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HUDSON v. UNITED STATES (96-976)
92 F.3d 1026, affirmed.
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Opinion
[ Rehnquist ]
Concurrence
[ Scalia ]
Concurrence
[ Stevens ]
Concurrence
[ Souter ]
Concurrence
[ Breyer ]
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Scalia, J., concurring

SUPREME COURT OF THE UNITED STATES


No. 96—976


JOHN HUDSON, LARRY BARESEL, and JACK BUTLER RACKLEY, PETITIONERS v.
UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

[December 10, 1997]

Justice Scalia, with whom Justice Thomas joins, concurring.

I wholly agree with the Court’s conclusion that Halper’s test for whether a sanction is “punitive” was ill-considered and unworkable. Ante, at 7—8. Indeed, it was the absurdity of trying to force the Halper analysis upon the Montana tax scheme at issue in Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994), that prompted me to focus on the prior question of whether the Double Jeopardy Clause even contains a multiple-punishments prong. See id., at 802—803. That evaluation led me to the conclusion that the Double Jeopardy Clause prohibits successive prosecution, not successive punishment, and that we should therefore “put the Halper genie back in the bottle.” Id., at 803—805. Today’s opinion uses a somewhat different bottle than I would, returning the law to its state immediately prior to Halper–which acknowledged a constitutional prohibition of multiple punishments but required successive criminal prosecutions. So long as that requirement is maintained, our multiple punishments jurisprudence essentially duplicates what I believe to be the correct double-jeopardy law, and will be as harmless in the future as it was pre-Halper. Accordingly, I am pleased to concur.

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