OCTOBER TERM, 1997
Syllabus
HUDSON ET AL.
v. 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 violating 12 U. S. C. §§ 84(a)(1) and 375b by
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 on
United States v.
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 multiple
criminal punishments for the same offense. See,
e. g.,
Helvering v.
Mitchell, 303 U. S. 391,399.
Halper deviated 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 States v.
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 in
Kennedy v.
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 though
Kennedy itself 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, as
Kennedy demanded, 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 "nonpunitive"
penalties. Moreover, some of the ills at which it was directed are
addressed by other constitutional provisions.
94
Syllabus
Thus, this Court largely disavows
Halper's method of
analysis and reaffirms the previous rule exemplified in
Ward. 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 evidencemuch less the
"clearest proof" this Court requires, see
Ward, supra, at
249-to suggest that the sanctions were so punitive in form and
effect as to render them criminal despite Congress' contrary
intent, see
United States v.
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, see
Flemming v.
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, see
ibid., is insufficient to render the
sanctions criminally punitive,
Ursery, supra, at 292,
particularly in the double jeopardy context, see
United
States v.
Dixon, 509 U. S. 688, 704. Finally, although
the imposition of both sanctions will deter others from emulating
petitioners' conduct, see
Kennedy, 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, at 292. 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., joined,
post, 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., joined,
post, p. 115.
Bernard J. Rothbaum argued the cause for
petitioners.
With him on the briefs were Jack L. Neville, Jr., Lawrence S.
Robbins, C. Merle Gile, James A. Rolfe, and Lynn Pringle.
Deputy Solicitor General Dreeben argued the cause for the
United States. With him on the briefs were
Acting
95
Solicitor General Dellinger, Acting Assistant Attorney General
Keeney, and Paul R.
Q. Wolfson.
*
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 the
*Briefs of
amicus curiae urging reversal were filed for
the National Association of Criminal Defense Lawyers by
Arthur F.
Mathews and
Lisa Kemler; and for the
Washington Legal Foundation by
Daniel J.
Popeo.
A brief of
amici curiae urging affirmance was filed for
48 States and Territories by
Betty D. Montgomery, Attorney
General of Ohio,
Jeffrey S.
Sutton, State Solicitor,
and
David M. Gormley, Assistant Attorney General,
Jan
Graham, Attorney General of Utah,
Carol Clawson,
Solicitor General, and
Marian 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 Pryor of Alabama,
Bruce M. Botelho of Alaska,
Toetagata A. Mialo of
American Samoa,
Grant Woods of Arizona,
Winston
Bryant of Arkansas,
Daniel E. Lungren of California,
Gale A. Norton of Colorado,
M. Jane Brady of
Delaware,
Robert A. Butterworth of Florida,
Michael
J. Bowers of Georgia,
Margery S.
Bronster of Hawaii,
Alan G.
Lance of Idaho,
James E. Ryan of Illinois,
Jeffrey A. Modisett of
Indiana,
Thomas J. Miller of Iowa,
Carla J. Stovall of Kansas,
Richard P.
Ieyoub of Louisiana,
J. Joseph Curran, Jr., of
Maryland,
Frank J. Kelley of Michigan,
Hubert H. Humphrey III of Minnesota,
Michael C.
Moore of Mississippi,
Joseph P. Mazurek of Montana,
Don Stenberg of Nebraska,
Frankie Sue Del Papa of
Nevada,
Philip T. McLaughlin of New Hampshire,
Peter
Verniero of New Jersey,
Tom Udall of New Mexico,
Dennis C.
Vacco of New York,
Michael F.
Easley of North Carolina,
Robert B. Dunlap II of the
Northern Mariana Islands,
W A. Drew Edmondson of Oklahoma,
Hardy Myers of Oregon,
D. Michael Fisher of
Pennsylvania,
Jose Fuentes-Agostini of Puerto Rico,
Jeffrey B. Pine of Rhode Island,
Charles M. Condon of
South Carolina,
Mark W Barnett of South Dakota,
John Knox
Walkup of Tennessee,
Dan Morales of Texas,
William H.
