Opinion · Supreme Court of the United States

Hudson v. United States

522 U.S. 93

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1997-12-10
Topic
general

How later courts describe this case

  • holding that courts must examine a statute "`on its face' " and may not consider the "`actual sanctions imposed' "
  • holding that a person may be subjected to civil and criminal penalties for the same conduct without violating the Double Jeopardy Clause
  • holding that "only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty"
  • holding that sanctions and professional disbarment of bank officers did not create a double jeopardy obstacle for criminal indictments
  • holding that the double jeopardy clause “protects only against the imposition of multiple criminal punishments for the same offense.”
  • holding that civil monetary penalties and occupational debarment imposed on defendant bank officers did not bar subsequent criminal prosecution of those officers
  • holding that the conferral of authority to issue debarment orders upon an administrative agency was prima facie evidence that the legislature intended to establish a civil penalty
  • recognizing that the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could in common parlance be described as punishment

Citator

Hudson v. United States has been questioned or limited by later authorities: relies on overruled authority: 104 L. Ed. 2d 487 (overruled by Hudson v. United States). Read them before relying on it. 1,403 later decisions cite it.

Authority status
caution
Cited by
1403 opinions
HUDSONv. UNITED STATES,522 U.S. 93(1997)
118 S.Ct. 488
JOHN HUDSON, LARRY BARESEL, AND JACK BUTLER RACKLEY, PETITIONERSv. UNITED
STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 96-976.
Argued October 8, 1997
Decided December 10, 1997
The Office of the Comptroller of the Currency (OCC) imposed monetary penalties and occupational debarment on petitioners for violating12 U.S.C. § 84(a)(1) and375bby causing two banks in which they were officials to make certain loans in a manner that unlawfully allowed petitioner Hudson to receive the loans' benefit. When the Government later criminally indicted petitioners for essentially the same conduct, they moved to dismiss under the Double Jeopardy Clause of the Fifth Amendment. The District Court ultimately dismissed the indictments, but the Court of Appeals reversed, relying onUnitedStatesv.Halper,490 U.S. 435,448-449.Held:The Double Jeopardy Clause is not a bar to petitioners' later criminal prosecution because the OCC administrative proceedings were civil, not criminal. Pp. 98-105.
(a) The Clause protects only against the imposition of multiplecriminalpunishments for the same offense. See,e.g., Helveringv.Mitchell,303 U.S. 391,399.Halperdeviated from this Court's longstanding double jeopardy doctrine in two key respects. First, it bypassed the traditional threshold question whether the legislature intended the particular successive punishment to be "civil" or "criminal" in nature, see,e.g., United Statesv.Ward,448 U.S. 242,248, focusing instead on whether the sanction was so grossly disproportionate to the harm caused as to constitute "punishment." The Court thereby elevated to dispositive status one of the factors listed inKennedyv.Mendoza-Martinez,372 U.S. 144,168-169, for determining whether a statute intended to be civil was so punitive as to transform it into a criminal penalty, even thoughKennedyitself emphasized that no one factor should be considered controlling,id., at 169. Second,Halper"assess[ed] the character of the actual sanctions imposed,"490 U.S., at 447, rather than, asKennedydemanded, evaluating the "statute on its face" to determine whether it provided for what amounted to a criminal sanction,372 U.S., at 169. Such deviations were ill considered.Halper's test has proved unworkable, creating confusion by attempting to distinguish between "punitive" and "non-punitive" penalties. Moreover, some of the ills at which it was directed are addressed by other constitutional provisions.Page 94Thus, this Court largely disavowsHalper's method of analysis and reaffirms the previous rule exemplified inWard. Pp. 98-103.
(b) Applying traditional principles to the facts, it is clear that petitioners' criminal prosecution would not violate double jeopardy. The money penalties statutes' express designation of their sanctions as "civil," see §§ 93(b)(1) and 504(a), and the fact that the authority to issue debarment orders is conferred upon the "appropriate Federal banking agenc[ies]," see §§ 1818(e)(1)-(3), establish that Congress intended these sanctions to be civil in nature. Moreover, there is little evidence — much less the "clearest proof" this Court requires, seeWard, supra, at 249 — to suggest that the sanctions were so punitive in form and effect as to render them criminal despite Congress' contrary intent, seeUnited Statesv.Ursery,518 U.S. 267,290. Neither sanction has historically been viewed as punishment,Helvering, supra, at 399, and n. 2, 400, and neither involves an affirmative disability or restraint, seeFlemmingv.Nestor,363 U.S. 603,617. Neither comes into play "only" on a finding of scienter,Kennedy,372 U.S., at 168, since penalties may be assessed under §§ 93(b) and 504, and debarment imposed under § 1818(e)(1)(C)(ii), without regard to the violator's willfulness. That the conduct for which OCC sanctions are imposed may also be criminal, seeibid., is insufficient to render the sanctions criminally punitive,Ursery, supra, at 292, particularly in the double jeopardy context, seeUnited Statesv.Dixon,509 U.S. 688,704. Finally, although the imposition of both sanctions will deter others from emulating petitioners' conduct, seeKennedy, supra, at 168, the mere presence of this traditional goal of criminal punishment is insufficient to render a sanction criminal, as deterrence "may serve civil as well as criminal goals,"e.g., Ursery, supra, at292. Pp. 103-105.
92 F.3d 1026, affirmed.

REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined, SCALIA, J., filed a concurring opinion, in which THOMAS, J., joinedpost, p. 106. STEVENS, J.,post, p. 106, and SOUTER, J.post, p. 112, filed opinions concurring in the judgment. BREYER, J., filed an opinion concurring in the judgment, in which GINSBURG, J., joinedpost, p. 115.
Bernard J. Rothbaumargued the cause for petitioners. With him on the briefs wereJack L. Neville, Jr., Lawrence S. Robbins, C.Merle Gile, James A. Rolfe, andLynn Pringle.Deputy Solicitor General Dreebenargued the cause for the United States. With him on the briefs wereActingPage 95Solicitor General Dellinger, Acting Assistant Attorney General Keeney, andPaul R. Q. Wolfson.fn*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The Government administratively imposed monetary penalties and occupational debarment on petitioners for violation of federal banking statutes, and later criminally indicted them for essentially the same conduct. We hold that thePage 96Double Jeopardy Clause of the Fifth Amendment is not a bar to the later criminal prosecution because the administrative proceedings were civil, not criminal. Our reasons for so holding in large part disavow the method of analysis used inUnited Statesv.Halper,490 U.S. 435,448(1989), and reaffirm the previously established rule exemplified inUnitedStatesv.Ward,448 U.S. 242,248-249(1980).

During the early and mid-1980's, petitioner John Hudson was the chairman and controlling shareholder of the First National Bank of Tipton (Tipton) and the First National Bank of Hammon (Hammon).1During the same period, petitioner Jack Rackley was president of Tipton and a member of the board of directors of Hammon, and petitioner Larry Baresel was a member of the board of directors of both Tipton and Hammon.

An examination of Tipton and Hammon led the Office of the Comptroller of the Currency (OCC) to conclude that petitioners had used their bank positions to arrange a series of loans to third parties, in violation of various federal banking statutes and regulations. According to the OCC, those loans, while nominally made to third parties were in reality made to Hudson in order to enable him to redeem bank stock that he had pledged as collateral on defaulted loans.

On February 13, 1989, OCC issued a "Notice of Assessment of Civil Money Penalty." The notice alleged that petitioners had violated12 U.S.C. § 84(a)(1) and375b(1982 ed.) and12 C.F.R. §§ 31.2(b) and215.4(b) (1986) by causing the banks with which they were associated to make loans to nominee borrowers in a manner that unlawfully allowed Hudson to receive the benefit of the loans. App. to Pet. for Cert. 89a. The notice also alleged that the illegal loans resulted in losses to Tipton and Hammon of almost $900,000 and contributed to the failure of those banks.Id., at 97a. However, the notice contained no allegation of any harm to the GovernmentPage 97as a result of petitioners' conduct. "After taking into account the size of the financial resources and the good faith of [petitioners], the gravity of the violations, the history of previous violations and other matters as justice may require, as required by12 U.S.C. § 93(b)(2) and504(b)," OCC assessed penalties of $100,000 against Hudson and $50,000 each against Rackley and Baresel.Id., at 89a. On August 31, 1989, OCC also issued a "Notice of Intention to Prohibit Further Participation" against each petitioner.Id., at 99a. These notices, which were premised on the identical allegations that formed the basis for the previous notices, informed petitioners that OCC intended to bar them from further participation in the conduct of "any insured depository institution."Id., at 100a.

In October 1989, petitioners resolved the OCC proceedings against them by each entering into a "Stipulation and Consent Order." These consent orders provided that Hudson, Baresel, and Rackley would pay assessments of $16,500, $15,000, and $12,500 respectively.Id., at 130a, 140a, 135a. In addition, each petitioner agreed not to "participate in any manner" in the affairs of any banking institution without the written authorization of the OCC and all other relevant regulatory agencies.2Id., at 131a, 141a, 136a.

In August 1992, petitioners were indicted in the Western District of Oklahoma in a 22-count indictment on charges of conspiracy,18 U.S.C. § 371, misapplication of bank funds, §§ 656 and 2, and making false bank entries, § 1005.3The violations charged in the indictment rested on the same lendingPage 98transactions that formed the basis for the prior administrative actions brought by OCC. Petitioners moved to dismiss the indictment on double jeopardy grounds, but the District Court denied the motions. The Court of Appeals affirmed the District Court's holding on the non-participation sanction issue, but vacated and remanded to the District Court on the money sanction issue.14 F.3d 536(CA10 1994). The District Court on remand granted petitioners' motion to dismiss the indictments. This time the Government appealed, and the Court of Appeals reversed.92 F.3d 1026(1996). That court held, followingHalper, that the actual fines imposed by the Government were not so grossly disproportional to the proved damages to the Government as to render the sanctions "punishment" for double jeopardy purposes. We granted certiorari,520 U.S. 1165(1997), because of concerns about the wide variety of novel double jeopardy claims spawned in the wake ofHalper.4We now affirm, but for different reasons.

The Double Jeopardy Clause provides that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." We have long recognized that the Double Jeopardy Clause does not prohibit the imposition ofPage 99all additional sanctions that could, "`in common parlance,'" be described as punishment.United States ex rel. Marcusv.Hess,317 U.S. 537,549(1943) (quotingMoorev.Illinois, 14 How. 13, 19 (1852)). The Clause protects only against the imposition of multiplecriminalpunishments for the same offense,Helveringv.Mitchell,303 U.S. 391,399(1938); see alsoHess, supraat 548-549 ("Only" "criminal punishment" "subject[s] the defendant to `jeopardy' within the constitutional meaning");Breedv.Jones,421 U.S. 519,528(1975) ("In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution"), and then only when such occurs in successive proceedings, seeMissouriv.Hunter,459 U.S. 359,366(1983).

Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction.Helvering, supra, at 399. A court must first ask whether the legislature, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other."Ward,448 U.S., at 248. Even in those cases where the legislature "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,"id., at 248-249, as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty,"RexTrailer Co. v.United States,350 U.S. 148,154(1956).

In making this latter determination, the factors listed inKennedyv.Mendoza-Martinez,372 U.S. 144,168-169(1963), provide useful guideposts, including: (1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding ofscienter";(4) "whether its operation will promote the traditional aims of punishment — retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appearsPage 100excessive in relation to the alternative purpose assigned." It is important to note, however, that "these factors must be considered in relation to the statute on its face,"id., at 169, and "only the clearest proof" will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,Ward, supra, at 249 (internal quotation marks omitted).

Our opinion inUnited Statesv.Halpermarked the first time we applied the Double Jeopardy Clause to a sanction without first determining that it was criminal in nature. In that case, Irwin Halper was convicted of,inter alia, violating the criminal false claims statute,18 U.S.C. § 287, based on his submission of 65 inflated Medicare claims each of which overcharged the Government by $9. He was sentenced to two years' imprisonment and fined $5,000. The Government then brought an action against Halper under the civil False Claims Act,31 U.S.C. § 3729-3731 (1982 ed., Supp. II). The remedial provisions of the False Claims Act provided that a violation of the Act rendered one "liable to the United States Government for a civil penalty of $2,000, an amount equal to 2 times the amount of damages the Government sustains because of the act of that person, and costs of the civil action."Id., § 3729. Given Halper's 65 separate violations of the Act, he appeared to be liable for a penalty of $130,000, despite the fact he actually defrauded the Government of less than $600. However, the District Court concluded that a penalty of this magnitude would violate the Double Jeopardy Clause in light of Halper's previous criminal conviction. While explicitly recognizing that the statutory damages provision of the Act "was not itself a criminal punishment," the District Court nonetheless concluded that application of the full penalty to Halper would constitute a second "punishment" in violation of the Double Jeopardy Clause.490 U.S., at 438-439.

On direct appeal, this Court affirmed. As theHalperCourt saw it, the imposition of "punishment" of any kind wasPage 101subject to double jeopardy constraints, and whether a sanction constituted "punishment" depended primarily on whether it served the traditional "goals of punishment," namely, "retribution and deterrence."Id., at 448. Any sanction that was so "overwhelmingly disproportionate" to the injury caused that it could not "fairly be saidsolelyto serve [the] remedial purpose" of compensating the Government for its loss, was thought to be explainable only as "serving either retributive or deterrent purposes." Seeid., at 448-449 (emphasis added).

The analysis applied by theHalperCourt deviated from our traditional double jeopardy doctrine in two key respects. First, theHalperCourt bypassed the threshold question: whether the successive punishment at issue is a "criminal" punishment. Instead, it focused on whether the sanction, regardless of whether it was civil or criminal, was so grossly disproportionate to the harm caused as to constitute "punishment." In so doing, the Court elevated a singleKennedyfactor — whether the sanction appeared excessive in relation to its non-punitive purposes — to dispositive status. But as we emphasized inKennedyitself, no one factor should be considered controlling as they "may often point in differing directions."372 U.S., at 169. The second significant departure inHalperwas the Court's decision to "asses[s] the character of the actual sanctions imposed,"490 U.S., at 447, rather than, asKennedydemanded, evaluating the "statute on its face" to determine whether it provided for what amounted to a criminal sanction,372 U.S., at 169.

We believe thatHalper'sdeviation from longstanding double jeopardy principles was ill considered.5As subsequentPage 102cases have demonstrated,Halper's test for determining whether a particular sanction is "punitive," and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable. We have since recognized that all civil penalties have some deterrent effect. SeeDepartment of Revenue of Mont. v.Kurth Ranch,511 U.S. 767,777, n. 14 (1994);United Statesv.Ursery,518 U.S. 267,284-285, n. 2 (1996).6If a sanction must be "solely" remedial (i.e., entirely non-deterrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause. UnderHalper's method of analysis, a court must also look at the "sanction actually imposed" to determine whether the Double Jeopardy Clause is implicated. Thus, it will not be possible to determine whether the Double Jeopardy Clause is violated until a defendant has proceeded through a trial to judgment. But in those cases where the civil proceeding follows the criminal proceeding, this approach flies in the face of the notion that the Double Jeopardy Clause forbids the government from even"attemptinga second time to punish criminally."Helvering,303 U.S., at 399(emphasis added).

Finally, it should be noted that some of the ills at whichHalperwas directed are addressed by other constitutionalPage 103provisions. The Due Process and Equal Protection Clauses already protect individuals from sanctions which are downright irrational.Williamsonv.Lee Optical of Okla., Inc.,348 U.S. 483(1955). The Eighth Amendment protects against excessive civil fines, including forfeitures.Alexanderv.United States,509 U.S. 544(1993);Austinv.United States,509 U.S. 602(1993). The additional protection afforded by extending double jeopardy protections to proceedings heretofore thought to be civil is more than offset by the confusion created by attempting to distinguish between "punitive" and "non-punitive" penalties.

