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,

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 punishments 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 Government, "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 Jeopardy Clause prohibits successive prosecution, not successive 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.