OCTOBER TERM, 1993
Syllabus
DEPARTMENT OF REVENUE OF MONTANA v.
KURTH RANCH ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 93-144. Argued January 19, 1994-Decided June 6, 1994
Montana law enforcement officers raided the farm of
respondents-members of the extended Kurth family-arrested them, and
confiscated and later destroyed their marijuana plants. After the
Kurths pleaded guilty to drug charges, petitioner revenue
department attempted, in a separate proceeding, to collect a state
tax imposed on the possession and storage of dangerous drugs. That
tax is collected only after any state or federal fines or
forfeitures have been satisfied, and taxpayers must file a return
after they are arrested. In bankruptcy proceedings filed by the
Kurths, they objected to petitioner's proof of claim for the tax
and challenged the tax's constitutionality. The Bankruptcy Court
held, among other things, that the assessment on harvested
marijuana, a portion of which resulted in a tax eight times the
product's market value, was a form of double jeopardy invalid under
the Federal Constitution, and the District Court affirmed. In
affirming, the Court of Appeals determined that the central inquiry
under United States v. Halper,
490 U. S. 435, is whether
the sanction imposed is rationally related to the damages the
government suffered, that the Kurths were entitled to an accounting
to determine if the sanction constituted an impermissible second
punishment, and that the tax was unconstitutional as applied to
them because the State refused to offer any such evidence.
Held: The tax violates the constitutional prohibition against
successive punishments for the same offense. Pp.776-784.
(a) Although deciding in Halper that a legislature's description
of a statute as civil does not foreclose the possibility that it
has a punitive character, and that a defendant convicted and
punished for an offense may not have a nonremedial civil penalty
imposed against him for the same offense in a separate proceeding,
the Court did not consider whether a tax may similarly be
characterized as punitive. However, the Court's recognition that
the extension of a so-called tax's penalizing feature can cause it
to lose its character as such and become a mere penalty, A. Magnano
Co. v. Hamilton,
292
U. S. 40, 46, together with Halper's unequivocal statement that
labels do not control in a double jeopardy inquiry, indicates that
a tax is not immune from double jeopardy scrutiny simply because it
is a tax. Pp.776-780.
768
Syllabus
(b) While taxes are usually motivated by revenue-raising rather
than punitive purposes, Montana's tax departs far from normal
revenue laws. Its high rate and deterrent purpose, in and of
themselves, do not necessarily render it punitive, but other
unusual features set it apart from most taxes. That it is
conditioned on the commission of a crime is significant of penal
and prohibitory intent rather than the gathering of revenue. It is
also exacted only after the taxpayer has been arrested for the
precise conduct that gives rise to the tax obligation in the first
place. Since the taxed activity is completely forbidden, the
legitimate revenue-raising purpose that might support the tax could
be equally well served by increasing the fine imposed upon
conviction. In addition, it purports to be a property tax, yet it
is levied on goods-here, the destroyed marijuana plants-that the
taxpayer neither owns nor possesses. Pp. 780-783.
(c) Since tax statutes serve a purpose quite different from
civil penalties, it is inappropriate to subject Montana's tax to
Halper's test for a civil penalty: whether the penalty is imposed
as a remedy for actual costs to the State that are attributable to
the defendant's conduct. Moreover, Montana has not claimed that its
assessments can be justified on such grounds, and the same formula
would have been used to compute the assessment regardless of the
State's damages or whether it suffered any damages. Montana's tax
is not the kind of remedial sanction that may follow the first
punishment of a criminal offense. It is a second punishment that
must be imposed during the first prosecution or not at all. P.
784.
986 F.2d
1308, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
BLACKMUN, KENNEDY, SOUTER, and GINSBURG, JJ., joined. REHNQUIST, C.
J., post, p. 785, and O'CONNOR, J., post, p. 792, filed dissenting
opinions. SCALIA, J., filed a dissenting opinion, in which THOMAS,
J., joined, post, p. 798.
Paul Van Tricht, Special Assistant Attorney General of Montana,
argued the cause for petitioner. With him on the briefs was David W
Woodgerd, Special Assistant Attorney General.
James A. Feldman argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Solicitor
General Days and Deputy Solicitor General Bender.
769
James H. Goetz argued the cause and filed a brief for
respondents. *
JUSTICE STEVENS delivered the opinion of the Court. This case
presents the question whether a tax on the possession of illegal
drugs assessed after the State has imposed a criminal penalty for
the same conduct may violate the constitutional prohibition against
successive punishments for the same offense.1
*Dan Morales, Attorney General of Texas, and William E. Storie,
Assistant Attorney General, filed a brief for the State of Texas et
al. as amici curiae urging reversal, joined by the Attorneys
General for their respective States as follows: Grant Woods of
Arizona, Daniel E. Lungren of California, Gale Norton of Colorado,
Richard Blumenthal of Connecticut, Robert A. Butterworth of
Florida, Michael
J. Bowers of Georgia, Robert A. Marks of
Hawaii, Larry EchoHawk of Idaho, Roland W Burris of Illinois,
Pamela Fanning Carter of Indiana, Bonnie
J. Campbell of
Iowa, Robert T. Stephan of Kansas, Richard P. Ieyoub of Louisiana,
Michael E. Carpenter of Maine, Hubert H. Humphrey III of Minnesota,
Don Stenberg of Nebraska, Frederick P. DeVesa of New Jersey, Tom
Udall of New Mexico, Michael F. Easley of North Carolina, Jeffrey
B. Pine of Rhode Island, T. Travis Medlock of South Carolina, Mark
Barnett of South Dakota, Jan Graham of Utah, and James E. Doyle of
Wisconsin.
1 The Fifth Amendment provides that "No person shall ... be
subject for the same offence to be twice put in jeopardy of life or
limb .... " The Double Jeopardy Clause protects against a second
prosecution for the same offense after acquittal, a second
prosecution for the same offense after conviction, and multiple
punishments for the same offense. See North Carolina v. Pearce,
395 U. S. 711,
717 (1969). Although its text mentions only harms to "life or
limb," it is well settled that the Amendment covers imprisonment
and monetary penalties. See, e. g., Ex parte Lange, 18 Wall. 163
(1874); United States v. Halper,
490 U. S. 435 (1989). In
Benton v. Maryland,
395 U. S. 784, 794
(1969), we held that this guarantee "represents a fundamental ideal
in our constitutional heritage, and that it should apply to the
States through the Fourteenth Amendment." See W. LaFave & J.
Israel, Criminal Procedure 1058-1059 (2d ed. 1992); 2 D. Rudstein,
C. Erlinder, & D. Thomas, Criminal Constitutional Law ,
11.01[3][b], pp. 11-59 to 11-60 (1993).
770
I
Montana's Dangerous Drug Tax Act 2 took effect on October 1,
1987. The Act imposes a tax "on the possession and storage of
dangerous drugs," 3 Mont. Code Ann. § 15-25-111 (1987), and
expressly provides that the tax is to be "collected only after any
state or federal fines or forfeitures have been satisfied." §
15-25-111(3). The tax is either 10 percent of the assessed market
value of the drugs as determined by the Montana Department of
Revenue (DOR) or a specified amount depending on the drug ($100 per
ounce for marijuana, for example, and $250 per ounce for hashish),
whichever is greater. § 15-25-111(2). The Act directs the state
treasurer to allocate the tax proceeds to special funds to support
"youth evaluation" and "chemical abuse" programs and "to enforce
the drug laws." §§ 15-25-121, 15-25-122.4
In addition to imposing reporting responsibilities on law
enforcement agencies,5 the Act also authorizes the DOR to
2 Mont. Code Ann. §§ 15-25-101 through 15-25-123 (1987). See In
re Kurth Ranch, 145 B. R. 61, 66 (Bkrtcy. Ct. Mont. 1990). We refer
throughout this opinion to the 1987 edition of the Montana Code-the
version in effect at the time of the Kurths' arrest. Some sections
of the Dangerous Drug Tax Act have since been amended.
3 The Act defines "dangerous drug" as that term is defined in
the Montana Code provisions that criminalize the possession of such
drugs, see Mont. Code Ann. §§ 15-25-103(2), 50-32-101(6), 45-9-102
(1987), and authorize their seizure, see § 44-12-103.
4 According to the Act's preamble, the Montana Legislature
recognizes that the use of dangerous drugs is not acceptable, but
concludes that because the manufacturing and sale of such drugs has
an economic impact on the State, "it is appropriate that some of
the revenue generated by this tax be devoted to continuing
investigative efforts directed toward the identification, arrest,
and prosecution of individuals involved in conducting illegal
continuing criminal enterprises that affect the distribution of
dangerous drugs in Montana." 1987 Mont. Laws, ch. 563, p. 1416.
5 Section 5(1) of the Act provides that "[a]lllaw enforcement
personnel and peace officers shall promptly report each person
subject to the tax to the department, together with such other
information which the depart-
771
adopt rules to administer and enforce the tax. Under those
rules, taxpayers must file a return within 72 hours of their
arrest. Mont. Admin. Rule 42.34.102(1) (1988). The Rule also
provides that "[a]t the time of arrest law enforcement personnel
shall complete the dangerous drug information report as required by
the department and afford the taxpayer an opportunity to sign it."
Rule 42.34.102(3). If the taxpayer refuses to do so, the law
enforcement officer is required to file the form within 72 hours of
the arrest. Ibid. The "associated criminal nature of assessments
under this act" justifies the expedited collection procedures. See
Rule 42.34.103(3). The taxpayer has no obligation to file a return
or to pay any tax unless and until he is arrested.
II
The six respondents, all members of the extended Kurth family,
have for years operated a mixed grain and livestock farm in central
Montana.6 In 1986 they began to cultivate and sell marijuana. About
two weeks after the new Dangerous Drug Tax Act went into effect,
Montana law enforcement officers raided the farm, arrested the
Kurths, and confiscated all the marijuana plants, materials, and
paraphernalia they found. In re Kurth Ranch, 145 B. R. 61, 66
(Bkrtcy. Ct. Mont. 1990).7 The raid put an end to the
ment may require, in a manner and on a form prescribed by the
department." Mont. Code Ann. § 15-25-113(1) (1987).
