8(1) 64K, §297D.08(1) 1994); (Supp. (1991); ch. Minn. Stat. Neb. Rev. Stat. 77-4303(l)(a) §372A.070(b)(l) § (1990); (1993); Nev. Rev. Stat. N. M. Stat. 7-18A-3A(5) § (1993); §105-113.107(1) (1992); Ann. N. C. Gen. Stat. N. D. §57-36.1-08(1) §450.2(1) (1993); Stat., (1992); Cent. Code Okla. Tit. R. I. §44-49-9(1) 1993); 159.101(b)(2) (Supp. § Gen. Laws Tex. Tax Code Ann. (1992); 59-19-103(l)(a) §139.88(1) (1992); § Utah Code Ann. Wis. Stat. 1993). (Supp. Ibid, (emphasis prohibits.” Halper penalty which ing a phrase, Court highlighted added). As evidenced analysis. step in the double skipped a Appeals exaction determining whether an we held Halper, two-part inquiry: entails punitive a criminal has sustained previously defendant “Where *25 subsequent sought in the penalty civil the penalty and goal of com- the to relation rational no bears proceeding ap- rather loss, but its for Government the pensating meaning of plain in the ‘punishment’ as qualify pears to accounting to an is entitled the defendant word, then the if to determine damages costs the Government’s punish- a second constitutes sought in penаlty the fact added). (emphasis 449-450 S., at ment.” the absence show first must the defendant words, In other the sanction amount relationship the between aof rational the burden objectives; nonpunitive government’s the with justify the sanction to government the to shifts then approach bifurcated This case. particular to reference pre- The good sense. question makes the double every statute state constitutionality which sumption of denominated a sanction that context in this means entitled presump- This nonpunitive. to be presumed be must civil as were government nugatory if the rendered would be tion nonpunitive fact is in sanction prove that required to defend- Rather, case. particular in a imposing it before applied punitive may be sanction that show must ant justify its required can government him before be the will Halper, it emphasized in As we imposition. satisfying litigant succeed will which “rare case” We at 449. analysis. Id., the constitutional prong of first courts because case such whether know not do prove its failing to for State faulted improperly below shown have though Kurths even damages actual rationally govern- the amount of the tax is not related to the objectives. legitimate nonpunitive ment’s problem by asserting “[s]ub- avoids this Court drug jecting Halper’s penalties Montana’s tax to test for civil inappropriate.” Ante, is . . . at 784. To reach this conclu- imposition drug is al- sion, the Court holds tax regardless ways punitive, of the nature of the offense or the consequences astounding. of this are offender. decision along The State of with about half of the other Montana— precluded imposing States —is now from ever person punished possessory drug who has been for a arrested, tried, offense. A defendant who is and convicted possession marijuana one ounce of cannot be taxed though even therefor, the State’s law enforcement costs $100 average in such a case $4,000. more than See Montana Expenditures presumably Criminal Moreover, Justice 24. anyone possession illegal drugs the State cannot tax providing panoply procedure pro- without the full of criminal *26 given tections in Fifth Amendments, found the and Sixth the holding proceeding “[t]he Court’s Montana initiated to possession drugs collect a tax on the of was the functional equivalent prosecution.” of a successive criminal Ibid. post, Ward, See 448 at S., 248; United States v. U. at 807 dissenting). J., (Scalia, Today’s entirely unnecessary preserve decision is indi- liberty, vidual because Excessive Fines Clause is avail- protect governmental overreaching. able to criminals from States, See v. United Austin U. S. Alexander (1998); 544 post, U. S. n. (1993); 803, dissenting). Browning-Ferris also See Indus- J., (Scalia, Disposal, Vt., Inc., tries Inc. v. Kelco 492 257, 283- of concurring part dissenting in (1989) (O’Connor, J., Clause). part) (discussing incorporation in of Excessive Fines today’s acutely by On the other hand, decision will be felt law-abiding taxpayers, seriously because it will undermine ability of the State and Federal Governments to collect impose our costs criminals immense recompense for the Court’s from respectfully dissent society. I therefore jurispru- jeopardy expansion double of our unwarranted judgment and re- below simply vacate I would dence. with this proceedings consistent for further the case mand Halper. opinion and joins, Thomas Justice whom with Scalia,
Justice dissenting. pro- Amendment Fifth Jeopardy of Clause
The Double subject same offence for the any person be shall “nor vides: life or limb.” put in twice to be remotely be mean jeopardy” not put does “To be prohibits, provision not multi- punished,” its terms so Compare multiple prosecutions. ple punishments, but which Representatives, proposal House text language the current similar substituted Senate except subject, in cases of person shall “No the Clause: trial for or one than one impeachment, more Cong. 1 Annals See same offence.” Cong., Sess., 1st Aug. 1789, 1st (1789); Journal, Senate Double The view 105, 119, multiple punishments is, as Justice prohibit does Clause observed, Frankfurter providing legislation by history. . . . For