Applying traditional double jeopardy principles to the facts of this case, it is clear that the criminal prosecution of these petitioners would not violate the Double Jeopardy Clause. It is evident that Congress intended the OCC money penalties and debarment sanctions imposed for violations of12 U.S.C. §§ 84and375bto be civil in nature. As for the money penalties, both §§ 93(b)(1) and 504(a), which authorize the imposition of monetary penalties for violations of §§ 84 and 375b respectively, expressly provide that such penalties are "civil." While the provision authorizing debarment contains no language explicitly denominating the sanction as civil, we think it significant that the authority to issue debarment orders is conferred upon the "appropriate Federal banking agenc[ies]." §§ 1818(e)(1)-(3). That such authority was conferred upon administrative agencies is prima facie evidence that Congress intended to provide for a civil sanction. SeeHelvering, supra, at 402;United Statesv.Spector,343 U.S. 169,178(1952) (Jackson, J., dissenting) ("Administrative determinations of liability to deportation have been sustained as constitutional only by considering them to be exclusively civil in nature, with no criminal consequences or connotations");Wong Wingv.United States,163 U.S. 228,235(1896) (holding that quintessential criminal punishments may be imposed only "by a judicial trial").Page 104

Turning to the second stage of theWardtest, we find that there is little evidence, much less the clearest proof that we require, suggesting that either OCC money penalties or debarment sanctions are "so punitive in form and effect as to render them criminal despite Congress' intent to the contrary."Ursery, supra, at 290. First, neither money penalties nor debarment has historically been viewed as punishment. We have long recognized that "revocation of a privilege voluntarily granted," such as a debarment, "is characteristically free of the punitive criminal element."Helvering,303 U.S., at 399, and n. 2. Similarly, "the payment of fixed or variable sums of money [is a] sanction which ha[s] been recognized as enforcible by civil proceedings since the original revenue law of 1789."Id., at 400.

Second, the sanctions imposed do not involve an "affirmative disability or restraint," as that term is normally understood. While petitioners have been prohibited from further participating in the banking industry, this is "certainly nothing approaching the `infamous punishment' of imprisonment."Flemmingv.Nestor,363 U.S. 603,617(1960). Third, neither sanction comes into play "only" on a finding of scienter. The provisions under which the money penalties were imposed,12 U.S.C. § 93(b) and504, allow for the assessment of a penalty against any person "who violates" any of the underlying banking statutes, without regard to the violator's state of mind. "Good faith" is considered by OCC in determining the amount of the penalty to be imposed, § 93(b)(2), but a penalty can be imposed even in the absence of bad faith. The fact that petitioners' "good faith" was considered in determining the amount of the penalty to be imposed in this case is irrelevant, as we look only to "the statute on its face" to determine whether a penalty is criminal in nature.Kennedy,372 U.S., at 169. Similarly, while debarment may be imposed for a "willful" disregard "for the safety or soundness of [an] insured depository institution,"Page 105willfulness is not a prerequisite to debarment; it is sufficient that the disregard for the safety and soundness of the institution was "continuing." § 1818(e)(1)(C)(ii).

Fourth, the conduct for which OCC sanctions are imposed may also be criminal (and in this case formed the basis for petitioners' indictments). This fact is insufficient to render the money penalties and debarment sanctions criminally punitive,Ursery, supraat 292, particularly in the double jeopardy context, seeUnited Statesv.Dixon,509 U.S. 688,704(1993) (rejecting "same-conduct" test for double jeopardy purposes).

Finally, we recognize that the imposition of both money penalties and debarment sanctions will deter others from emulating petitioners' conduct, a traditional goal of criminal punishment. But the mere presence of this purpose is insufficient to render a sanction criminal, as deterrence "may serve civil as well as criminal goals."Ursery, atsupra, 292; see alsoBennisv.Michigan,516 U.S. 442,452(1996) ("[F]orfeiture . . . serves a deterrent purpose distinct from any punitive purpose"). For example, the sanctions at issue here, while intended to deter future wrongdoing, also serve to promote the stability of the banking industry. To hold that the mere presence of a deterrent purpose renders such sanctions "criminal" for double jeopardy purposes would severely undermine the Government's ability to engage in effective regulation of institutions such as banks.

In sum, there simply is very little showing, to say nothing of the "clearest proof" required byWard, that OCC money penalties and debarment sanctions are criminal. The Double Jeopardy Clause is therefore no obstacle to their trial on the pending indictments, and it may proceed.