Sorrell of Vermont,
Julio A. Brady of the Virgin
Islands,
Richard Cullen of Virginia,
Christine O.
Gregoire of Washington, and
William U. Hill of
Wyoming.
96
Double 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 in
United
States v.
Halper, 490 U. S. 435, 448
(1989), and reaffirm the previously established rule exemplified in
United States v.
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).l
During 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
violated 12 U. S. C. §§ 84(a)(1) and 375b (1982 ed.) and 12 CFR §§
31.2(b) and 215.4(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
Govern-
1 Tipton and Hammon are two very small towns in western
Oklahoma.
97
ment as 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 by 12 U. S. C. §§ 93(b)(2) and 504(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.2
Id., 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, § 1005.3 The violations
charged in the indictment rested on the same lend-
2 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 (CAlO 1994).
3 Only petitioner Rackley was indicted for making false bank
entries in violation of 18 U. S. C. § 1005.
98
ing transactions that formed the basis for the prior
administrative actions brought by acc. 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 nonparticipation sanction issue, but vacated
and remanded to the District Court on the money sanction issue.
14 F.3d
536 (CAlO 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, following
Halper, 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 of
Halper.4 We 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 of
4 E. g., Zukas v.
Hinson, 1997 WL 623648
(CAll, 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);
Jones v.
Securities &
Exchange Comm'n, 115 F.3d
1173 (CA4 1997) (challenge to SEC debarment proceeding
as violative of double jeopardy);
United States v.
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 States v.
Hatfield,
108 F.3d
67 (CA4 1997) (challenge to criminal fraud prosecution
as foreclosed by previous debarment from Government contracting);
Taylor v.
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
States v.
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).
99
all additional sanctions that could, "'in common parlance,'" be
described as punishment.
United States ex rel. Marcus v.
Hess, 317 U.
S. 537, 549 (1943) (quoting
Moore v.
Illinois, 14
How. 13, 19 (1852)). The Clause protects only against the
imposition of multiple
criminal punishments for the same
offense,
Helvering v.
Mitchell, 303 U. S. 391, 399
(1938); see also
Hess, supra, at 548-549 ("Only" "criminal
punishment" "subject[s] the defendant to 'jeopardy' within the
constitutional meaning");
Breed v.
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, see
Missouri v.
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,"
Rex Trailer Co. v.
United
States, 350 U. S.
148, 154 (1956).
In making this latter determination, the factors listed in
Kennedy v.
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 of
scienter";
(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 appears
100
excessive 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 in
United States v.
Halper marked 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 the
Halper
Court saw it, the imposition of "punishment" of any kind was
101
subject 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 said
solely to serve [the] remedial
purpose" of compensating the Government for its loss, was thought
to be explainable only as "serving either retributive or deterrent
purposes." See
id., at 448-449 (emphasis added).
The analysis applied by the
Halper Court deviated from
our traditional double jeopardy doctrine in two key respects.
First, the
Halper Court 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 single
Kennedy
factor-whether the sanction appeared excessive in relation to its
nonpunitive purposes-to dispositive status. But as we emphasized in
Kennedy itself, no one factor should be considered
controlling as they "may often point in differing directions." 372
U. S., at 169. The second significant departure in
Halper
was the Court's decision to "asses[s] the character of the actual
sanctions imposed," 490 U. S., at 447, rather than, as
Kennedy demanded, 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 that
Halper's deviation from longstanding
double jeopardy principles was ill considered.5 As subsequent
5 In his concurrence, JUSTICE STEVENS criticizes us for
reexamining our
Halper opinion rather than deciding the case
on what he believes is the narrower
Blockburger grounds. But
the question upon which we granted certiorari in this case is
"whether imposition upon petitioners of monetary fines as
in
personam civil penalties by the Department of the Treasury,
together with other sanctions, is 'punishment' for purposes of the
Double
102
cases 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. See
Department of Revenue of Mont. v.