“confirmed misconduct, enforceable the same two sanctions prose- proceedings, a conventional separate one proceeding aor civil the other forfeiture cution, *27 quite the Fifth when upon common debt, was as a action Congress. by do ... It would framed was Amendment regard of the Fifth framers proper for the to violence contemporaneously they en- to that assume Amendment legislation was offen- that to enact continued acted and jeopardy clause guarantees the double of sive to for ratification.” proposed they had which 555-556 537, Hess, Marcus ex rel. States (1943)(concurring opinion). component multiple-punishments is a there that belief
The parte Ex traced can be Jeopardy Clause Double court lower case, the In Lange, Wall. a and imprisonment year of one Lange to both sentenced under Office, Post bags from the stealing mail for fine $200 year of one sentence a maximum that authorized a statute Court, The to exceed $200. fine or a imprisonment statutory in excess acknowledging sentence that the Lange has corpus. habeas writ of authorization, issued a exclusively on decided though it were cited since been g., North Caro- e. Clause, see, Jeopardy Double basis of fact, (1969); n. Pearce, 395 U. 717, lina v. S. on decision rested Court opinion for the Miller’s Justice Process the Due and both law, common principles of the See Amendment. the Fifth Jeopardy Clauses Double opinion went out Lange, Wall., at 176, 178. exclusively the Double rely way not to its applied to deciding whether to avoid Clause, in order id., See involving or limb.” “life literally prosecutions not suffices alone Clause Process Due It is clear 170. process guarantee of decision, since support the Co. Ins. Mut. land, cf. law of provided Life Pacific concurring in J., (1991) (Scalia, Haslip, 499 U. S. 28-29 what- legislative authorization prior judgment), assures imposed. ever when, almost hardly clarified Lange was basis involving case in a century later a
three-quartеrs of already (a had prisoner who circumstances nearly identical contempt under prison was sentenced paid fine a $500 imprisonment), only fine permitted statute express reference without prisoner discharged the Court citation and with Jeopardy Clause Double the. (1943). Chief 50,51-52 Bradley, re Lange. See *28 uncertainty displays Bradley his dissent Stone’s Justice Lange his view well as regarding basis doctrinal —as Jeopardy it was Clause Double was the basis if the that wrong: resting regarded Lange here as parte far as Ex “So compel jeopardy to double ground would be that it on after prison remission sentence to serve the offender paid, I think its day it was which the same fine on rejected.” S., authority be reexamined should at 53. ago in United Lange Terms five decision and our
Between stated often our cases Halper, 490 U. S. v. States against protects suc both Clause Double that the punishments for the prosecutions successive cessive g., Pearce, v. Carolina See, e. North offense. same criminal (1980); supra, 717; Illinois v. Vitale, rep But Johnson, 493, 498-499 467 S.U. Ohio holding, and an into a not turn it of a dictum does etition against prohibition discussing the the cases examination Halper, the that, until multiple punishments demonstrates legislatively authorized succes invalidated Court never entirely dispositions consistent punishment. were sive exclusively derived proposition the restriction that with the legislative requirement process authoriza from the due pre expressed the restriction Indeed, some cases tion. supra, g., Johnson, 499, cisely See, fashion. e. (“[Protection punishmen[t] against is de cumulative n. 8 sentencing signed courts is discretion of to ensure by legislature”); Alber the limits established confined to (1981) (“[T]he ques 333, naz v. United constitutionally permissible punishments are tion of what punishments question of what from not different imposed”); Legislative States to be Branch intended (“No U; (1980) jeop DiFrancesco, S. double Lange presented parte ardy problem in Ex been would have punish provided Congress had that the offense there was if though imprisonment, is mul- fine and even able both *29 684, 445 U. S. v. United tiple punishment”); Whalen imposed by (1980)(“[T]he punishments question whether 688 charges upon criminal conviction a defendant’s after court a multiple resolved without unconstitutionally cannot be are determining Legislative has Branch punishments what judg- concurring in authorized”); J., at id., (Blackmun, Jeopardy ment) (“The Clause the Double function pre- multiple punishments challenging is to in cases serves charges, bringing prosecutor more from vent punishments, greater than imposing sentencing from court intended”) original); (emphasis in Legislative Branch (“The (1977) legislature 161, Ohio, 432 U. S. v. Brown Jeopardy define Clause Double under the free remains punishments”). fix crimes and Halper decided, ex- until however, truth,
