The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_144/93_144.zd2

Text File | 1994-06-05 | 18.4 KB | 375 lines

SUPREME COURT OF THE UNITED STATES
--------
No. 93-144
--------
DEPARTMENT OF REVENUE OF MONTANA, PETI-
TIONER v. KURTH RANCH et al.
on writ of certiorari to the united states court
of appeals for the ninth circuit
[June 6, 1994]

  Justice Scalia, with whom Justice Thomas joins,
dissenting.

  The Double Jeopardy Clause of the Fifth Amendment
provides: -nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb.-


                      I
  -To be put in jeopardy- does not remotely mean -to be
punished,- so by its terms this provision prohibits, not
multiple punishments, but only multiple prosecutions.
Compare the proposal of the House of Representatives,
for which the Senate substituted language similar to the
current text of the Clause: -No person shall be subject,
except in cases of impeachment, to more than one
punishment or one trial for the same offense.-  See 1
Annals of Cong. 434, 753, 767 (1789); 1 Senate Journal
105, 119, 130 (1789).  The view that the Double Jeop-
ardy Clause does not prohibit multiple punishments is,
as Justice Frankfurter observed,
-confirmed by history.  For legislation . . . providing
two sanctions for the same misconduct, enforceable
in separate proceedings, one a conventional criminal
prosecution, and the other a forfeiture proceeding or
a civil action as upon a debt, was quite common
when the Fifth Amendment was framed by Con-
gress. . . .  It would do violence to proper regard for
the framers of the Fifth Amendment to assume that
they contemporaneously enacted and continued to
enact legislation that was offensive to the guaran-
tees of the double jeopardy clause which they had
proposed for ratification.-  United States ex rel.
Marcus v. Hess, 317 U. S. 537, 555-556 (1943)
(Frankfurter, J., concurring).
  The belief that there is a multiple-punishments compo-
nent of the Double Jeopardy Clause can be traced to Ex
parte Lange, 18 Wall. 163 (1874).  In that case, the
lower court sentenced Lange to both one year of impris-
onment and a $200 fine for stealing mail bags from the
Post Office, under a statute that authorized a maximum
sentence of one year of imprisonment or a fine not to
exceed $200.  The Court, acknowledging that the
sentence was in excess of statutory authorization, issued
a writ of habeas corpus.  Lange has since been cited as
though it were decided exclusively on the basis of the
Double Jeopardy Clause, see, e.g., North Carolina v.
Pearce, 395 U. S. 711, 717, and n. 11 (1969); in fact,
Justice Miller's opinion for the Court rested the decision
on principles of the common law, and both the Due
Process and Double Jeopardy Clauses of the Fifth
Amendment.  See Lange, 18 Wall., at 170, 176, 178.
The opinion went out of its way not to rely exclusively
on the Double Jeopardy Clause, in order to avoid
deciding whether it applied to prosecutions not literally
involving -life or limb.-  See id., at 170.  It is clear that
the Due Process Clause alone suffices to support the
decision, since the guarantee of the process provided by
the law of the land, cf. Pacific Mutual Life Ins. Co. v.
Haslip, 499 U. S. 1, 28-29 (1991) (Scalia, J., concurring
in judgment), assures prior legislative authorization for
whatever punishment is imposed.
  The basis for Lange was hardly clarified when, almost
three-quarters of a century later and in a case involving
nearly identical circumstances (a prisoner who had
already paid a $500 fine was sentenced to prison under
a contempt statute that permitted only a fine or impris-
onment), the Court discharged the prisoner without
express reference to the Double Jeopardy Clause and
with only a citation of Lange.  See In re Bradley, 318
U. S. 50, 51-52 (1943).  Chief Justice Stone's dissent in
Bradley displays his uncertainty regarding the doctrinal
basis for Lange-as well as his view that if the basis
was the Double Jeopardy Clause it was wrong: -So far
as Ex parte Lange is regarded here as resting on the
ground that it would be double jeopardy to compel the
offender to serve the prison sentence after remission of
the fine on the same day on which it was paid, I think
its authority should be reexamined and rejected.-  318
U. S., at 53.
  Between Lange and our decision five Terms ago in
United States v. Halper, 490 U. S. 435 (1989), our cases
often stated that the Double Jeopardy Clause protects
against both successive prosecutions and successive
punishments for the same criminal offense.  See, e.g.,
North Carolina v. Pearce, 395 U. S., at 717; Illinois v.
Vitale, 447 U. S. 410, 415 (1980); Ohio v. Johnson, 467
U. S. 493, 498-499 (1984).  But the repetition of a
dictum does not turn it into a holding, and an examina-
tion of the cases discussing the prohibition against
multiple punishments demonstrates that, until Halper,
the Court never invalidated a legislatively authorized
successive punishment.  The dispositions were entirely
consistent with the proposition that the restriction
derived exclusively from the due-process requirement of
legislative authorization.  Indeed, some cases expressed
the restriction in precisely that fashion.  See, e.g.,
Johnson, 467 U. S., at 499, and n. 8 (-protection against
cumulative punishmen[t] is designed to ensure that the
sentencing discretion of courts is confined to the limits
established by the legislature-); Albernaz v. United
States, 450 U. S. 333, 344 (1981) (-the question of what
punishments are constitutionally permissible is not
different from the question of what punishments the
Legislative Branch intended to be imposed-); United
States v. DiFrancesco, 449 U. S. 117, 139 (1980) (-No
double jeopardy problem would have been presented in
Ex parte Lange if Congress had provided that the
offense there was punishable by both fine and imprison-
ment, even though that is multiple punishment-);
Whalen v. United States, 445 U. S. 684, 688 (1980) (-the
question whether punishments imposed by a court after
a defendant's conviction upon criminal charges are
unconstitutionally multiple cannot be resolved without
determining what punishments the Legislative Branch
has authorized-); id., at 697 (Blackmun, J., concurring
in judgment) (-The only function the Double Jeopardy
Clause serves in cases challenging multiple punishments
is to prevent the prosecutor from bringing more charges,
and the sentencing court from imposing greater punish-
ments, than the Legislative Branch intended-) (emphasis
in original); Brown v. Ohio, 432 U. S. 161, 165 (1977)
(-The legislature remains free under the Double Jeop-
ardy Clause to define crimes and fix punishments-).
  To tell the truth, however, until Halper was decided,
extending the -no-double-punishments- rule to civil
penalties, it did not much matter whether that rule was