6 The respondents are Richard Kurth; his wife, Judith Kurth;
their son, Douglas Kurth; their daughter, Cindy Halley; Douglas'
wife, Rhonda Kurth; and Cindy's husband, Clayton Halley.
7 The Drug Tax Report listed the following seized items:
"Item #1: 2155 marijuana plants in various stages of growth,
"Item #2: 7 gallons of hash oil, (lined out),
"Item #3: 4 bags of marijuana at two pounds each, "Item #4:
65/one gram vials of hash tar,
"Item #5: 14 baby food size jars of hash tar,
"Item #6: 7 pint jars of hash tar,
772
marijuana business and gave rise to four separate legal
proceedings.
In one of those proceedings, the State filed criminal charges
against all six respondents in the Montana District Court, charging
each with conspiracy to possess drugs with the intent to sell,
Mont. Code Ann. § 45-4-102 (1987), or, in the alternative,
possession of drugs with the intent to sell, § 45-9-103.8 Each
respondent initially pleaded not guilty, but subsequently entered
into a plea agreement. On July 18, 1988, the court sentenced
Richard Kurth and Judith Kurth to prison and imposed suspended or
deferred sentences on the other four family members.9
The county attorney also filed a civil forfeiture action seeking
recovery of cash and equipment used in the marijuana operation. The
confiscated drugs were not involved in that action, presumably
because law enforcement agents had destroyed them after an
inventory. Respondents settled the forfeiture action with an
agreement to forfeit $18,016.83 in cash and various items of
equipment.
"Item #7: 1 bag of marijuana, 1/4 pound,
"Item #8: 5 plastic bags of marijuana, total 2230 grams,
"Item #9: approximately 100 pounds of marijuana stems, leaves,
parts, etc." 145 B. R., at 66-67.
sPlaintiff's Exhs. 3, 5, 7, 9, 11, 13; 145 B. R., at 64-65.
Richard Kurth was also charged with criminal sale of dangerous
drugs (marijuana), Mont. Code Ann. §45-9-101 (1987), criminal
possession of a dangerous drug (marijuana) with intent to sell, §
45-9-103, solicitation to commit the offense of criminal possession
of a dangerous drug (marijuana) with intent to sell, §45-4-101, and
criminal possession of a dangerous drug (hashish), §45-9-102. See
Plaintiff's Exh. 3.
9 Because only one respondent, Richard Kurth, was adjudged
guilty of the offense of possession (the other five pleaded guilty
to the conspiracy count), Montana has suggested that only he has
standing to argue that the tax on possession constitutes a second
punishment for the same offense. Respondents counter that Montana's
withdrawal of the possession charges pursuant to the plea
agreements would bar a second prosecution for possession. The issue
was not raised below, so we do not address it.
773
The third proceeding involved the assessment of the new tax on
dangerous drugs. Despite difficulties the DOR had in applying the
Act for the first time, it ultimately attempted to collect almost
$900,000 in taxes on marijuana plants, harvested marijuana, hash
tar and hash oil, interest, and penalties.10 The Kurths contested
the assessments in administrative proceedings. Those proceedings
were automatically stayed in September 1988, however, when the
Kurths initiated the fourth legal proceeding triggered by the raid
on their farm: a petition for bankruptcy under Chapter 11 of the
Bankruptcy Code. See 11 U. S. C. § 362(a).
In the bankruptcy proceedings, the Kurths objected to the DOR's
proof of claim for unpaid drug taxes and challenged the
constitutionality of the Montana tax. After a trial, the Bankruptcy
Court held most of the assessment invalid as a matter of state
law,l1 but concluded that an assessment of $181,000 on 1,811 ounces
of harvested marijuana was authorized by the Act. It held that
assessment invalid under the Federal Constitution.
Relying primarily on United States v. Halper,
490 U. S. 435 (1989), the
Bankruptcy Court decided that the assessment constituted a form of
double jeopardy. The court rejected the State's argument that the
tax was not a penalty because it was designed to recover law
enforcement costs; as the court noted, the DOR "failed to introduce
one scintilla of evidence as to cost of the above government
programs or costs of law enforcement incurred to combat illegal
drug
10 The precise figure appears to be $894,940.99. 145 B. R., at
68. The Court of Appeals' figure of "nearly $865,000," In re Kurth
Ranch,
986 F.2d
1308, 1310
(CA9 1993), apparently failed to take account
of the $30,000 collected before computation of the final
assessment. 145 B. R., at 68.
11 Specifically, the Bankruptcy Court held that the assessments
on the live marijuana plants and the marijuana oil were "arbitrary"
and "lacked any basis in fact." Id., at 69.
774
activity." 145 B. R., at 74. After noting that a portion of the
assessment resulted in a tax eight times the product's market
value,12 the court explained that the punitive character of the tax
was evident
"because drug tax laws have historically been regarded as penal
in nature, the Montana Act promotes the traditional aims of
punishment-retribution and deterrence, the tax applies to behavior
which is already a crime, the tax allows for sanctions by restraint
of Debtors' property, the tax requires a finding of illegal
possession of dangerous drugs and therefore a finding of scienter,
the tax will promote elimination of illegal drug possession, and
the tax appears excessive in relation to the alternate purpose
assigned, especially in the absence of any record developed by the
State as to societal costs. Finally, the tax follows arrest for
possession of illegal drugs and the tax report is made by law
enforcement officers, not the taxpayer, who mayor may not sign the
report." Id., at 75-76.
These aspects led the court to the "inescapable conclusion" that
the drug tax statute's purpose was deterrence and punishment. Id.,
at 76.
The District Court affirmed. Agreeing with the Bankruptcy
Court's findings and reasoning, it concluded that the Montana
Dangerous Drug Tax Act "simply punishes the Kurths a second time
for the same criminal conduct." In re Kurth Ranch, CV -90-084-GF,
1991 WL 365065 (D. Mont., Apr. 23, 1991) (reprinted at App. to Pet.
for Cert. 22). That
12 That portion is the tax imposed upon 100 pounds of "shake."
"Shake" refers to the stems, leaves, and other loose parts of the
marijuana plant that have less value because of their lower levels
of tetrahydrocannabinol (THC), the chemical substance in marijuana
that activates a user's senses. Id., at 66. Officials placed the
market value for shake at $200 per pound. Thus, when Montana taxed
the shake at $100 per ounce, or $1,600 per pound, it taxed it at
eight times its market value. Id., at 72.
775
and the DOR's failure to provide an accounting of its actual
damages or costs convinced the Bankruptcy Court that the tax
assessments violated the Fifth Amendment's Double Jeopardy Clause.
Ibid.
The Court of Appeals for the Ninth Circuit also affirmed, but
based its conclusion largely on the State's refusal to offer
evidence justifying the tax, and accordingly refused to hold the
tax unconstitutional on its face. In re Kurth Ranch,
986 F.2d
1308, 1312 (1993). The court first determined that under
Halper, a disproportionately large civil penalty can be punitive
for double jeopardy purposes. 986 F. 2d, at 1310. That the
assessment is called a tax, as opposed to some kind of penalty, is
not controlling. Id., at 1310-1311. The central inquiry under
Halper, the court determined, is whether the sanction imposed is
rationally related to the damages the government suffered. 986 F.
2d, at 1311. That inquiry only applies to cases in which there has
been a separate criminal conviction, however.13 The court concluded
that the Kurths were entitled to an accounting to determine if the
sanction constitutes an impermissible second punishment, and
because the State refused to offer any such evidence, it held the
tax unconstitutional as applied to the Kurths. Id., at 1312.
While this case was pending on appeal, the Montana Supreme Court
reversed two lower state-court decisions that had held that the
Dangerous Drug Tax Act was a form of double jeopardy. Sorensen v.
State Dept. of Revenue, 254 Mont. 61, 836 P. 2d 29 (1992). Over the
dissent of two jus-
13 It is on this basis that the court distinguished this Court's
cases holding a federal marijuana tax to be nonpunitive, see Minor
v. United States,
396
U. S. 87 (1969); United States v. Sanchez,
340 U. S. 42 (1950), which
did not involve previous criminal convictions. 986 F. 2d, at 1311.
The court acknowledged that a State may legitimately tax criminal
activities, ibid., (citing Marchetti v. United States,
390 U. S. 39, 44 (1968)),
and that a civil sanction need not satisfy a remedial analysis when
it is imposed apart from a criminal conviction. 986 F. 2d, at 1311
(citing Commonwealth Edison Co. v. Montana,
453 U. S. 609, 623
(1981)).
776
tices, the State Supreme Court found that the legislature had
intended to establish a civil, not a criminal, penalty and that the
tax had a remedial purpose other than promoting retribution and
deterrence. Id., at 65, 836 P. 2d, at 31. The court found that
Halper was not controlling, both because it expressly announced" 'a
rule for the rare case'" and because the case involved a civil
penalty, not a tax. 254 Mont., at 67, 836 P. 2d, at 32-33. The
Sorensen court concluded that the drug tax was not excessive and
that a tax, unlike the civil sanction at issue in Halper, requires
no proof of the State's remedial costs on the part of the State.
254 Mont., at 67-68, 836 P. 2d, at 33.
The Montana Supreme Court's decision is directly at odds with
the conclusion reached in the federal proceedings involving the
Kurths. We therefore granted certiorari to review the decision of
the Court of Appeals. 509 U. S. 953 (1993). We now affirm its
judgment.
III
In Halper we considered "whether and under what circumstances a
civil penalty may constitute 'punishment' for the purposes of
double jeopardy analysis." 490 U. S., at 436. Our answer to that
question does not decide the different question whether Montana's
tax should be characterized as punishment.
