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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 94-6187
- --------
- STEVEN KURT WITTE, PETITIONER v.
- UNITED STATES
- on writ of certiorari to the united states court
- of appeals for the fifth circuit
- [June 14, 1995]
-
- Justice Scalia, with whom Justice Thomas joins,
- concurring in the judgment.
- This is one of those areas in which I believe our
- jurisprudence is not only wrong but unworkable as well,
- and so persist in my refusal to give that jurisprudence
- stare decisis effect. See Planned Parenthood of South-
- eastern Pa. v. Casey, 505 U. S. ___, ___ (1992) (Scalia,
- J., concurring in judgment in part and dissenting in
- part); Walton v. Arizona, 497 U. S. 639, 673 (1990)
- (Scalia, J., concurring in part and concurring in
- judgment).
- It is not true that (as the Court claims) -the language
- of the Double Jeopardy Clause protects against . . . the
- actual imposition of two punishments for the same
- offense.- Ante, at 6. What the Clause says is that no
- person -shall . . . be subject for the same offence to be
- twice put in jeopardy of life or limb,- U. S. Const. Amdt.
- V (emphasis added), which means twice prosecuted for
- the same offense. Today's decision shows that departing
- from the text of the Clause, and from the constant
- tradition regarding its meaning, as we did six years ago
- in United States v. Halper, 490 U. S. 435 (1989),
- requires us either to upset well-established penal
- practices, or else to perceive lines that do not really
- exist. Having created a right against multiple punish-
- ments ex nihilo, we now allow that right to be destroyed
- by the technique used on the petitioner here: -We do not
- punish you twice for the same offense,- says the Govern-
- ment, -but we punish you twice as much for one offense
- solely because you also committed another offense, for
- which other offense we will also punish you (only once)
- later on.- I see no real difference in that distinction,
- and decline to acquiesce in the erroneous holding that
- drives us to it.
- In sum, I adhere to my view that -the Double Jeop-
- ardy Clause prohibits successive prosecution, not succes-
- sive punishment.- Department of Revenue of Montana v.
- Kurth Ranch, 511 U. S. ___, ___ (1994) (Scalia, J.,
- dissenting) (slip op., at 8). Since petitioner was not
- twice prosecuted for the same offense, I concur in the
- judgment.
-