a free-standing constitutional prohibition implicit in the
Double Jeopardy Clause or (as I think to be the case)
merely an aspect of the Due Process Clause requirement
of legislative authorization.  Even if it were thought to
be the former, the Double Jeopardy Clause's ban on
successive criminal prosecutions would make surplusage
of any distinct protection against additional punishment
imposed in a successive prosecution, since the prosecution
itself would be barred.  (It has never been imagined, of
course, that the commonplace practice of imposing
multiple authorized punishments-fine and incarcera-
tion-after a single prosecution is unconstitutional.  See
DiFrancesco, 449 U. S., at 139.)  But a civil proceeding
successive to a criminal prosecution is not barred, even
if (as in Halper itself) it has the potential to result in
the imposition of a penalty.  See United States v. One
Assortment of 89 Firearms, 465 U. S. 354, 362 (1984);
One Lot Emerald Cut Stones v. United States, 409 U. S.
232, 235 (1972).  Thus, by extending the no-double-
punishments rule to civil penalties, while simultaneously
affirming that it demanded more than mere fidelity to
legislative intent, Halper gave the rule a breadth of
effect it had never before enjoyed.
  Halper involved a medical doctor who had already
been convicted and punished under the criminal false
claims statute, 18 U. S. C. 287, for filing false medicare
claims.  The issue was whether he could then be fined
for the same false claims under the civil provisions of
the False Claims Act, 31 U. S. C. 3729-3731.  We
held that the Double Jeopardy Clause prevented it, to
the extent that the fine exceeded what was needed to
cover -`legitimate nonpunitive governmental objectives,'-
Halper, 490 U. S., at 448, quoting Bell v. Wolfish, 441
U. S. 520, 539, n. 20 (1979).  The Government's conten-
tion in Halper was not that no constitutional prohibition
on multiple punishments existed, but rather that it
applied only to punishments meted out in a criminal
proceeding.  See Brief for United States in United States
v. Halper, O. T. 1988, No. 87-1383, p. 11-12, 21-24.  I
found, and continue to find, that distinction incoherent:
if the Constitution prohibits multiple punishments, the
nature of the proceeding in which punishment is
imposed should make no difference.  Accordingly, I
joined the Court's unanimous opinion.  I continued to
apply the rule of Halper-indeed, I thought I applied it
more faithfully than the Court-in my dissent the next
month in Jones v. Thomas, 491 U. S. 376, 388, 393
(1989).
  The difficulty of applying Halper's analysis to Mon-
tana's Dangerous Drug Tax has prompted me to focus on
the antecedent question whether there is a multiple-
punishments component of the Double Jeopardy Clause.
As indicated above, I have concluded-as did Chief
Justice Stone, see In re Bradley, 318 U. S. 50 (1943),
and Justice Frankfurter, see United States ex rel.
Marcus v. Hess, 317 U. S. 537 (1943)-that there is not.
Instead, the Due Process Clause keeps punishment
within the bounds established by the legislature, and the
Cruel and Unusual Punishments and Excessive Fines
Clauses place substantive limits upon what those
legislated bounds may be.
  Of course the conviction that Halper was in error is
not alone enough to justify departing from it.  But there
is added to that conviction the knowledge, acquired from
brief experience with the new regime, that the erroneous
holding produces results too strange for judges to
endure, and regularly demands judgments of the most
problematic sort.  As to the latter: We dodged the bullet
in Halper-or perhaps a more precise metaphor would be
that we thrust our lower-court colleagues between us
and the bullet-by leaving it to the lower courts to
determine at what particular dollar level the civil fine
exceeded the Government's -legitimate nonpunitive
governmental objectives- and thus became a penalty.
See Halper, 490 U. S., at 452.  In the present case,
however, the alleged punishment is not an adjudicated
fine that can be judicially reduced to a lower level, but
rather a tax; and so we grapple with the different,
though no less peculiar, inquiry: when is a tax so high
(or so something-else) that it is a punishment?  Surely
further enigmas await us.
  And we have also learned from experience that we are
unwilling to take the strong (and not particularly
healthful) medicine that we poured out for ourselves in
Halper.  Jones was the first lesson, but even sterner
ones are in store. In the present case, as in Halper
itself, we confront the relatively easy task of disallowing
a civil sanction because criminal punishment has
already been imposed.  But many cases, including one
being held for this case, will demand much more of us:
disallowing criminal punishment because a civil sanction
has already been imposed.  Although at least one lower
court has optimistically suggested (without elaborating)
that there might be a constitutional difference between
the two situations, see United States v. Newby, 11 F. 3d
1143 (CA3 1993), if there is a constitutional prohibition
on multiple punishments, the order of punishment
cannot possibly make any difference.  Accord, United
States v. Sanchez-Escareno, 950 F. 2d 193, 200 (CA5
1991).  The social cost of vindicating the fictional,
Halper-created multiple-punishments prohibition will be
much higher when criminal penalties are at stake, and
we will be no more willing to pay it (nor should we)
than the lower courts have been.  Can a prison inmate
who has been disciplined for an altercation with a guard
subsequently be punished criminally for the same
incident?  See Newby, 11 F. 3d, at 1145-1146 (answer-
ing yes).  Can a person who has paid a $75,000 fine and
been permanently disbarred from commodity trading
because of trading violations subsequently be sent to jail
for the same violations?  See United States v. Furlett,
974 F. 2d 839 (CA7 1992) (answering yes).  Can a
person who has suffered civil forfeiture for violation of
law later be prosecuted criminally for the same viola-
tion?  See United States v. Tilley, 18 F. 3d 295 (CA5
1994) (answering yes).
  It is time to put the Halper genie back in the bottle,
and to acknowledge what the text of the Constitution
makes perfectly clear: the Double Jeopardy Clause
prohibits successive prosecution, not successive punish-
ment.  Multiple punishment is of course restricted by
the Cruel and Unusual Punishments Clause insofar as
its nature is concerned, and by the Excessive Fines
Clause insofar as its cumulative extent is concerned.  Its
multiplicity qua multiplicity, however, is restricted only
by the Double Jeopardy Clause's requirement that there
be no successive criminal prosecution, and by the Due
Process Clause's requirement that the cumulative
punishments be in accord with the law of the land, i.e.,
authorized by the legislature.