The judgment of the Court of Appeals for the Tenth Circuit is accordinglyAffirmed.Page 106
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring.
I wholly agree with the Court's conclusion thatHalper'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 theHalperanalysis upon the Montana tax scheme at issue inDepartment of Revenue ofMont. v.Kurth Ranch,511 U.S. 767(1994), that prompted me to focus on the prior question whether the Double Jeopardy Clause even contains a multiple-punishments prong. Seeid., 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 theHalpergenie 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 toHalper— 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.
JUSTICE STEVENS, concurring in the judgment.
The maxim that "hard cases make bad law" may also apply to easy cases. As I shall explain, this case could easily be decided by the straightforward application of well-established precedent. Neither such a disposition, nor anything in the opinion of the Court of Appeals, would require a reexamination of the central holding inUnited Statesv.Halper,490 U.S. 435(1989), or of the language used in that unanimous opinion. Any proper concern about the danger that that opinion might be interpreted too expansively would be more appropriately addressed in a case that was either incorrectly decided or that at least raised a close or difficultPage 107question. In my judgment it is most unwise to use this case as a vehicle for the substitution of a rather open-ended attempt to define the concept of punishment for the portions of the opinion inHalperthat trouble the Court. Accordingly, while I have no hesitation about concurring in the Court's judgment, I do not join its opinion.
I
As is evident from the first sentence of the Court's opinion, this is an extremely easy case. It has been settled since the decision inBlockburgerv.United States,284 U.S. 299(1932), that the Double Jeopardy Clause is not implicated simply because a criminal charge involves "essentially the same conduct" for which a defendant has previously been punished. See,e.g., United Statesv.Dixon,509 U.S. 688,696,704(1993);Rutledgev.United States,517 U.S. 292,297(1996). Unless a second proceeding involves the "same offense" as the first, there is no double jeopardy. The two proceedings at issue here involved different offenses that were not even arguably the same underBlockburger.Under Blockburger's "same-elements" test, two provisions are not the "same offense" if each contains an element not included in the other.Dixon,509 U.S., at 696. The penalties imposed on the petitioners in 1989 were based on violations of12 U.S.C. § 84(a)(1) and375b(1982 ed.) and12 C.F.R. § 31.2(b) and215.4(b) (1986). Each of these provisions required proof that extensions of credit exceeding certain limits were made,1but did not require proof of an intent to defraud or the making of any false entries in bank records. The 1992 indictment charged violations of18 U.S.C. § 371,656, and1005and alleged a conspiracy to willfully misapplyPage 108bank funds and to make false banking entries, as well as the making of such entries; none of those charges required proof that any lending limit had been exceeded.

Thus, I think it would be difficult to find a case raising a double jeopardy claim that would be any easier to decide than this one.2
II
The Court not only ignores the most obvious and straightforward basis for affirming the judgment of the Court of Appeals; it also has nothing to say about that court's explanation of why the reasoning in our opinion inUnited Statesv.Halpersupported a rejection of petitioners' double jeopardy claim. Instead of granting certiorari to consider a possible error in the Court of Appeals' reasoning or its judgment, the Court candidly acknowledges that it was motivated by "concerns about the wide variety of novel double jeopardy claims spawned in the wake ofHalper."Ante, at 4.

The Court's opinion seriously exaggerates the significance of those concerns. Its list of cases illustrating the problem cites seven cases decided in the last two years.Ante, at 4, n. 4. In every one of those cases, however, the Court of Appealsrejectedthe double jeopardy claim. The only ruling by any court favorable to any of these "novel" claims was a preliminary injunction entered by a District Court postponing implementation of New Jersey's novel, controversialPage 109"Megan's Law."E.B. v.Poritz,914 F. Supp. 85(NJ 1996), reversed,E.B. v.Verniero,119 F.3d 1077(CA3 1997). Thus, the cases cited by the Court surely do not indicate any need to revisitHalper.

The Court also claims that two practical flaws in theHalperopinion warrant a prompt adjustment in our double jeopardy jurisprudence. First, the Court asserts thatHalper's test is unworkable because it permits only successive sanctions that are "solely" remedial.Ante, at 8. Though portions ofHalperwere consistent with such a reading, the express statement of its holding was much narrower.3Of greater importance, the Court has since clarified this very point:
"Whether a particular sanction `cannot fairly be saidsolelyto serve a remedial purpose' is an inquiry radically different from that we have traditionally employed in order to determine whether, as a categorical matter, a civil sanction is subject to the Double Jeopardy Clause. Yet nowhere inHalperdoes the Court purport to make such a sweeping change in the law, instead emphasizing repeatedly the narrow scope of its decision."United Statesv.Ursery,518 U.S. 267, (1996) 285, n. 2.


Having just recently emphasizedHalper's narrow rule inUrsery, it is quite odd for the Court now to suggest that its overbreadth has created some sort of judicial emergency.

Second, the Court expresses the concern that when a civil proceeding follows a criminal punishment,Halperwould require a court to wait until judgment is imposed in the successive proceeding before deciding whether the latter sanction violates double jeopardy.Ante, at 102. That concern isPage 110wholly absent in this case, however, because the criminal indictment followed administrative sanctions. There can be no doubt that any fine or sentence imposed on the criminal counts would be "punishment." If the indictment charged the same offense for which punishment had already been imposed, the prosecution itself would be barred by the Double Jeopardy Clause no matter how minor the criminal sanction sought in the second proceeding.

Thus, the concerns that the Court identifies merely emphasize the accuracy of the comment inHalperitself that it announced "a rule for the rare case . . . where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused."490 U.S., at 449.
III
Despite my disagreement with the Court's decision to use this case as a rather lame excuse for writing a gratuitous essay about punishment, I do agree with its reaffirmation of the central holding ofHalperandDepartment of Revenue of Mont. v.Kurth Ranch,511 U.S. 767(1994). Both of those cases held that sanctions imposed in civil proceedings constituted "punishment" barred by the Double Jeopardy Clause.4Those holdings reconfirmed the settled proposition that the Government cannot use the "civil" label to escape entirely the Double Jeopardy Clause's command, as we have recognized for at least six decades. SeeUnited Statesv.La Franca,282 U.S. 568,574-575(1931);Helveringv.Mitchell,303 U.S. 391,398-399(1938). That proposition is extremelyPage 111important because the States and the Federal Government have an enormous array of civil administrative sanctions at their disposal that are capable of being used to punish persons repeatedly for the same offense, violating the bedrock double jeopardy principle of finality. "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity . . . ."Greenv.UnitedStates,355 U.S. 184,187(1957). However the Court chooses to recalibrate the meaning of punishment for double jeopardy purposes, our doctrine still limits multiple sanctions of the rare sort contemplated byHalper.
IV
Today, as it did inHalperitself, the Court relies on the sort of multifactor approach to the definition of punishment that we used inKennedyv.Mendoza-Martinez,372 U.S. 144,168-169(1963), to identify situations in which a civil sanction is punitive. Whether the Court's reformulation ofHalper's test will actually affect the outcome of any cases remains to be seen. Perhaps it will not, since the Court recommends consideration of whether a sanction's "`operation will promote the traditional aims of punishment — retribution and deterrence,'" and "`whether it appears excessive in relation to the alternative [non-punitive] purpose assigned.'"Ante, at 5-6 (quotingKennedy,372 U.S., at 168-169). Those factors look awfully similar to the reasoning inHalper, and while we are told that they are never by themselves dispositive,ante, at 7, they should be capable of tipping the balance in extreme cases. The danger in changing approaches midstream, rather than refining our established approach on an incremental basis, is that the Government and lowerPage 112courts may be unduly influenced by the Court's new attitude, rather than its specific prescribed test.