To tell the penalties, “no-double-punishments” to civil rule tending the freestanding a that rule was whether did not much matter it implicit prohibition Double constitutional case) (as merely aspect of the an I think to be Clause legislative authorization. requirement of Process Clause Due Jeop- thought former, thе Double be the if it were Even prosecutions would criminal ardy ban on successive Clause’s against protection any additional surplusage distinct make prosecution, since imposed in a successive (It never been has prosecution be barred.1 would itself impos- practice commonplace imagined, course, punishments and incarcera- ing multiple authorized —fine See single prosecution is unconstitutional. tion—after authorized legislatively proceedings, Thus, context criminal in the proceeding, single in a imposed if permissible multiple punishments are See Missouri v. proceedings. if in successive impermissible but Halper, Hunter, United States (1983). v. S. 368-369 ante, case, see present in the opinion Court’s proceed civil in the context of distinction 778, attempt preserve Jeopardy Clause’s it —the Double basis for ings. But of course the textual proceeding a civil not exist: prosecutions prohibition of successive —does infra, at 807-808. jeopardy. See is not a second 139.) proceeding succes- civil swpra, But a DiFrancesco, (as if barred, even prosecution is not sive to imposition itself) in the potential to result Halper it has the Assortment One penalty. States See United aof (1984); Cut Lot Emerald One 354, 362 S. Firearms, U. Thus, S. States, 409 U. Stones United penalties, to civil no-double-punishments rule extending the than affirming more simultaneously it demanded while Halper gave the rule legislative fidelity intent, mere enjoyed. had never before of effect breadth already been had who doсtor Halper a medical involved stat- claims false punished the criminal under convicted and § filing *30 medicare claims. 287, for false ute, 18 U. S. C. false for the same be fined then he could was whether issue Act, provisions False Claims the civil claims .under Jeopardy §§3729-3731. the Double held that We S. C. the fine exceeded extent that prevented it, to Clause “ govern- nonpunitive ‘legitimate cover to was needed what ” quoting Bell v. Halper, 448, objectives,’ S., U. mental (1979). The Government’s 539, n. 20 441 U. S. Wolfish, prohibi- Halper constitutional was not that no contention in punishments multiple existed, but rather tion on pro- punishments out in a criminal applied meted to in ceeding. United States Brief United States See pp. found, I Halper, 87-1383, 11-12, 21-24. T. No. O. incoherent: if the Con- distinction find, to and continue multiple punishments, prohibits nature stitution punishment make should proceeding in which is joined Accordingly, unanimous I the Court’s no difference. Halper apply I opinion. the rule indeed, continued to I — my faithfully thought applied than the Court—in I it more Thomas, 491 U. S. next month Jones dissent the 388, 393 Halper’s analysis difficulty applying Montana’s prompted
Dangerous Drug ante- me to focus Tax has multiple-punishments question there is cedent whether As indicated Clause. component the Double see In Stone, did Chief Justice concluded—as above, I have see Frankfurter, Bradley, and Justice 318 U. S. re (1943)— Hess, Marcus v. ex rel. States keeps Due Process Clause Instead, is not. that there legislature, by the bounds established within the Excessive Punishments and Unusual the Cruel legis- upon place what those limits substantive Fines Clauses may be.2 lated bounds Halper is not error the conviction
Of course departing enough justify from it. But there alone knowledge, acquired from brief to that conviction added holding regime, erroneous experience that the new with the regu- strange judges produces endure, too results problematic judgments As larly sort. of the most demands perhaps Halper dodged bullet in the latter: We —or metaphor our lower- precise be that we thrust would more by leaving colleagues it to us and between court bullet — particular dollar level what determine at the lower courts to “legitimate nonpu- exceeded the Government’s the civil fine penalty. objectives” governmental and thus became nitive present however, Halper, case, In the S., at 452. See U. adjudicated alleged punishment fine that can be not an and so judicially level, tax; but rather a to a lower reduced *31 peculiar, though in- less grapple no different, with the we (or something-else) high that it is quiry: so a tax so When is enigmas Surely punishment? await us. further a obscurity from was rescued Excessive Fines Clause —which States, v. United Alexander decided, Halper was see after perso Clause to in (1993) (first applying case Supreme Court 558-569 v. United S. 606- proceedings); Austin 609 U. nam criminal (1993) (Clause judg forfeitures) may support applies well to civil — explain Halper, Indeed, may judgment in Halper. even ment in it opinion suggests that the Court language of that since much per- consequences applying a for the harsh motivated concern offender,” S., small-gauge “prolific but penalty transaction to a 449. experience we are from also learned have And we healthful) (and particularly strong
unwilling
take
Halper.