                     II
  The Court's entire opinion appears to proceed on the
assumption that the relevant question is whether taxes
assessed pursuant to Montana's Dangerous Drug Tax
-violate the constitutional prohibition against successive
punishments for the same offense.-  Ante, at 1.  None-
theless, after 16 pages addressing how Montana's
marijuana tax inflicts punishment, the Court adds,
almost as an afterthought:  -The proceeding Montana
initiated to collect a tax on the possession of drugs was
the functional equivalent of a successive criminal
prosecution that placed the Kurths in jeopardy a second
time `for the same offence.'-  Ante, at 17.
  The only conceivable foundation for that statement is
the implicit assumption that any proceeding which
imposes -punishment- within the meaning of the
multiple-punishments component of the Double Jeopardy
Clause is a criminal prosecution.  That assumption parts
company with a long line of cases, including Halper,
without even the courtesy of a goodbye.  Although a few
of our cases include statements to the effect that a
proceeding in which punishment is imposed is criminal,
see, e.g., Kennedy v. Mendoza-Martinez, 372 U. S. 144,
167 (1963), the criterion of -punishment- for that
purpose is significantly different (and significantly more
deferential to the government) than the criterion applied
in Halper.  United States v. Ward, 448 U. S. 242 (1980),
put it this way:
-[W]here Congress has indicated an intention to
establish a civil penalty, we have inquired further
whether the statutory scheme was so punitive either
in purpose or effect as to negate that intention.  In
regard to this latter inquiry, we have noted that
`only the clearest proof could suffice to establish the
unconstitutionality of a statute on such a ground.'-
Id., at 248-249, quoting Flemming v. Nestor, 363
U. S. 603, 617 (1960) (citation omitted).