It is, of course, entirely appropriate for the Court to perform a lawmaking function as a necessary incident to its Article III responsibility for the decision of "Cases" and "Controversies." In my judgment, however, a desire to reshape the law does not provide a legitimate basis for issuing what amounts to little more than an advisory opinion that, at best, will have the precedential value of pure dictum and may in time unduly restrict the protections of the Double Jeopardy Clause. "It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case."Burtonv.United States,196 U.S. 283,295(1905); see alsoAshwander v. TVA,297 U.S. 288,345-348(1936) (Brandeis, J., concurring). Accordingly, while I concur in the judgment of affirmance, I do not join the Court's opinion.
JUSTICE SOUTER, concurring in the judgment.
I concur in the Court's judgment and with much of its opinion. As the Court notes,ante, at 8, we have already recognized thatHalper's statements of standards for identifying what is criminally punitive under the Fifth Amendment needed revision,United Statesv.Ursery,518 U.S. 267,284-285, n. 2 (1996), and there is obvious sense in employing common criteria to point up the criminal nature of a statute for purposes of both the Fifth and Sixth Amendments. SeeUnited Statesv.One Assortmentof 89 Firearms,465 U.S. 354,362-366(1984);United Statesv.Ward,448 U.S. 242,248-249(1980);Kennedyv.Mendoza-Martinez,372 U.S. 144,168-169(1963); see alsoWard, supra, at 254 ("[I]t would be quite anomalous to hold that [the statute] created a criminal penalty for the purposes of the Self-Incrimination Clause but a civil penalty for all other purposes").

Applying the Court'sKennedy-Wardcriteria leads me directly to the conclusion of JUSTICE STEVENS'S opinion concuringPage 113in the judgment. The fifth criterion calls for a court to determine whether "the behavior to which [the penalty] applies is already a crime."Kennedyv.Mendoza-Martinez, supra, at 168-169. The efficient starting point for identifying constitutionally relevant "behavior," when considering an objection to a successive prosecution, is simply to apply the same-elements test as originally stated inBlockburgerv.UnitedStates,284 U.S. 299(1932). SeeUnited Statesv.Dixon,509 U.S. 688(1993). When application of Blockburger underKennedy-Wardshows that a successive prosecution is permissible even on the assumption that each penalty is criminal, the issue is necessarily settled. Such is the case here, as JUSTICE STEVENS explains. Seeante, at 2 (opinion concurring in judgment). Applying theKennedy-Wardcriteria, therefore, I would stop just where JUSTICE STEVENS stops.

My acceptance of theKennedy-Wardanalytical scheme is subject to caveats, however. As the Court points out, underWard, once it is understood that a legislature intended a penalty to be treated as civil in character, that penalty may be held criminal for Fifth Amendment purposes (and, for like reasons, under the Sixth Amendment) only on the "clearest proof" of its essentially criminal proportions. While there are good and historically grounded reasons for using that phrase to impose a substantial burden on anyone claiming that an apparently civil penalty is in truth criminal, what may be clear enough to be "clearest" is necessarily dependent on context, as indicated by the cases relied on as authority for adopting the standard inWard. Flemmingv.Nestor,363 U.S. 603(1960), used the quoted language to describe the burden of persuasion necessary to demonstrate a criminal and punitive purpose unsupported by "objective manifestations" of legislative intent.Id., at 617.Rex Trailer Co. v.United States,350 U.S. 148,154(1956), cited as secondary authority, required a defendant to show that a "measure of recovery" was "unreasonable or excessive" before "what wasPage 114clearly intended as a civil remedy [would be treated as] a criminal penalty."One Lot Emerald Cut Stonesv.United States,409 U.S. 232,237(1972)per curiam, citedRex Trailerfor that standard and relied on the case as exemplifying a provision for liquidated damages as distinct from criminal penalty. I read the requisite "clearest proof" of criminal character, then, to be a function of the strength of the countervailing indications of civil nature (including the presumption of constitutionality enjoyed by an ostensibly civil statute making no provision for the safeguards guaranteed to criminal defendants. SeeFlemming, supra, at 617).