Jones
poured
for ourselves
out
we
medicine
are in store.
ones
even sterner
lesson, but
first
was the
the rela
Halper
confront
itself, we
present case, as
disallowing
crim
because
easy
a civil sanction
tively
task
many
already
imposed. But
been
punishment has
inal
being
case, will demand
including
for this
held
one
cases,
disallowing
because
more of us:
much
Although
imposed.
already
been
has
civil sanction
(without
suggested
optimistically
court has
least one lower
might
difference
elaborating)
be a constitutional
that there
Newby, 11
States v.
see
situations,
United
between
two
(CA3
prohibition
1993),
is a constitutional
if there
F. 3d
punishment cannot
punishments,
multiple
order
any
Accord,
States v.
possibly
difference.
make
(CA5 1991). The social
193, 200
Sanchez-Escareno, 950 2dF.
Halper-created multiple-
vindicating
fictional,
cost of
higher when criminal
prohibition
be much
punishments
will
pay
willing
no more
will be
penalties
stake, and we
are at
(nor
we)
been. Can a
lower courts have
than the
should
disciplined
altercation
for an
prison
has been
who
inmate
criminally
punished
subsequently
for the
guard
awith
(answering
supra,
Newby,
at 1145-1146
incident? See
same
paid
person
fine and been
yes).
$75,000
who
has
Can
commodity trading because of
permanently
from
disbarred
jail
subsequently
same
trading
for the
be sent
violations
(CA7
Furlett,
II proceed appears on opinion entire The Court’s question taxes is whether assumption the relevant that Drug Dangerous Tax Act pursuant to Montana’s assessed against prohibition successive the constitutional “violate Nonethe- Ante, at 769. same offense.” punishments for the marijuana addressing pages how Montana’s less, after 16 after- as an adds, almost punishment, the Court inflicts a tax proceeding initiated to collect thought: Montana “The equivalent of drugs functional possession was the placed the Kurths prosecution criminal successive Ante, the same offence.’” time ‘for a second at 784. is the for that statement cоnceivable foundation “pun- imposes any proceeding assumption which
implicit multiple-punishments meaning ishment” within is Clause component Double long parts company assumption with a prosecution. That courtesy including Halper, even the without cases, line of Although statements cases include goodbye. a few of our punishment is im- proceeding in which that a the effect g., Kennedy Mendoza-Martinez, posed see, e. criminal, “punishment” for the criterion of 144, 167 S. (and significantly significantly more purpose different applied government) the criterion than deferential to *33 (1980),put it Ward, 448 U. S. Halper. v. States way: this Congress intention to estab-
“[W]here an has indicated inquired whether penalty, further we have a civil lish purpose punitive statutory in either was so scheme regard negate to this intention. or effect as to ‘only inquiry, the clearest we have noted latter unconstitutionality of proof to establish could suffice quoting ground.”’ Id., 248-249, at on such a statute (1960) (citation Flemming Nestor, 603, 617 omitted). goals
Halper’s serves the on whether the sanction focus just one factor in the deterrence” is of “retribution and Kennedy-Ward 168-169, and one factor test, S., see 372 U. supra, dispositive, Ward, at 250-251. is not see alone severity prosecution” greater test of the “criminal multiple- why Halper precisely resorted to the is in fact punishments component the Double Clause. distinguished opinion the test used to deter- between proceedings civil,” S., are criminal or mine “whether thought searching analysis appropriаte and the more multiple-punishments in the context: correctly that this has “The Government observes Court [Kennedy-Ward] approach when followed this abstract determining procedural protections whether the proceedings given apply Amendment under a Sixth affixing appropriate proof standard of statute, proceedings, determining such and in whether double jeopardy protections applied. should be See United Ward, S., at 248-251. But while re- States U. statutory language, structure, course to and intent is appropriate identifying pro- inherent nature of a ceeding, determining safeguards or in the constitutional proceedings general accompany that must those as a approach suited to the context not well matter, the Jeop- safeguarded the Double interests’ the ‘humane multiple punishments.” proscription ardy Clause’s Ibid. Kennedy-Ward only ignores test and