Halper was convicted of 65 separate violations of the criminal
false claims statute, 18 U. S. C. § 287, each involving a demand
for $12 in reimbursement for medical services worth only $3. After
Halper was sentenced to two years in prison and fined $5,000, the
Government filed a separate action to recover a $2,000 civil
penalty for each of the 65 violations. See 31 U. S. C. § 3729 (1982
ed., Supp. II). The District Court found that the $130,000 recovery
the statute authorized "bore no 'rational relation' to the sum of
the Government's $585 actual loss plus its costs in investigating
and prosecuting Halper's false claims." 490 U. S., at 439. In
777
the court's view, a civil penalty "more than 220 times greater
than the Government's measurable loses] qualified as punishment"
that was barred by the Double Jeopardy Clause. Ibid.
On direct appeal to this Court, we rejected the Government's
submission that the Double Jeopardy Clause only applied to
punishment imposed in criminal proceedings, reasoning that its
violation "can be identified only by assessing the character of the
actual sanctions imposed on the individual by the machinery of the
state." Id., at 447.14 In making such an assessment, "the labels
'criminal' and 'civil' are not of paramount importance." Ibid.
Accepting the District Court's findings, we held that "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." Id., at 448-449.
Halper thus decided that the legislature's description of a
statute as civil does not foreclose the possibility that it has a
punitive character.15 We also recognized in Halper that a so-called
civil "penalty" may be remedial in character if it merely
reimburses the government for its actual costs arising from the
defendant's criminal conduct. Id., at 449-450,
14 We noted, however, that whether a sanction constitutes
punishment is not determined from the defendant's perspective, as
even remedial sanctions carry the "sting of punishment." 490 U. S.,
at 447, n. 7 (citing United States ex rel. Marcus v. Hess,
317 U. S. 537, 551
(1943)).
15 Notably, in reaching that conclusion we relied in part on an
earlier case recognizing that a tax statute might be considered
punitive in character for double jeopardy purposes. See 490 U. S.,
at 443. That case, United States v. La Franca,
282 U. S. 568 (1931),
observed that the words "tax" and "penalty" "are not
interchangeable, one for the other" and that "if an exaction be
clearly a penalty it cannot be converted into a tax by the simple
expedient of calling it such." Id., at 572. See also Lipke v.
Lederer,
259 U. S.
557, 561 (1922) ("The mere use of the word 'tax' in an act
primarily designed to define and suppress crime is not enough to
show that within the true intendment of the term a tax was
laid").
778
452. We therefore remanded the case to the District Court to
determine what portion of the statutory penalty could be sustained
as compensation for the Government's actual damages.
Halper did not, however, consider whether a tax may similarly be
characterized as punitive.
IV
Criminal fines, civil penalties, civil forfeitures, and taxes
all share certain features: They generate government revenues,
impose fiscal burdens on individuals, and deter certain behavior.
All of these sanctions are subject to constitutional constraints. A
government may not impose criminal fines without first establishing
guilt by proof beyond a reasonable doubt. Cf. In re Winship,
397 U. S. 358
(1970). A defendant convicted and punished for an offense may not
have a nonremedial civil penalty imposed against him for the same
offense in a separate proceeding. United States v. Halper,
490 U. S. 435 (1989). A
civil forfeiture may violate the Eighth Amendment's proscription
against excessive fines. Austin v. United States,
509 U. S. 602 (1993). And
a statute imposing a tax on unlawful conduct may be invalid because
its reporting requirements compel taxpayers to incriminate
themselves. Marchetti v. United States,
390 U. S. 39 (1968).
As a general matter, the unlawfulness of an activity does not
prevent its taxation. Id., at 44; United States v. Constantine,
296 U. S. 287,
293 (1935); James v. United States,
366 U. S. 213 (1961).
Montana no doubt could collect its tax on the possession of
marijuana, for example, if it had not previously punished the
taxpayer for the same offense, or, indeed, if it had assessed the
tax in the same proceeding that resulted in his conviction.
Missouri v. Hunter,
459 U. S. 359, 368-369
(1983); see also Halper, 490 U. S., at 450. Here, we ask only
whether the tax has punitive characteris-
779
tics that subject it to the constraints of the Double Jeopardy
Clause.
Although we have never held that a tax violated the Double
Jeopardy Clause, we have assumed that one might.16 In the context
of other constitutional requirements, we have repeatedly examined
taxes for constitutional validity. We have cautioned against
invalidating a tax simply because its enforcement might be
oppressive or because the legislature's motive was somehow suspect.
A. Magnano Co. v. Hamilton,
292 U. S. 40, 44 (1934).
Yet we have also recognized that "there comes a time in the
extension of the penalizing features of the so-called tax when it
loses its character as such and becomes a mere penalty with the
characteristics of regulation and punishment." Id., at 46 (citing
Child Labor Tax Case,
259 U. S. 20, 38 (1922)).
That comment, together with Halper's unequivocal statement that
labels do not control in a double jeopardy inquiry, indicates that
a tax is not immune from double jeopardy scrutiny simply because it
is a tax.
Halper recognized that "[t]his constitutional protection is
intrinsically personal," and that only "the character of the actual
sanctions" can substantiate a possible double jeopardy violation.
490 U. S., at 447. Whereas fines, penalties, and forfeitures are
readily characterized as sanctions, taxes are typically different
because they are usually motivated by
16 In Helvering v. Mitchell,
303 U. S. 391 (1938), for
example, this Court considered a Revenue Act provision requiring
the taxpayer to pay an additional 50 percent of the total amount of
any deficiency due to fraud with an intent to evade the tax. The
Court assumed such a penalty could trigger double jeopardy
protection if it were intended for punishment, but it nevertheless
held that the statute was constitutional because the 50 percent
addition to the tax was remedial, not punitive. Id., at 398-405.
Although the penalty at issue in Mitchell is arguably better
characterized as a sanction for fraud than a tax, the Court
described it interchangeably as a "sanction," id., at 405, 406, an
"addition to the tax," id., at 405, an "assessment," id., at 396,
and a "tax," id., at 398, making nothing of the potential import of
the distinction.
780
revenue-raIsmg, rather than punitive, purposes. Yet at some
point, an exaction labeled as a tax approaches punishment, and our
task is to determine whether Montana's drug tax crosses that
line.
We begin by noting that neither a high rate of taxation nor an
obvious deterrent purpose automatically marks this tax as a form of
punishment. In this case, although those factors are not
dispositive, they are at least consistent with a punitive
character. A significant part of the assessment was more than eight
times the drug's market value-a remarkably high taxP That the
Montana Legislature intended the tax to deter people from
possessing marijuana is beyond question.18 The DOR reminds us,
however, that many taxes that are presumed valid, such as taxes on
cigarettes and alcohol, are also both high and motivated to
some
17The State recovered 1,811 ounces of marijuana with an
estimated value of $46,000, and taxed the marijuana at $100 per
ounce (that is, the greater of 10 percent of market value or $100
per ounce), for a total tax of $181,000. The State thus taxed the
drugs at about 400 percent of their market value. Compared to
similar taxes on legal goods and activities, Montana's tax-assessed
at a rate of 10 percent or roughly 400 percent of market value,
whichever is greater-appears to be unrivaled. Even the taxes
identified by the United States, which supports the DOR as amicus
curiae, do not approach a level this high. See Brief for United
States as Amicus Curiae 23-24. The United States notes
hypothetically, for example, that the current 24-cent-per-pack
federal tax on cigarettes could, under a new health plan, be
increased to 99 cents, resulting in a total tax burden that "could
easily surpass" the 80 percent rate that Montana imposed on the
part of the marijuana consisting of the higher valued " 'buds.' "
Ibid. The Government offers no such example, however, of a tax
equivalent to that assessed on the combined cache of buds and lower
valued "shake." See n. 12, supra.
18 For example, although the Act's preamble evinces a clear
motivation to raise revenue, it also indicates that the tax will
provide for anticrime initiatives by "burdening" violators of the
law instead of "law abiding taxpayers"; that use of dangerous drugs
is not acceptable; and that the Act is not intended to "give
credence" to any notion that manufacturing, selling, or using drugs
is legal or proper. 1987 Mont. Laws, ch. 563, p. 1416.
781
extent by an interest in deterrence. Indeed, although no double
jeopardy challenge was at issue, this Court sustained the steep
$100-per-ounce federal tax on marijuana in United States v.
Sanchez,
340 U. S.
42 (1950). Thus, while a high tax rate and deterrent purpose
lend support to the characterization of the drug tax as punishment,
these features, in and of themselves, do not necessarily render the
tax punitive. Cf. Sonzinsky v. United States,
300 U. S. 506, 513514
(1937).
Other unusual features, however, set the Montana statute apart
from most taxes. First, this so-called tax is conditioned on the
commission of a crime. That condition is "significant of penal and
prohibitory intent rather than the gathering of revenue." 19
Moreover, the Court has relied on the absence of such a condition
to support its conclusion that a particular federal tax was a
civil, rather than a criminal, sanction.20 In this case, the tax
assessment not only hinges on the commission of a crime, it also is
exacted only after the taxpayer has been arrested for the precise
conduct that gives rise to the tax obligation in the first placeP
Per-
19 United States v. Constantine,
296 U. S. 287, 295 (1935)
(concluding that a tax was motivated by penal instead of
revenue-raising intent in part because the taxpayer had to pay an
additional sum based on his illegal conduct). See also United
States v. La Franca, 282 U. S., at 571, 575 (holding that a liquor
tax assessed only against those prosecuted for illegal manufacture
or sale of liquor was barred on statutory grounds, thus avoiding
the "grave constitutional question" whether double jeopardy
principles precluded such an assessment).
20 In Sanchez we examined a federal marijuana tax, IRC §
2590-(a)(2) (since repealed, but last codified at 26 U. S. C. §4741
et seq. (1964)), that taxed the transfer of marijuana to a person
who has not paid a special tax and registered. Under the statute,
the transferor's liability arose when the transferee failed to pay
the tax; as a result, "[s]ince his tax liability does not in effect
rest on criminal conduct, the tax can be properly called a civil
rather than a criminal sanction." 340 U. S., at 45.