Kurth Ranch, 511 U. S. 767, 777, n. 14
(1994);
United States v.
Ursery, 518 U. S. 267, 284-285,
n. 2 (1996).6 If a sanction must be "solely" remedial (i.
e., entirely nondeterrent) to avoid implicating the Double
Jeopardy Clause, then no civil penalties are beyond the scope of
the Clause. Under
Halper'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
"attempting a second time to punish criminally."
Helvering, 303 U. S., at 399 (emphasis added).
Finally, it should be noted that some of the ills at which
Halper was directed are addressed by other
constitutional
Jeopardy Clause." Pet. for Cert. i. It is this question, and not
the
Blockburger issue, 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 the
Blockburger
question, finding it unnecessary to do so. 92 F. 3d, at 1028, n.
3.
6 In
Kurth 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 a
Kennedy-like test, see 511 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, in
Ursery, we rejected the notion that civil
in rem forfeitures 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.
103
prOVISIOns. The Due Process and Equal Protection Clauses already
protect individuals from sanctions which are downright irrational.
Williamson v.
Lee Optical of Okla., Inc., 348 U. S. 483 (1955). The
Eighth Amendment protects against excessive civil fines, including
forfeitures.
Alexander v.
United States, 509 U. S. 544 (1993);
Austin v.
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 "nonpunitive" 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 acc money penalties and
debarment sanctions imposed for violations of 12 U. S. C. §§ 84 and
375b to 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[iesJ." §§ 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. See
Helvering, supra, at 402;
United States v.
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 Wing v.
United States, 163 U. S.
228, 235 (1896) (holding that quintessential criminal punishments
may be imposed only "by a judicial trial").
104
Turning to the second stage of the
Ward test, we find
that there is little evidence, much less the clearest proof that we
require, suggesting that either acc 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."
Flemming v.
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) and 504, 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 acc 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,"
105
willfulness 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 acc 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, 518 U. S., at 292, particularly in the double
jeopardy context, see
United States v.
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, supra, at 292; see also
Bennis v.
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 by
Ward, that acc 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
accordingly
Affirmed.
106
STEVENS, J., concurring in judgment
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring.
I wholly agree with the Court's conclusion that
Halper's
test for whether a sanction is "punitive" was ill considered and
unworkable.
Ante, at 101-102. Indeed, it was the absurdity
of trying to force the
Halper analysis upon the Montana tax
scheme at issue in
Department of Revenue of Mont. v.
Kurth Ranch, 511 U. S. 767 (1994),
that prompted me to focus on the prior question whether the Double
Jeopardy Clause even contains a multiple-punishments prong. See
id., at 802-803. That evaluation led me to the conclusion
that the Double Jeopardy Clause prohibits successive prosecution,
not successive punishment, and that we should therefore "put the
Halper genie back in the bottle."
Id., at 803805.
Today's opinion uses a somewhat different bottle than I would,
returning the law to its state immediately prior to
Halper-which acknowledged a constitutional prohibition of
multiple punishments but required successive criminal prosecutions.
So long as that requirement is maintained, our multiple-punishments
jurisprudence essentially duplicates what I believe to be the
correct double jeopardy law, and will be as harmless in the future
as it was
pre-Halper. Accordingly, I am pleased to
concur.
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 wellestablished precedent. Neither
such a disposition, nor anything in the opinion of the Court of
Appeals, would require a reexamination of the central holding in
United States v.
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
difficult
107
question. 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 in
Halper that 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 in
Blockburger v.
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
States v.
Dixon, 509 U. S. 688, 696, 704
(1993); Rutledge v.
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 under
Blockburger.