Halper's focus on whether the sanction serves the goals
of -retribution and deterrence- is just one factor in the
Kennedy-Ward test, see 372 U. S., at 168-169, and one
factor alone is not dispositive, see Ward, 448 U. S., at
250-251.
  The greater severity of the -criminal prosecution- test
is in fact precisely why Halper resorted to the multiple-
punishments component of the Double Jeopardy Clause.
The opinion distinguished between the test used to
determine -whether proceedings are criminal or civil,-
490 U. S., at 447, and the more searching analysis
thought appropriate in the multiple-punishments context:
-The Government correctly observes that this Court
has followed this abstract [Kennedy-Ward] approach
when determining whether the procedural
protections of the Sixth Amendment apply to pro-
ceedings under a given statute, in affixing the
appropriate standard of proof for such proceedings,
and in determining whether double jeopardy
protections should be applied.  See United States v.
Ward, 448 U. S., at 248-251.  But while recourse to
statutory language, structure, and intent is appropri-
ate in identifying the inherent nature of a proceed-
ing, or in determining the constitutional safeguards
that must accompany those proceedings as a general
matter, the approach is not well suited to the
context of the `humane interests' safeguarded by the
Double Jeopardy Clause's proscription of multiple
punishments.-  Ibid.

  The Court not only ignores the Kennedy-Ward test and
this portion of Halper, it also does not attempt to
reconcile its conclusion with our decision in Helvering v.
Mitchell, 303 U. S. 391, 400 (1938):
-Forfeiture of goods or their value and the payment
of fixed or variable sums of money are other sanc-
tions which have been recognized as enforcible [sic]
by civil proceedings since the original revenue law
of 1789.  In spite of their comparative severity, such
sanctions have been upheld against the contention
that they are essentially criminal and subject to the
procedural rules governing criminal prosecutions.-
(citation omitted) (citing cases).

  Of course, if the Court were correct that the proceed-
ing below was criminal in nature, there would be no
particular reason to refer to this as a Double Jeopardy
case.  Assessment of a criminal punishment in a civil
tax proceeding would violate not only the Double
Jeopardy Clause, but all of the criminal-procedure
guarantees of the Fifth and Sixth Amendments.  And it
would be invalid whether or not it was preceded by a
traditional criminal prosecution.  The Court's assertion
that it would be lawful in isolation, see ante, at 11, thus
contradicts the Court's contention that it is -the func-
tional equivalent of a . . . criminal prosecution.-

                  *  *  *
  Applying the Kennedy-Ward test to the Montana tax
proceeding, I do not find that it constituted a second
criminal prosecution.  And since the Montana legislature
authorized these taxes in addition to the criminal
penalties for possession of marajuana, these taxes did
not violate that principle of due process sometimes
called the multiple-punishments component of the
Double Jeopardy Clause.  The Constitution requires
nothing more.  For these reasons, I respectfully dissent.