21 This statute therefore does not raise the question whether an
ostensibly civil proceeding that is designed to inflict punishment
may bar a subsequent proceeding that is admittedly criminal in
character. See JUSTICE
782
sons who have been arrested for possessing marijuana constitute
the entire class of taxpayers subject to the Montana tax.
Taxes imposed upon illegal activities are fundamentally
different from taxes with a pure revenue-raising purpose that are
imposed despite their adverse effect on the taxed activity. But
they differ as well from mixed-motive taxes that governments impose
both to deter a disfavored activity and to raise money. By imposing
cigarette taxes, for example, a government wants to discourage
smoking. But because the product's benefits-such as creating
employment, satisfying consumer demand, and providing tax
revenuesare regarded as outweighing the harm, that government will
allow the manufacture, sale, and use of cigarettes as long as the
manufacturers, sellers, and smokers pay high taxes that reduce
consumption and increase government revenue. These justifications
vanish when the taxed activity is completely forbidden, for the
legitimate revenue-raising purpose that might support such a tax
could be equally well served by increasing the fine imposed upon
conviction.22
SCALIA'S dissent, post, at 804. Nor does the statute require us
to comment on the permissibility of "multiple punishments" imposed
in the same proceeding, cf. Ex parte Lange, 18 Wall. 163 (1874);
North Carolina v. Pearce,
395 U. S. 711 (1969),
since it involves separate sanctions imposed in successive
proceedings.
22 In this case, it is significant that the same sovereign that
criminalized the activity also imposed the tax. Contrarily, most of
our cases confirming that the unlawfulness of an activity does not
prevent its taxation involve taxes on acts prohibited by other
sovereigns. For example, United States v. Constantine,
296 U. S. 287 (1935),
involved a federal excise tax on retail liquor sales that violated
state law. Id., at 293. Likewise, in James v. United States,
366 U. S. 213
(1961), a federal tax on embezzled money was imposed upon a man who
had pleaded guilty in state court to conspiracy to embezzle. Id.,
at 214. And Marchetti v. United States,
390 U. S. 39 (1968),
involved a federal tax on gambling activities primarily prohibited
under state law, though as the Court there noted, some federal
statutes also prohibited activities ancillary to wagering. Id., at
44-47. The importance of the distinction between same sovereign
proceedings
783
The Montana tax is exceptional for an additional reason.
Although it purports to be a species of property tax-that is, a
"tax on the possession and storage of dangerous drugs," Mont. Code
Ann. § 15-25-111 (1987)-it is levied on goods that the taxpayer
neither owns nor possesses when the tax is imposed. Indeed, the
State presumably destroyed the contraband goods in this case before
the tax on them was assessed. If a statute that amounts to a
confiscation of property is unconstitutional, Heiner v. Donnan,
285 U. S. 312,
326 (1932); Nichols v. Coolidge,
274 U. S. 531, 542
(1927), a tax on previously confiscated goods is at least
questionable.23 A tax on "possession" of goods that no longer exist
and that the taxpayer never lawfully possessed has an unmistakable
punitive character. This tax, imposed on criminals and no others,
departs so far from normal revenue laws as to become a form of
punishment.
Taken as a whole, this drug tax is a concoction of anomalies,
too far removed in crucial respects from a standard tax assessment
to escape characterization as punishment for the purpose of double
jeopardy analysis.24
and dual sovereign proceedings also is borne out by our cases
holding that the Constitution does not prohibit successive
prosecutions by different sovereigns based on the same conduct.
See, e. g., Bartkus v. Illinois,
359 U. S. 121 (1959)
(state prosecution after federal); Abbate v. United States,
359 U. S. 187
(1959) (federal prosecution after state).
23 Curiously, one of two alternative measures of the tax is the
market value of a substance that cannot legally be marketed.
24 Courts-including this Court in United States v. Sanchez,
340 U. S. 42
(1950)-have frequently commented on the punishing and deterrent
nature of drug taxes. See, e. g., Sims v. State Tax Comm'n, 841 P.
2d 6, 13 (Utah 1992); Rehg v. Illinois Dept. of Revenue, 152 Ill.
2d 504, 515, 605 N. E. 2d 525, 531 (1992); State v. Gallup, 500 N.
W. 2d 437, 445 (Iowa 1993); State v. Roberts, 384 N. W. 2d 688, 691
(S. D. 1986); State v. Berberich, 284 Kan. 854, 811 P. 2d 1192,
1200 (1991); State v. Durrant, 244 Kan. 522, 769 P. 2d 1174, 1181,
cert. denied sub nom. Dressel v. Kansas, 492 U. S. 923 (1989).
784
v
Because Montana's tax is fairly characterized as punishment, the
judgment of the Court of Appeals must be affirmed. In Halper, we
recognized that a civil penalty may be imposed as a remedy for
actual costs to the State that are attributable to the defendant's
conduct. 490 U. S., at 452. Yet as THE CHIEF JUSTICE points out,
tax statutes serve a purpose quite different from civil penalties,
and Halper's method of determining whether the exaction was
remedial or punitive "simply does not work in the case of a tax
statute." Post, at 787 (dissenting opinion). Subjecting Montana's
drug tax to Halper's test for civil penalties is therefore
inappropriate. Even if it were proper to permit such a showing,
Montana has not claimed that its assessment in this case even
remotely approximates the cost of investigating, apprehending, and
prosecuting the Kurths, or that it roughly relates to any actual
damages that they caused the State. And in any event, the formula
by which Montana computed the tax assessment would have been the
same regardless of the amount of the State's damages and, indeed,
regardless of whether it suffered any harm at all.
This drug tax is not the kind of remedial sanction that may
follow the first punishment of a criminal offense. Instead, it is a
second punishment within the contemplation of a constitutional
protection that has "deep roots in our history and jurisprudence,"
Halper, 490 U. S., at 440, and therefore must be imposed during the
first prosecution or not at all. The proceeding Montana initiated
to collect a tax on the possession of drugs was the functional
equivalent of a successive criminal prosecution that placed the
Kurths in jeopardy a second time "for the same offence."
The judgment of the Court of Appeals is affirmed.
It is so ordered.
785
CHIEF JUSTICE REHNQUIST, dissenting.
Without giving any indication that it is doing so, the Court's
opinion drastically alters existing law. We have never previously
subjected a tax statute to double jeopardy analysis, but under
today's decision a state tax statute is struck down because its
application violates double jeopardy. The Court starts off on the
right foot. It correctly recognizes that our opinion in United
States v. Halper,
490
U. S. 435 (1989), says nothing about the possible double
jeopardy concerns of a tax, as opposed to a civil fine like the one
confronted in Halper. Ante, at 777. I agree with the Court's
rejection of the Halper mode of analysis, which, with its effort to
determine whether a penalty statute is remedial or punitive, simply
does not fit in the case of a tax statute. Ante, at 783. But the
Court then goes astray and the end result of its decision is a
hodgepodge of criteria-many of which have been squarely rejected by
our previous decisions-to be used in deciding whether a tax statute
qualifies as "punishment."
The Court cites the case of Helvering v. Mitchell,
303 U. S. 391 (1938), as
one in which a tax statute was subjected to double jeopardy
analysis. But I agree with the Court's statement that the "penalty
at issue in Mitchell is arguably better characterized as a sanction
for fraud than a tax." Ante, at 779, n. 16.1 All of our other cases
in this area of
1 I disagree with the Court's statement that the Mitchell Court
alternately characterized the penalty there in question as a tax.
Ante, at 779, n. 16. The only language which was used by the
Mitchell Court to which we are referred for this proposition is 303
U. S., at 398, where the Court uses the word "tax" three times, but
only in the context of summarizing the parties' arguments. As for
the first two times, the word "tax" is mentioned only in discussing
the Government's argument that the indictment of Mitchell for
willful evasion of the tax in question did not raise the same issue
as did the civil proceeding for the fraud penalty for purposes of
res judicata. The Court simply said:
"Since there was not even an adjudication that Mitchell did not
wilfully attempt to evade or defeat the tax, it is not necessary to
decide whether
786
the law involved claims of double jeopardy where a statute
imposing what was denominated a "civil penalty" was invoked
following a separate criminal proceeding based on an indictment for
fraud. In Mitchell, supra, United States ex rel. Marcus v. Hess,
317 U. S. 537
(1943), and Rex Trailer Co. v. United States,
350 U. S. 148 (1956), the
double jeopardy claim was rejected; in United States v. Halper,
supra, a double jeopardy claim was upheld for the first time.
The Court, unlike the Court of Appeals below, wisely does not
subject the Montana tax to the Halper analysis and it is thus
unnecessary to determine whether Halper was correctly decided. See
post, at 802-805 (SCALIA, J., dissenting). This clearly is not the
"rare case" contemplated by Halper, nor does this tax involve a
"fixed-penalty provision." Halper, supra, at 449. In Halper, we
held that the double jeopardy test was whether or not the penalty
statute there enabled the Government to recover more than an
approximation of its costs in bringing the fraudulent actor to
book, because compensation for the Government's loss is the avowed
purpose of a civil penalty statute. But here we are confronted with
a tax statute, and the purpose of a tax statute is not to recover
the costs incurred by the Government for bringing someone to book
for some violation of law, but is instead either to raise revenue
or to deter conduct, or both. See, e. g., Welch v. Henry,
305 U. S. 134, 146
(1938); Sonzinsky v. United States,
300 U. S. 506, 513
(1937). Thus, despite JUSTICE O'CONNOR'S attempt to view this case
through the Halper lens, post, at 793, the reasoning quite properly
employed in Halper to decide whether the exaction was reme-
such an adjudication would be decisive also of this issue of
fraud." Ibid. The word "tax" is mentioned a third time in setting
out the respondent's argument that "this proceeding is barred under
the doctrine of double jeopardy because the 50 per centum addition
... is not a tax, but a criminal penalty intended as punishment for
allegedly fraudulent acts." Ibid. It is telling to note that the
Court immediately thereafter denotes the 50% addition as a
"sanction," and not a tax. Id., at 398-399.