I add the further caution, to be wary of reading the "clearest proof" requirement as a guarantee that such a demonstration is likely to be as rare in the future as it has been in the past. SeeUnited Statesv.Halper,490 U.S. 435,449(1989) ("What we announce now is a rule for the rare case"). We have noted elsewhere the expanding use of ostensibly civil forfeitures and penalties under the exigencies of the current drug problems, seeUrsery, supra, at 300 (STEVENS, J., concurring in judgment in part and dissenting in part) ("In recent years, both Congress and the state legislatures have armed their law enforcement authorities with new powers to forfeit property that vastly exceeded their traditional tools");United Statesv.James Daniel Good Real Property,510 U.S. 43,81-82(1993) (THOMAS, J., concurring in part and dissenting in part), a development doubtless spurred by the increasingly inviting prospect of its profit to the Government. Seeid., at 56, n. 2 (opinion of the Court) (describing the Government's financial stake in drug forfeiture); see alsoid., at 56 (citingHarmelinv.Michigan,501 U.S. 957,979, n. 9 (1991) (opinion of SCALIA, J.) for the proposition that "it makes sense to scrutinize governmental action more closely when the State stands to benefit"). Hence, on the infrequency of "clearest proof," history may not be repetitive.Page 115
JUSTICE BREYER, with whom JUSTICE GINSBURG joins, concurring in the judgment.
I agree with the majority and with JUSTICE SOUTER thatUnited Statesv.Halper,490 U.S. 435(1989), does not provide proper guidance for distinguishing between criminal and non-criminal sanctions and proceedings. I also agree thatUnited Statesv.Ward,448 U.S. 242,248(1980), andKennedyv.Mendoza-Martinez,372 U.S. 144,168-169(1963), set forth the proper approach.

I do not join the Court's opinion, however, because I disagree with its reasoning in two respects. First, unlike the Court I would not say that "`only the clearest proof'" will "transform" into a criminal punishment what a legislature calls a "civil remedy."Ante, at 6. I understand that the Court has taken this language from earlier cases. SeeWard, supra, at 249. But the limitation that the language suggests is not consistent with what the Court has actually done. Rather, in fact if not in theory, the Court has simply applied factors of theKennedyvariety to the matter at hand. InDepartment of Revenue of Mont. v.Kurth Ranch,511 U.S. 767(1994), for example, the Court held that the collection of a state tax imposed on the possession and storage of drugs was "the functional equivalent of a 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 781-784. This reasoning tracks the non-exclusive list of factors set forth inKennedy, and it is, I believe, the proper approach. The "clearest proof" languagePage 116is consequently misleading, and I would consign it to the same legal limbo whereHalpernow rests.

Second, I would not decide now that a court should evaluate a statute only "`on its face,'" ante, at 6 (quotingKennedy, supra, U.S., at 169), rather than "assessing the character of the actual sanctions imposed."Halper, supra, at 447;ante, at 7.Halperinvolved an ordinary civil-fine statute that as normally applied would not have created any "double jeopardy" problem. It was not the statute itself, but rather the disproportionate relation between fine and conduct as the statute was applied in the individual case that led this Court, unanimously, to find that the "civil penalty" was, in those circumstances, a second "punishment" that constituted double jeopardy. See490 U.S., at 439,452(finding that $130,000 penalty was "sufficiently disproportionate" to $585 loss plus approximately $16,000 in Government expenses caused by Halper's fraud to constitute a second punishment in violation of double jeopardy). Of course, the Court inHalpermight have reached the same result through application of the constitutional prohibition of "excessive fines." Seeante, at 9;Alexanderv.United States,509 U.S. 544,558-559(1993);Halper, supra, at 449 (emphasizing thatHalperwas "the rare case" in which there was an "overwhelmingly disproportionate" fine). But that is not what the Court there said. And nothing in the majority's opinion today explainswhywe should abandon this aspect ofHalper's holding. Indeed, in context, the language ofKennedythat 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. See372 U.S., at 169. Most of the lower court confusion and criticism ofHalperappears to have focused on the problem of characterizing — by examining the face of the statute — the 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 thatPage 117a 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 theKennedyfactors 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 judgment.Page 118
  1. Briefs ofamicus curiaeurging reversal were filed for the National Association of Criminal Defense Lawyers byArthur F. MathewsandLisaKemler; and for the Washington Legal Foundation byDaniel J. Popeo.

