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Breyer, J., concurring in judgment
[December 10, 1997]
Justice Breyer, with whom Justice Ginsburg joins, concurring in the judgment.
I agree with the majority and with Justice Souter that United States v. Halper, 490 U.S. 435 (1989), does not provide proper guidance for distinguishing between criminal and non-criminal sanctions and proceedings. I also agree that United States v. Ward, 448 U.S. 242, 248 (1980), and Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168169 (1963), set forth the proper approach.
I do not join the Courts opinion, however, because I disagree with its reasoning in two respects. First, unlike the Court I would not say that
successive criminal prosecution because, among other things, the tax was remarkably high; it had an obvious deterrent purpose; it was conditioned on the commission of a crime; it was exacted only after the taxpayer ha[d] been arrested for the precise conduct that gives rise to the tax obligation; its alternative function of raising revenue could be equally well served by increasing the fine imposed on the activity; and it departed radically from normal revenue laws by taxing contraband goods perhaps destroyed before the tax was imposed. Id., at 781784. This reasoning tracks the non-exclusive list of factors set forth in Kennedy, and it is, I believe, the proper approach. The clearest proof language is consequently misleading, and I would consign it to the same legal limbo where Halper now rests.
Second, I would not decide now that a court should evaluate a statute only
the rare case in which there was an overwhelmingly disproportionate fine). But that is not what the Court there said. And nothing in the majoritys opinion today explains why we should abandon this aspect of Halpers holding. Indeed, in context, the language of Kennedy that suggests that the Court should consider the statute on its face does not suggest that there may not be further analysis of a penalty as it is applied in a particular case. See 372 U.S., at 169. Most of the lower court confusion and criticism of Halper appears to have focused on the problem of characterizingby examining the face of the statutethe purposes of a civil penalty as punishment, not on the application of double jeopardy analysis to the penalties that are imposed in particular cases. It seems to me quite possible that a statute that provides for a punishment that normally is civil in nature could nonetheless amount to a criminal punishment as applied in special circumstances. And I would not now hold to the contrary.
That said, an analysis of the Kennedy factors still leads me to the conclusion that the statutory penalty in this case is not on its face a criminal penalty. Nor, in my view, does the application of the statute to the petitioners in this case amount to criminal punishment. I therefore concur in the result.
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