787
dial or punitive simply does not work in the case of a tax
statute. Tax statutes need not be based on any benefit accorded to
the taxpayer or on any damage or cost incurred by the Government as
a result of the taxpayer's activities. Commonwealth Edison Co. v.
Montana,
453 U. S.
609, 622 (1981). Thus, in analyzing the instant tax statute,
the inquiry into the State's "damages caused by the [Kurths']
wrongful conduct," post, at 794 (O'CONNOR, J., dissenting), is
unduly restrictive.
The proper question to be asked is whether the Montana drug tax
constitutes a second punishment under the Double Jeopardy Clause
for conduct already punished criminally. The Court asks the right
question, ante, at 780, but reaches the wrong conclusion.
Taxes are customarily enacted to raise revenue to support the
costs of government. Cf. ante, at 779-780 ("[T]axes are typically
different [than fines, penalties, and forfeitures] because they are
usually motivated by revenue-raising ... purposes"). It is also
firmly established that taxes may be enacted to deter or even
suppress the taxed activity. Constitutional attacks on such laws
have been regularly turned aside in our previous decisions. In A.
Magnano Co. v. Hamilton,
292 U. S. 40 (1934), for
example, the Court upheld against a due process challenge a steep
excise tax imposed by the State of Washington on processors of
oleomargarine during the depths of the depression. In Sonzinsky v.
United States, supra, at 513, the Court upheld an annual federal
firearms tax as a valid exercise of the taxing power of Congress.
The Court there said "it has long been established that an Act of
Congress which on its face purports to be an exercise of the taxing
power is not any the less so because the tax is burdensome or tends
to restrict or suppress the thing taxed." In United States v.
Sanchez,
340 U. S.
42 (1950), the Court upheld the former federal tax on marijuana
at the rate of $100 per ounce against a challenge that the tax was
a penalty, rather than a true tax. In so doing, the Court
788
noted that "[i]t is beyond serious question that a tax does not
cease to be valid merely because it regulates, discourages, or even
definitely deters the activity taxed." Id., at 44. And, as the
Court concedes, ante, at 778-779, it is well settled that the
unlawfulness of an activity does not prevent its taxation.
Marchetti v. United States,
390 U. S. 39, 44 (1968);
United States v. Constantine,
296 U. S. 287, 293
(1935).
The Court's opinion today gives a passing nod to these cases,
but proceeds to hold that a high tax rate and a deterrent purpose
"lend support to the characterization of the drug tax as
punishment." Ante, at 781. The Court then discusses "[o]ther
unusual features" of the Montana tax which, it concludes, brands
this tax as a criminal penalty.
The Court first points to its conclusion that the so-called tax
is conditioned on the commission of a crime, ibid., a conclusion
that the State disputes, and for good reason. The relevant
provision of the rule, Mont. Admin. Rule 42.34.102(1) (1988), which
provides that the tax return "shall be filed within 72 hours of ...
arrest," merely acknowledges the practical realities involved in
taxing an illegal activity.2 Then, quite contrary to the teachings
of Marchetti, Constantine, and James v. United States,
366 U. S. 213 (1961), the
Court states that the justifications for mixed-motive taxes-imposed
both to deter and to raise revenue-vanish "when the taxed activity
is completely forbidden." Ante, at 782.
2 Other potential schemes for taxing illegal drug possession
will face similar pitfalls. Because the activity sought to be taxed
is illegal, individuals cannot be expected to voluntarily identify
themselves as subject to the tax. The Minnesota scheme cited by
respondents provides for the anonymous purchase of tax stamps prior
to, and independent of, any criminal prosecution. Minn. Stat. §
297D.01 et seq. (1992). Not surprisingly, when asked at oral
argument "Does Minnesota collect any money off that scheme ... Not
too many stamps being sold?," counsel for respondents admitted,
amidst laughter, that he did not know the answer. Tr. of Oral
Arg.41.
789
A second "unusual feature" identified by the Court is that the
tax is levied on drugs that the taxpayer neither owns or possesses
at the time of taxation. But here, the Court exalts form over
substance. Surely the Court is not suggesting that the State must
permit the Kurths to keep the contraband in order to tax its
possession. Cf. Constantine, supra, at 293 ("It would be strange if
one carrying on a business the subject of an excise should be able
to excuse himself from payment by the plea that in carrying on the
business he was violating the law"). And although Montana's
"Dangerous Drug Tax" is described as a tax on storage and
possession, it is clear from the structure and purpose of the Act
that it was passed for the legitimate purpose of raising revenue
from the profitable underground drug business. 1987 Mont. Laws, ch.
563 (preamble).3
I do not dispute the Court's conclusion that an assessment which
is labeled a "tax" could, under some conceivable cir-
3 The preamble to the 1987 Montana Dangerous Drug Tax Act
provides: ''WHEREAS, dangerous drugs are commodities having
considerable value, and the existence in Montana of a large and
profitable dangerous drug industry and expensive trade in dangerous
drugs is irrefutable; and
''WHEREAS, the state does not endorse the manufacturing of or
trading in dangerous drugs and does not consider the use of such
drugs to be acceptable, but it recognizes the economic impact upon
the state of the manufacturing and selling of dangerous drugs;
and
''WHEREAS, it is appropriate that some of the revenue generated
by this tax be devoted to continuing investigative efforts directed
toward the identification, arrest, and prosecution of individuals
involved in conducting illegal continuing criminal enterprises that
affect the distribution of dangerous drugs in Montana.
"THEREFORE, the Legislature of the State of Montana does not
wish to give credence to the notion that the manufacturing,
selling, and use of dangerous drugs is legal or otherwise proper,
but finds it appropriate in view of the economic impact of such
drugs to tax those who profit from drug-related offenses and to
dispose of the tax proceeds through providing additional anticrime
initiatives without burdening law abiding taxpayers."
Funds collected from the tax are earmarked for youth
evaluations, chemical abuse assessment and aftercare, and juvenile
detention facilities. Mont. Code Ann. § 15-25-122 (1993).
790
cumstances, constitute "punishment" for purposes of the Double
Jeopardy Clause. Ante, at 778, and n. 15, 779. The Court made a
similar finding in United States v. Constantine, supra, although in
the context of a different sort of challenge. At issue in that case
was the validity of a special $1,000 excise tax levied against all
persons dealing in the liquor business contrary to local law. Id.,
at 289, n. 1. In striking down the tax as an unlawful penalty
rather than a tax, the Court noted that the assessment was
conditioned on the imposition of a crime, and that it was "highly
exorbitant." Id., at 295.
But the Constantine factors are not persuasive in the present
context. As discussed above, I do not find the conditioning of the
tax on criminal conduct and arrest to be fatal to this tax's
validity; this characteristic simply reflects the reality of taxing
an illegal enterprise. Furthermore, the rate of taxation clearly
supports petitioner here. In Constantine, the special $1,000 excise
tax on the sale of alcohol was 40 times as great when compared to
the otherwise applicable $25 fee for retail liquor dealers such as
respondent. Ibid. When compared to the Montana tax, two points are
noteworthy. First, unlike the situation in Constantine, no tax or
fee is otherwise collected from individuals engaged in the illicit
drug business. Thus, an entire business goes without taxation.
Second, the Montana tax is not as disproportionate as the
additional excise tax in Constantine. The Court makes much of the
fact that the bulk of the assessmentthat imposed on the low-grade
"shake"-was more than eight times the market value of the drug.
Ante, at 780. But the Court glosses over the fact that the tax
imposed on the higher quality "bud" amounted to only 80% of that
product's market value.4
4 The Kurths were taxed for their possession of 130 ounces of
marijuana "bud," a substance of higher quality than the marijuana
"shake." The Bankruptcy Court found that the bud had a market value
of approximately
791
After averaging the effective tax rates on the two marijuana
products, the Court concludes that Montana's tax rate of four times
the market value appears to be "unrivaled." Ante, at 780, n. 17.
That may be so. But the proper inquiry is not whether the tax rate
is "unrivaled," but whether it is so high that it can only be
explained as serving a punitive purpose. When compared to similar
types of "sin" taxes on items such as alcohol and cigarettes, these
figures are not so high as to be deemed arbitrary or shocking. This
is especially so given both the traditional deference accorded to
state authorities regarding matters of taxation, and the fact that
a substantial amount of the illegal drug business will escape
taxation altogether.5
In short, I think the Court's conclusion that the tax here is a
punishment is very much at odds with the purpose and effect of the
Montana statute, as well as our previous decisions. After reviewing
the structure and language of the tax provision and comparing the
rate of taxation with similar types of sin taxes imposed on lawful
products, I would reach the contrary conclusion-that the Montana
tax has a nonpenal purpose of raising revenue, as well as the
legitimate purpose of deterring conduct, such that it should be
regarded as a genuine tax for double jeopardy purposes.
$2,000 per pound. The product was taxed at a minimum rate of
$100 per ounce ($1,600 per pound), or 80% of market value.
5 The federal tax on cigarettes is currently at 1.2 cents per
cigarette, or 24 cents per package. 26 U. S. C. § 5701(b). While
this does not exceed the cost of a pack of cigarettes, the current
proposal to boost the cigarette tax to 99 cents per pack could lead
to a total tax on cigarettes in some jurisdictions at a rate higher
than the 80% rate utilized in this case for the marijuana bud. That
the shake is taxed at a higher rate is consistent with the effect
of a fixed rate tax on a very low-quality, inexpensive product. See
26 U. S. C. § 4131(b)(1) (fixed tax on vaccines, ranging from 6
cents to $4.56 per dose); 26 U. S. C. §4681 (1988 ed., Supp. IV)
(fixed tax on ozone-depleting chemicals).