    A brief ofamicus curiaeurging affirmance was filed for 48 States and Territories byBetty D. Montgomery, Attorney General of Ohio,Jeffery S.Sutton, State Solicitor, andDavid M. Gormley, Assistant Attorney General,Jan Graham, Attorney General of Utah,Carol Clawson, Solicitor General, andMarian Decker, Assistant Attorney General,John M. Bailey, Chief States Attorney of Connecticut,Jo Anne Robinson, Interim Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective jurisdictions as follows:Bill Pryorof Alabama,Burce M. Botelhoof Alaska,Toetagata A. Mialoof American Samoa,Grant Woodsof ArizonaWinston Bryantof Arkansas,Daniel E.Lungrenof California,Michael J. Bowersof Georgia,Margery S. Bronsterof Hawaii,Alan G. Lanceof Idaho,James E. Ryanof Illinois,Jeffrey A.Modisettof Indiana,Thomas J. Millerof Iowa,Carla J. Stovallof Kansas,Richard P. Ieyoubof Louisiana,J. Joseph Curran, Jr., of Maryland,Frank J. Kelleyof Michigan,Hubert H. Humphrey IIIof Minnesota,Michael C. Mooreof Mississippi,Joseph P. Mazurekof Montana,Don Stenbergof Nebraska,Frankie Sue Del Papaof Nevada,PhilipT. McLaughlinof New Hampshire,Peter Vernieroof New Jersey,Tom Udallof New Mexico,Dennis C. Vaccoof New York,Michael F. Easleyof North Carolina,Robert B. Dunlap IIof the Northern Mariana Islands,W. A. DrewEdmondsonof Oklahoma,Hardy Myersof Oregon,D. Michael Fisherof Pennsylvania,Jose Fuentes-Agostiniof Puerto Rico,Jeffrey B. Pineof Rhode Island,Charles M. Condonof South Carolina,Mark W. Barnettof South Dakota,John Knox Walkupof Tennessee,Dan Moralesof Texas,William H. Sorrellof Vermont,Julio A. Bradyof the Virgin Islands,Richard Cullenof Virginia,Christine O. Gregoireof Washington, andWilliam U. Hallof Wyoming. ↩
  2. Page 96 Tipton and Hammon are two very small towns in western Oklahoma. ↩
  3. Page 97 The consent orders also contained language providing that they did not constitute "a waiver of any right, power, or authority of any other representatives of the United States, or agencies thereof, to bring other actions deemed appropriate." App. to Pet. for Cert. 133a, 143a, 138a. The Court of Appeals ultimately held that this provision was not a waiver of petitioners' double jeopardy claim.14 F.3d 536,539(CA10 1994). ↩
  4. Page 97 Only petitioner Rackley was indicted for making false bank entries in violation of18 U.S.C. § 1005. ↩
  5. Page 98E.g., Zukasv.Hinson,1997 WL 623648(CA11, Oct. 21, 1997) (challenge to FAA revocation of a commercial pilot's license as violative of double jeopardy);E.B. v.Verniero,119 F.3d 1077(CA3 1997) (challenge to "Megan's Law" as violative of double jeopardy);Jonesv.Securities Exchange Comm'n,115 F.3d 1173(CA4 1997) (challenge to SEC debarment proceeding as violative of double jeopardy);United Statesv.Rice,109 F.3d 151(CA3 1997) (challenge to criminal drug prosecution following general military discharge for same conduct as violative of double jeopardy);United Statesv.Hatfield,108 F.3d 67(CA4 1997) (challenge to criminal fraud prosecution as foreclosed by previous debarment from Government contracting);Taylorv.Cisneros,102 F.3d 1334(CA3 1996) (challenge to eviction from federally subsidized housing based on guilty plea to possession of drug paraphernalia as violative of double jeopardy);United Statesv.Galan,82 F.3d 639(CA5) (challenge to prosecution for prison escape following prison disciplinary proceeding as violative of double jeopardy), cert. denied,519 U.S. 867(1996). ↩
  6. Page 101 In his concurrence, JUSTICE STEVENS criticizes us for reexamining ourHalperopinion rather than deciding the case on what he believes is the narrowerBlockburgergrounds. But the question upon which we granted certiorari in this case is "whether imposition upon petitioners of monetary fines asin personamcivil penalties by the Department of the Treasury, together with other sanctions, is `punishment' for purposes of the Double Jeopardy Clause." Pet. for Cert. i. It is this question, and not theBlockburgerissue, upon which there is a conflict among the Courts of Appeals. Indeed, the Court of Appeals for the Tenth Circuit in this case did not even pass upon theBlockburgerquestion, finding it unnecessary to do so.92 F.3d, at 1028, n. 3. ↩
  7. Page 102 InKurth Ranch, we held that the presence of a deterrent purpose or effect is not dispositive of the double jeopardy question.511 U.S., at 781. Rather, we applied aKennedy-like test, see511 U.S., at 780-783, before concluding that Montana's dangerous drug tax was "the functional equivalent of a successive criminal prosecution"id., at 784. Similarly, inUrsery, we rejected the notion that civilin remforfeitures violate the Double Jeopardy Clause.518 U.S., at 270-271. We upheld such forfeitures, relying on the historical support for the notion that such forfeitures are civil and thus do not implicate double jeopardy.Id., at 292. ↩
  8. Page 107 Title12 U.S.C. § 84(a)(1) prohibits total loans and extensions of credit by a national banking association to any one borrower from exceeding 15 percent of the bank's unimpaired capital and surplus. Title12 U.S.C. § 375band12 C.F.R. § 31.2(b) and215.4(b) (1986) impose similar lending limits on loans to bank officers and other insiders. ↩
  9. Page 108 Petitioners challenge this conclusion by relying on dicta fromKansasv.Hendricks,521 U.S. 346,370(1997). There, after rejecting a double jeopardy challenge to Kansas' Sexually Violent Predator Act, the Court added: "TheBlockburgertest, however, simply does not apply outside of the successive prosecution context."Id., at 370. This statement, pure dictum, was unsupported by any authority and contradicts the earlier ruling inUnited Statesv.Dixon,509 U.S. 688,704-705(1993), that theBlockburgeranalysis applies to claims of successive punishment as well as successive prosecution. See also509 U.S., at 745-746(SOUTER, J., concurring in judgment in part and dissenting in part) (explaining why theBlockburgertest applies in the multiple punishments context). I cannot imagine a good reason whyBlockburgershould not apply here. ↩
  10. Page 109 "We . . . hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution."United Statesv.Halper,490 U.S. 435,448-449(1989). ↩
  11. Page 110 Other recent double jeopardy decisions have also recognized that double jeopardy protection is not limited to multiple prosecutions. SeeUnited Statesv.Ursery,518 U.S. 267,273(1996);Kansasv.Hendricks,521 U.S., at 369. Otherwise, it would have been totally unnecessary to determine whether the civil forfeitures inUrseryand the involuntary civil commitment inHendricksimposed "punishment" for double jeopardy purposes, for neither sanction was implemented via criminal proceedings. ↩