The Court attempt Halper, to reconcile portion also does not *34 Helvering Mitchell, 303 in with our decision its conclusion (1938): payment goods their value and “Forfeiture money are other sanctions sums of fixed or variable [sic] recognized civil as enforcible which have been original proceedings revenue law of 1789. since the severity, spite comparative have such sanctions of their they against upheld are es- contention that been subject procedural sentially rules to the criminal and (citation governing prosecutions.” Id., at 400 omitted) cases). (citing proceeding that the if the Court were correct course,
Of particular in there would be no nature, was criminal below Assess- this as a double case. reason to refer to proceeding punishment in a civil tax of a criminal ment but all Clause, the Double would violate not criminal-procedure guarantees Fifth and Sixth of the it was be invalid whether or not Amendments. And would prosecution. preceded by The Court’s a traditional criminal ante, see isolation, assertion that it would be lawful contention that it is 778-779, thus contradicts the Court’s prosecution,” equivalent . criminal “the functional . . ante, at 784.
[*] [*] [*] Applying Kennedy-Ward pro- test to the Montana ceeding, I it constituted a second criminal do not find that Legislature prosecution. And since authorized the Montana addition criminal penalties posses- these taxes that principle did not violate these taxes marijuana, sion called the multiple-punishments due sometimes process The Constitu- Clause. of the Double Jeopardy component I reasons, more. For these respect- nothing tion requires dissent. fully notes 23-24. The United States Amicus Curiae could, 24-cent-per-pack cigarettes tax on example, that the current federal cents, plan, resulting 99 in a a new health be increased to total under easily surpass” percent tax “could the 80 rate that Montana burden that marijuana higher part consisting on the of the valued example, however, no “‘buds.’” Ibid. Government offers such of a equivalent tax to that cache of assessed the cоmbined buds lower n. supra. valued “shake.” See example, although preamble For the Act’s evinces clear motivation revenue, provide also tax raise indicates that the will for anticrime by “burdening” abiding initiatives instead of “law violators law acceptable; taxpayers”; dangerous drugs that use of is not and that the “give any Act manufacturing, is intended credence” notion that drugs Laws, selling, using legal proper. or 1987 Mont. ch. p. 1416. no Indeed, although deterrence. an interest extent sustained issue, this Court was at challenge double in United marijuana tax on federal $100-per-ounce steep (1950). Sanchez, Thus, high while States U. S. to the charac- lend support deterrent purpose rate and features, these tax as punishment, terization the tax puni- render necessarily do not themselves, and of Sonzinsky States, 506, 513- v. tive. Cf. the Montana statute however, set features, Other unusual tax is condi- this so-called First, taxes. from most apart That condition of a crime. commission on the tioned intent rather than and prohibitory of penal “significant relied Moreover, has the Court of revenue.”19 gathering its conclusion to support such a condition absence of on the rather than a crimi- civil, tax was federal that a particular only assessment not case, the tax In this sanction.20 nal, it also is exacted crime, of a on the commission hinges conduct arrested for the precise been has after the taxpayer Per- in the first place.21 rise to the tax obligation that gives (1935) Constantine, (concluding United States revenue-raising part intent in by penal instead of that a tax motivated illegal on his sum based pay an additional taxpayer had to because the