792
JUSTICE O'CONNOR, dissenting.
In an attempt to save their ranch from creditors, the extended
Kurth family turned to marijuana farming. "The business expanded to
the largest marijuana growing operation in the State of Montana
when shut down by law enforcement authorities in October, 1987." In
re Kurth Ranch, 145 B. R. 61, 66 (Bkrtcy. Ct. Mont. 1990). The
Kurths were convicted and sentenced on various state drug
charges.
During the raid on the ranch, authorities found 1,811 ounces of
harvested marijuana in the Kurths' possession. Under Montana law,
"[t]here is a tax on the possession and storage of dangerous
drugs," and "each person possessing or storing dangerous drugs is
liable for the tax." Mont. Code Ann. § 15-25-111(1) (1987). In the
case of marijuana, the tax is 10 percent of the market value of the
drugs or $100 per ounce, whichever is greater. § 15-25-111(2).
Pursuant to this law, the Montana Department of Revenue assessed a
tax of $181,000 against the Kurths. The Kurths argue, and the
courts below agreed, that this tax is a second punishment
prohibited by the Double Jeopardy Clause. See Schiro v. Farley,
510 U. S. 222,
229 (1994) (the Clause "'protects against multiple punishments for
the same offense,'" quoting North Carolina v. Pearce,
395 U. S. 711, 717
(1969)).
The government may, of course, tax illegal activity. See, e.
g., Marchetti v. United States,
390 U. S. 39, 44 (1968).
In fact, we have upheld, as within Congress' taxing authority, a
$100 per ounce tax on marijuana. United States v. Sanchez,
340 U. S. 42, 44 (1950).
But the power to tax illegal activity carries with it the danger
that the legislature will use the tax to punish the participants
for engaging in that activity. This is particularly true of taxes
assessed on the possession of illegal drugs: Because most drug
offenses involve the manufacture, possession, transportation, or
distribution of controlled substances, the State might use a tax on
possession to punish a participant in a drug crime twice for the
same conduct. We would certainly examine a $100 per ounce
fine
793
levied against a person who had previously been convicted and
sentenced for marijuana possession for consistency with the Double
Jeopardy Clause. Cf. United States ex rel. Marcus v. Hess,
317 U. S. 537, 548-549
(1943). Because in my view there is no constitutional distinction
between such a fine and the tax at issue in this case, a tax
imposed on the possession of illegal drugs is subject to double
jeopardy analysis.
To hold, however, that Montana's drug tax is not exempt from
scrutiny under the Double Jeopardy Clause says nothing about
whether imposition of the tax is unconstitutional. "Congress may
impose both a criminal and a civil sanction in respect to the same
act or omission; for the double jeopardy clause prohibits merely
punishing twice, or attempting a second time to punish criminally,
for the same offense." Helvering v. Mitchell,
303 U. S. 391, 399 (1938)
(emphasis added). The Fifth Amendment says "nor shall any person be
subject for the same offence to be twice put in jeopardy," and a
civil proceeding following a criminal prosecution simply is not a
second "jeopardy." See post, at 801, and n. 1 (SCALIA, J.,
dissenting). But we have recognized that the Constitution
constrains the States' ability to denominate proceedings as "civil"
and so dispense with the criminal procedure protections embodied in
the Bill of Rights. See, e.
g., Allen v. Illinois,
478 U. S. 364, 368-369
(1986). Some governmental exactions are so punitive that they may
only be imposed in a criminal proceeding. United States v. Ward,
448 U. S. 242,
248-249 (1980). And because the Double Jeopardy Clause prohibits
successive criminal proceedings for the same offense, the
government may not sanction a defendant for conduct for which he
has already been punished insofar as the subsequent sanction is
punitive, because to do so would necessitate a criminal proceeding
prohibited by the Constitution. See generally United States v.
Halper,
490 U. S.
435 (1989).
794
The question, then, is whether Montana's drug tax is punitive.
Our double jeopardy cases make clear that a civil sanction will be
considered punishment to the extent that it serves only the
purposes of retribution and deterrence, as opposed to furthering
any nonpunitive objective. Id., at 448-450. See also Bell v.
Wolfish,
441 U. S.
520, 539, n. 20 (1979); Kennedy v. Mendoza-Martinez,
372 U. S. 144, 168
(1963). This will obtain when, as in Halper, the amount of the
sanction is "overwhelmingly disproportionate" to the damages caused
by the wrongful conduct and thus "is not rationally related to the
goal of making the Government whole." 490 U. S., at 449, 451.
The State and Federal Governments spend vast sums on drug
control activities. See, e.
g., U. S. Dept. of Justice,
Bureau of Justice Statistics, Fact Sheet: Drug Data Summary 5 (Apr.
1994) (approximately $27 billion in fiscal year 1991). The Kurths
are directly responsible for some of these expenditures-the costs
of detecting, investigating, and raiding their operation, the price
of prosecuting them and incarcerating those who received prison
sentences, and part of the money spent on drug abuse education,
deterrence, and treatment. The State of Montana has a legitimate
nonpunitive interest in defraying the costs of such activities.
United States v. Halper, supra, at 444-446, and n. 6; see also
United States v. Ward, supra, at 254; One Lot Emerald Cut Stones v.
United States,
409 U.
S. 232, 237 (1972); Rex Trailer Co. v. United States,
350 U. S. 148, 153-154
(1956). For example, readily available statistics indicate that
apprehension, prosecution, and incarceration of the Kurths will
cost the State of Montana at least $120,000. See Montana Board of
Crime Control, Per-Unit and Per-Transaction Expenditures in the
Montana Criminal Justice System 8, 15, 19, 21, 22-23, and Tables 21
and 23 (1993) (Montana Criminal Justice Expenditures).
But measuring the costs actually imposed by every participant in
the illegal drug trade would be, to the extent it is
795
even possible, so complex as to make the game not worth the
candle. Thus, the government must resort to approximation-in
effect, it exacts liquidated damages. See Rex Trailer Co. v. United
States, supra, at 153-154 ("The damages resulting from [the
government's] injury may be difficult or impossible to ascertain,
but it is the function of liquidated damages to provide a measure
of recovery in such circumstances"); United States v. Halper,
supra, at 452-453 (KENNEDY, J., concurring) ("Our rule permits the
imposition in the ordinary case of at least a fixed penalty roughly
proportionate to the damage caused or a reasonably liquidated
amount"). The Montana Legislature has determined that $100 per
ounce of marijuana is an appropriate estimate of its costs of drug
control, and at least 22 other States have made a similar
determination and tax marijuana at approximately the same rate.
*
The Court of Appeals recognized that imposition of the drug tax
on the Kurths' possession of marijuana would not be punishment if
the sanction bore some rational relationship to "the staggering
costs associated with fighting drug abuse in this country." In re
Kurth Ranch,
986 F.2d
1308, 1312 (CA9 1993). But the court held that "allowing the
state to impose this tax, without any showing of some rough
approximation of its actual damages and costs, would be
sanction-
*See Ala. Code §40-17A-8(1) (1993); Colo. Rev. Stat.
§39-28.7-102(1) (Supp. 1993); Conn. Gen. Stat. § 12-651(b)(1)
(1993); Ga. Code Ann. § 4815-6(1) (Supp. 1993); Idaho Code §
63-4203(2)(a) (Supp. 1993); Ill. Compo Stat. § 520/9(1) (1993);
Iowa Code § 453B.7(1) (Supp. 1994); Kan. Stat. Ann. § 79-5202(a)(1)
(Supp. 1990); La. Rev. Stat. Ann. § 47:2601(1) (West Supp. 1994);
Me. Rev. Stat. Ann., Tit. 36, § 4434(1) (Supp. 1993); Mass. Gen.
Laws ch. 64K, §8(1) (Supp. 1994); Minn. Stat. §297D.08(1) (1991);
Neb. Rev. Stat. § 77-4303(1)(a) (1990); Nev. Rev. Stat. §
372A.070(b)(1) (1993); N. M. Stat. Ann. § 7-18A-3A(5) (1993); N. C.
Gen. Stat. § 105-113.107(1) (1992); N. D. Cent. Code §
57-36.1-08(1) (1993); Okla. Stat., Tit. 68, § 450.2(1) (1992); R.
I. Gen. Laws § 44-49-9(1) (Supp. 1993); Tex. Tax Code Ann. §
159.101(b)(2) (1992); Utah Code Ann. § 59-19-103(1)(a) (1992); Wis.
Stat. § 139.88(1) (Supp. 1993).
796
ing a penalty which Halper prohibits." Ibid. (emphasis added).
As evidenced by the highlighted phrase, the Court of Appeals
skipped a step in the double jeopardy analysis. In Halper, we held
that determining whether an exaction is punitive entails a two-part
inquiry:
"Where a defendant previously has sustained a criminal penalty
and the civil penalty sought in the subsequent proceeding bears no
rational relation to the goal of compensating the Government for
its loss, but rather appears to qualify as 'punishment' in the
plain meaning of the word, then the defendant is entitled to an
accounting of the Government's damages and costs to determine if
the penalty sought in fact constitutes a second punishment." 490 U.
S., at 449-450 (emphasis added).
In other words, the defendant must first show the absence of a
rational relationship between the amount of the sanction and the
government's nonpunitive objectives; the burden then shifts to the
government to justify the sanction with reference to the particular
case. This bifurcated approach to the double jeopardy question
makes good sense. The presumption of constitutionality to which
every state statute is entitled means in this context that a
sanction denominated as civil must be presumed to be nonpunitive.
This presumption would be rendered nugatory if the government were
required to prove that the sanction is in fact nonpunitive before
imposing it in a particular case. Rather, the defendant must show
that the sanction may be punitive as applied to him before the
government can be required to justify its imposition. As we
emphasized in Halper, it will be the "rare case" in which a
litigant will succeed in satisfying the first prong of the
constitutional analysis. Id., at 449. We do not know whether this
is such a case because the courts below improperly faulted the
State for failing to prove its actual damages even though the
Kurths have not shown that
797
the amount of the tax is not rationally related to the
government's legitimate nonpunitive objectives.
The Court avoids this problem by asserting that "[s]ubjecting
Montana's drug tax to Halper's test for civil penalties is ...
inappropriate." Ante, at 784. To reach this conclusion, the Court
holds that imposition of the drug tax is
always punitive,
regardless of the nature of the offense or the offender. The
consequences of this decision are astounding. The State of
Montana-along with about half of the other States-is now precluded
from ever imposing the drug tax on a person who has been punished
for a possessory drug offense. A defendant who is arrested, tried,
and convicted for possession of one ounce of marijuana cannot be
taxed $100 therefor, even though the State's law enforcement costs
in such a case average more than $4,000. See Montana Criminal
Justice Expenditures 24. Moreover, presumably the State cannot tax
anyone for possession of illegal drugs without providing the full
panoply of criminal procedure protections found in the Fifth and
Sixth Amendments, given the Court's holding that "[t]he proceeding
Montana initiated to collect a tax on the possession of drugs was
the functional equivalent of a successive criminal prosecution."
Ibid. See United States v. Ward, 448 U. S., at 248; post, at 807
(SCALIA, J., dissenting).
Today's decision is entirely unnecessary to preserve individual
liberty, because the Excessive Fines Clause is available to protect
criminals from governmental overreaching. See Alexander v. United
States,
509 U. S.
544 (1993); Austin v. United States,
509 U. S. 602 (1993);
post, at 803, n. 2 (SCALIA, J., dissenting). See also
Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc.,
492 U. S. 257,
283284 (1989) (O'CONNOR, J., concurring in part and dissenting in
part) (discussing incorporation of Excessive Fines Clause). On the
other hand, today's decision will be felt acutely by law-abiding
taxpayers, because it will seriously undermine the ability of the
State and Federal Governments to collect
798
SCALIA, J., dissenting
recompense for the immense costs criminals impose on our
society. I therefore respectfully dissent from the Court's
unwarranted expansion of our double jeopardy jurisprudence. I would
simply vacate the judgment below and remand the case for further
proceedings consistent with this opinion and Halper.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
The Double Jeopardy Clause of the Fifth Amendment provides: "nor
shall any person be subject for the same offence to be twice put in
jeopardy of life or limb."
I
"To be put in jeopardy" does not remotely mean "to be punished,"
so by its terms this provision prohibits, not multiple punishments,
but only multiple prosecutions. Compare the proposal of the House
of Representatives, for which the Senate substituted language
similar to the current text of the Clause: "No person shall be
subject, except in cases of impeachment, to more than one
punishment or one trial for the same offence." See 1 Annals of
Congo 434, 753, 767 (1789); Senate Journal, Aug. 24, 1789, 1st
Cong., 1st Sess., 105, 119, 130 (1789). The view that the Double
Jeopardy Clause does not prohibit multiple punishments is, as
Justice Frankfurter observed,
"confirmed by history. For legislation ... providing two
sanctions for the same misconduct, enforceable in separate
proceedings, one a conventional criminal prosecution, and the other
a forfeiture proceeding or a civil action as upon a debt, was quite
common when the Fifth Amendment was framed by Congress .... It
would do violence to proper regard for the framers of the Fifth
Amendment to assume that they contemporaneously enacted and
continued to enact legislation that was offensive to the guarantees
of the double jeopardy clause
799
which they had proposed for ratification." United States ex rel.
Marcus v. Hess, 317
U. S. 537, 555-556 (1943) (concurring opinion).
The belief that there is a multiple-punishments component of the
Double Jeopardy Clause can be traced to Ex parte Lange, 18 Wall.
163 (1874). In that case, the lower court sentenced Lange to both
one year of imprisonment and a $200 fine for stealing mail bags
from the Post Office, under a statute that authorized a maximum
sentence of one year of imprisonment or a fine not to exceed $200.
The Court, acknowledging that the sentence was in excess of
statutory authorization, issued a writ of habeas corpus. Lange has
since been cited as though it were decided exclusively on the basis
of the Double Jeopardy Clause, see, e. g., North Carolina v.
Pearce,
395 U. S.
711, 717, and n. 11 (1969); in fact, Justice Miller's opinion
for the Court rested the decision on principles of the common law,
and both the Due Process and Double Jeopardy Clauses of the Fifth
Amendment. See Lange, 18 Wall., at 170, 176, 178. The opinion went
out of its way not to rely exclusively on the Double Jeopardy
Clause, in order to avoid deciding whether it applied to
prosecutions not literally involving "life or limb." See
id., at 170. It is clear that the Due Process Clause alone
suffices to support the decision, since the guarantee of the
process provided by the law of the land, cf. Pacific Mut. Life Ins.
Co. v. Haslip,
499 U.
S. 1,28-29 (1991) (SCALIA, J., concurring in judgment), assures
prior legislative authorization for whatever punishment is
imposed.
The basis for Lange was hardly clarified when, almost
three-quarters of a century later and in a case involving nearly
identical circumstances (a prisoner who had already paid a $500
fine was sentenced to prison under a contempt statute that
permitted only a fine or imprisonment), the Court discharged the
prisoner without express reference to the Double Jeopardy Clause
and with only a citation of Lange. See In re Bradley,
318 U. S. 50, 51-52
(1943). Chief
800
SCALIA, J., dissenting
Justice Stone's dissent in Bradley displays his uncertainty
regarding the doctrinal basis for Lange-as well as his view that if
the basis was the Double Jeopardy Clause it was wrong: "So far as
Ex parte Lange is regarded here as resting on the ground that it
would be double jeopardy to compel the offender to serve the prison
sentence after remission of the fine on the same day on which it
was paid, I think its authority should be reexamined and rejected."
318 U. S., at 53.
Between Lange and our decision five Terms ago in United States
v. Halper,
490 U. S.
435 (1989), our cases often stated that the Double Jeopardy
Clause protects against both successive prosecutions and successive
punishments for the same criminal offense. See, e. g., North
Carolina v. Pearce, supra, at 717; Illinois v. Vitale,
447 U. S. 410, 415
(1980); Ohio v. Johnson,
467 U. S. 493, 498-499
(1984). But the repetition of a dictum does not turn it into a
holding, and an examination of the cases discussing the prohibition
against multiple punishments demonstrates that, until Halper, the
Court never invalidated a legislatively authorized successive
punishment. The dispositions were entirely consistent with the
proposition that the restriction derived exclusively from the due
process requirement of legislative authorization. Indeed, some
cases expressed the restriction in precisely that fashion. See, e.
g., Johnson, supra, at 499, and n. 8 ("[P]rotection against
cumulative punishmen[t] is designed to ensure that the sentencing
discretion of courts is confined to the limits established by the
legislature"); Albernaz v. United States,
450 U. S. 333, 344 (1981)
("[T]he question of what punishments are constitutionally
permissible is not different from the question of what punishments
the Legislative Branch intended to be imposed"); United States v.
DiFrancesco,
449 U.
S. 117, 139 (1980) ("No double jeopardy problem would have been
presented in Ex parte Lange if Congress had provided that the
offense there was punishable by both fine and imprisonment, even
though that is mul-
801
tiple punishment"); Whalen v. United States,
445 U. S. 684, 688 (1980)
("[T]he question whether punishments imposed by a court after a
defendant's conviction upon criminal charges are unconstitutionally
multiple cannot be resolved without determining what punishments
the Legislative Branch has authorized");
id., at 697
(BLACKMUN, J., concurring in judgment) ("The only function the
Double Jeopardy Clause serves in cases challenging multiple
punishments is to prevent the prosecutor from bringing more
charges, and the sentencing court from imposing greater
punishments, than the Legislative Branch intended") (emphasis in
original); Brown v. Ohio,
432 U. S. 161, 165 (1977)
("The legislature remains free under the Double Jeopardy Clause to
define crimes and fix punishments").
To tell the truth, however, until Halper was decided, extending
the "no-double-punishments" rule to civil penalties, it did not
much matter whether that rule was a freestanding constitutional
prohibition implicit in the Double Jeopardy Clause or (as I think
to be the case) merely an aspect of the Due Process Clause
requirement of legislative authorization. Even if it were thought
to be the former, the Double Jeopardy Clause's ban on successive
criminal prosecutions would make surplusage of any distinct
protection against additional punishment imposed in a successive
prosecution, since the prosecution itself would be barred.1 (It has
never been imagined, of course, that the commonplace practice of
imposing multiple authorized punishments-fine and
incarceration-after a single prosecution is unconstitutional.
See
1 Thus, in the context of criminal proceedings, legislatively
authorized multiple punishments are permissible if imposed in a
single proceeding, but impermissible if imposed in successive
proceedings. See Missouri v. Hunter,
459 U. S. 359, 368-369
(1983). United States v. Halper,
490 U. S. 435, 450
(1989), and the Court's opinion in the present case, see ante, at
778, attempt to preserve that distinction in the context of civil
proceedings. But of course the textual basis for it-the Double
Jeopardy Clause's prohibition of successive prosecutions-does not
exist: a civil proceeding is not a second jeopardy. See infra, at
807-808.
802
SCALIA, J., dissenting
DiFrancesco, supra, at 139.) But a civil proceeding successive
to a criminal prosecution is not barred, even if (as in Halper
itself) it has the potential to result in the imposition of a
penalty. See United States v. One Assortment of 89 Firearms,
465 U. S. 354,
362 (1984); One Lot Emerald Cut Stones v. United States,
409 U. S. 232, 235
(1972). Thus, by extending the no-double-punishments rule to civil
penalties, while simultaneously affirming that it demanded more
than mere fidelity to legislative intent, Halper gave the rule a
breadth of effect it had never before enjoyed.
Halper involved a medical doctor who had already been convicted
and punished under the criminal false claims statute, 18 U. S. C. §
287, for filing false medicare claims. The issue was whether he
could then be fined for the same false claims under the civil
provisions of the False Claims Act, 31 U. S. C. §§ 3729-3731. We
held that the Double Jeopardy Clause prevented it, to the extent
that the fine exceeded what was needed to cover" 'legitimate
nonpunitive governmental objectives,'" Halper, 490 U. S., at 448,
quoting Bell v. Wolfish,
441 U. S. 520, 539, n. 20
(1979). The Government's contention in Halper was not that no
constitutional prohibition on multiple punishments existed, but
rather that it applied only to punishments meted out in a criminal
proceeding. See Brief for United States in United States v. Halper,
O. T. 1988, No. 87-1383, pp. 11-12, 21-24. I found, and continue to
find, that distinction incoherent: if the Constitution prohibits
multiple punishments, the nature of the proceeding in which
punishment is imposed should make no difference. Accordingly, I
joined the Court's unanimous opinion. I continued to apply the rule
of Halper-indeed, I thought I applied it more faithfully than the
Court-in my dissent the next month in Jones v. Thomas,
491 U. S. 376, 388, 393
(1989).
The difficulty of applying Halper's analysis to Montana's
Dangerous Drug Tax has prompted me to focus on the antecedent
question whether there is a multiple-punishments
803
component of the Double Jeopardy Clause. As indicated above, I
have concluded-as did Chief Justice Stone, see In re Bradley,
318 U. S. 50
(1943), and Justice Frankfurter, see United States ex rel. Marcus
v. Hess,
317 U. S.
537 (1943)that there is not. Instead, the Due Process Clause
keeps punishment within the bounds established by the legislature,
and the Cruel and Unusual Punishments and Excessive Fines Clauses
place substantive limits upon what those legislated bounds may
be.2
Of course the conviction that Halper was in error is not alone
enough to justify departing from it. But there is added to that
conviction the knowledge, acquired from brief experience with the
new regime, that the erroneous holding produces results too strange
for judges to endure, and regularly demands judgments of the most
problematic sort. As to the latter: We dodged the bullet in
Halper-or perhaps a more precise metaphor would be that we thrust
our lowercourt colleagues between us and the bullet-by leaving it
to the lower courts to determine at what particular dollar level
the civil fine exceeded the Government's "legitimate nonpunitive
governmental objectives" and thus became a penalty. See Halper, 490
U. S., at 452. In the present case, however, the alleged punishment
is not an adjudicated fine that can be judicially reduced to a
lower level, but rather a tax; and so we grapple with the
different, though no less peculiar, inquiry: When is a tax so high
(or so something-else) that it is a punishment? Surely further
enigmas await us.
2 The Excessive Fines Clause-which was rescued from obscurity
only after Halper was decided, see Alexander v. United States,
509 U. S. 544,
558-559 (1993) (first Supreme Court case applying the Clause to in
personam criminal proceedings); Austin v. United States,
509 U. S. 602, 606618
(1993) (Clause applies to civil forfeitures)-may well support the
judgment in Halper. Indeed, it may even explain the judgment in
Halper, since much of the language of that opinion suggests that
the Court was motivated by concern for the harsh consequences of
applying a pertransaction penalty to a "prolific but small-gauge
offender," 490 U. S., at 449.
804
SCALIA, J., dissenting
And we have also learned from experience that we are unwilling
to take the strong (and not particularly healthful) medicine that
we poured out for ourselves in Halper. Jones was the first lesson,
but even sterner ones are in store. In the present case, as in
Halper itself, we confront the relatively easy task of disallowing
a civil sanction because criminal punishment has already been
imposed. But many cases, including one being held for this case,
will demand much more of us: disallowing criminal punishment
because a civil sanction has already been imposed. Although at
least one lower court has optimistically suggested (without
elaborating) that there might be a constitutional difference
between the two situations, see United States v. Newby,
11 F.3d
1143 (CA3 1993), if there is a constitutional prohibition on
multiple punishments, the order of punishment cannot possibly make
any difference. Accord, United States v. Sanchez-Escareno,
950 F.2d
193, 200 (CA5 1991). The social cost of vindicating the
fictional, Halper-created multiplepunishments prohibition will be
much higher when criminal penalties are at stake, and we will be no
more willing to pay it (nor should we) than the lower courts have
been. Can a prison inmate who has been disciplined for an
altercation with a guard subsequently be punished criminally for
the same incident? See Newby, supra, at 1145-1146 (answering yes).
Can a person who has paid a $75,000 fine and been permanently
disbarred from commodity trading because of trading violations
subsequently be sent to jail for the same violations? See United
States v. Furlett,
974 F.2d
839 (CA7 1992) (answering yes). Can a person who has suffered
civil forfeiture for violation of law later be prosecuted
criminally for the same violation? See United States v. Tilley,
18 F.3d
295 (CA5 1994) (answering yes).
It is time to put the Halper genie back in the bottle, and to
acknowledge what the text of the Constitution makes perfectly
clear: the Double Jeopardy Clause prohibits successive
805
prosecution, not successive punishment. Multiple punishment is
of course restricted by the Cruel and Unusual Punishments Clause
insofar as its nature is concerned, and by the Excessive Fines
Clause insofar as its cumulative extent is concerned. Its
multiplicity
qua multiplicity, however, is restricted only
by the Double Jeopardy Clause's requirement that there be no
successive criminal prosecution, and by the Due Process Clause's
requirement that the cumulative punishments be in accord with the
law of the land, i. e., authorized by the legislature.
II
The Court's entire opinion appears to proceed on the assumption
that the relevant question is whether taxes assessed pursuant to
Montana's Dangerous Drug Tax Act "violate the constitutional
prohibition against successive punishments for the same offense."
Ante, at 769. Nonetheless, after 16 pages addressing how Montana's
marijuana tax inflicts punishment, the Court adds, almost as an
afterthought: "The proceeding Montana initiated to collect a tax on
the possession of drugs was the functional equivalent of a
successive criminal prosecution that placed the Kurths in jeopardy
a second time 'for the same offence.'" Ante, at 784.
The only conceivable foundation for that statement is the
implicit assumption that any proceeding which imposes "punishment"
within the meaning of the multiple-punishments component of the
Double Jeopardy Clause is a criminal prosecution. That assumption
parts company with a long line of cases, including Halper, without
even the courtesy of a goodbye. Although a few of our cases include
statements to the effect that a proceeding in which punishment is
imposed is criminal, see, e. g., Kennedy v. Mendoza-Martinez,
372 U. S. 144,
167 (1963), the criterion of "punishment" for that purpose is
significantly different (and significantly more deferential to the
government) than the criterion applied in
806
SCALIA, J., dissenting
Halper. United States v. Ward,
448 U. S. 242 (1980), put
it this way:
"[W]here Congress 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 as to negate
that intention. In regard to this latter inquiry, we have noted
that 'only the clearest proof could suffice to establish the
unconstitutionality of a statute on such a ground.''' Id., at
248-249, quoting Flemming v. Nestor, 363 U. S. 603, 617 (1960)
(citation omitted).
Halper's focus on whether the sanction serves the goals of
"retribution and deterrence" is just one factor in the Kennedy-Ward
test, see 372 U. S., at 168-169, and one factor alone is not
dispositive, see Ward, supra, at 250-251.
The greater severity of the "criminal prosecution" test is in
fact precisely why Halper resorted to the multiplepunishments
component of the Double Jeopardy Clause. The opinion distinguished
between the test used to determine "whether proceedings are
criminal or civil," 490 U. S., at 447, and the more searching
analysis thought appropriate in the multiple-punishments
context:
"The Government correctly observes that this Court has followed
this abstract [Kennedy- Ward] approach when determining whether the
procedural protections of the Sixth Amendment apply to proceedings
under a given statute, in affixing the appropriate standard of
proof for such proceedings, and in determining whether double
jeopardy protections should be applied. See United States v. Ward,
448 U. S., at 248-251. But while recourse to statutory language,
structure, and intent is appropriate in identifying the inherent
nature of a proceeding, or in determining the constitutional
safeguards that must accompany those proceedings as a general
807
matter, the approach is not well suited to the context of the
'humane interests' safeguarded by the Double Jeopardy Clause's
proscription of multiple punishments." Ibid.
The Court not only ignores the Kennedy-Ward test and this
portion of Halper, it also does not attempt to reconcile its
conclusion with our decision in Helvering v. Mitchell,
303 U. S. 391 (1938):
"Forfeiture of goods or their value and the payment of fixed or
variable sums of money are other sanctions which have been
recognized as enforcible [sic] by civil proceedings since
the original revenue law of 1789. In spite of their comparative
severity, such sanctions have been upheld against the contention
that they are essentially criminal and subject to the procedural
rules governing criminal prosecutions." Id., at 400 (citation
omitted) (citing cases).
Of course, if the Court were correct that the proceeding below
was criminal in nature, there would be no particular reason to
refer to this as a double jeopardy case. Assessment of a criminal
punishment in a civil tax proceeding would violate not only the
Double Jeopardy Clause, but all of the criminal-procedure
guarantees of the Fifth and Sixth Amendments. And it would be
invalid whether or not it was preceded by a traditional criminal
prosecution. The Court's assertion that it would be lawful in
isolation, see ante, at 778-779, thus contradicts the Court's
contention that it is "the functional equivalent of a . criminal
prosecution," ante, at 784.
***
Applying the Kennedy-Ward test to the Montana tax proceeding, I
do not find that it constituted a second criminal prosecution. And
since the Montana Legislature authorized
808
SCALIA, J., dissenting
these taxes in addition to the criminal penalties for possession
of marijuana, these taxes did not violate that principle of due
process sometimes called the multiple-punishments component of the
Double Jeopardy Clause. The Constitution requires nothing more. For
these reasons, I respectfully dissent.
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