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 of 12
U. S. C. §§ 84(a)(1) and 375b (1982 ed.) and 12 CFR §§ 31.2(b) and
215.4(b) (1986). Each of these provisions required proof that
extensions of credit exceeding certain limits were made,l but did
not require proof of an intent to defraud or the making of any
false entries in bank records. The 1992 indictment charged
violations of 18 U. S. C. §§ 371, 656, and 1005 and alleged a
conspiracy to willfully misapply
1 Title 12 U. S. C. § 84(a)(I) prohibits total loans and
extensions of credit by a national banking association to anyone
borrower from exceeding 15 percent of the bank's unimpaired capital
and surplus. Title 12 U. S. C. § 375b and 12 CFR §§ 31.2(b) and
215.4(b) (1986) impose similar lending limits on loans to bank
officers and other insiders.
108
STEVENS, J., concurring in judgment
bank 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 in
United States v.
Halper
supported 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 of
Halper." Ante, at 98.
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 98, n.
4. In every one of those cases, however, the Court of Appeals
rejected the 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, controversial
2 Petitioners challenge this conclusion by relying on dicta from
Kansas v.
Hendricks, 521 U. S. 346, 370
(1997). There, after rejecting a double jeopardy challenge to
Kansas' Sexually Violent Predator Act, the Court added: "The
Blockburger test, however, simply does not apply outside of
the successive prosecution context."
Ibid. This statement,
pure dictum, was unsupported by any authority and contradicts the
earlier ruling in
United States v.
Dixon, 509 U. S. 688, 704-705
(1993), that the
Blockburger analysis applies to claims of
successive punishment as well as successive prosecution. See also
509 U. S., at 745-746 (SOUTER, J., concurring in judgment in part
and dissenting in part) (explaining why the
Blockburger test
applies in the multiple punishments context). I cannot imagine a
good reason why
Blockburger should not apply here.
109
"Megan's Law."
E. B. v.
Poritz, 914 F. Supp. 85
(NJ 1996), rev'd,
E. B. v.
Verniero, 119 F.3d
1077 (CA3 1997). Thus, the cases cited by the Court surely do
not indicate any need to revisit
Halper.
The Court also claims that two practical flaws in the
Halper opinion warrant a prompt adjustment in our double
jeopardy jurisprudence. First, the Court asserts that
Halper's test is unworkable because it permits only
successive sanctions that are "solely" remedial.
Ante, at
102. Though portions of
Halper were consistent with such a
reading, the express statement of its holding was much narrower.3
Of greater importance, the Court has since clarified this very
point:
"Whether a particular sanction 'cannot fairly be said
solely to 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 in Halper
does the Court purport to make such a sweeping change in the law,
instead emphasizing repeatedly the narrow scope of its decision."
United States v. Ursery, 518 U. S. 267, 285, n. 2
(1996).
Having just recently emphasized
Halper's narrow rule in
Ursery, 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,
Halper would
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 is
3"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 States v.
Halper, 490 U.
S. 435, 448-449 (1989).
110
STEVENS, J., concurring in judgment
wholly 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 in
Halper itself 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 of
Halper and
Department 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.4 Those 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. See
United States v.
La Franca,
282 U. S. 568,
574-575 (1931);
Helvering v.
Mitchell, 303 U. S. 391, 398-399
(1938). That proposition is extremely
4 Other recent double jeopardy decisions have also recognized
that double jeopardy protection is not limited to multiple
prosecutions. See
United States v.
Ursery, 518 U. S. 267, 273
(1996);
Kansas v.
Hendricks, 521 U. S., at 369.
Otherwise, it would have been totally unnecessary to determine
whether the civil forfeitures in
Ursery and the involuntary
civil commitment in
Hendricks imposed "punishment" for
double jeopardy purposes, for neither sanction was implemented via
criminal proceedings.
111
important 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 .... "
Green v.
United States, 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 by
Halper.
IV
Today, as it did in
Halper itself, the Court relies on
the sort of multifactor approach to the definition of punishment
that we used in
Kennedy v.
Mendoza-Martinez, 372 U. S. 144, 168-169
(1963), to identify situations in which a civil sanction is
punitive. Whether the Court's reformulation of
Halper'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 [nonpunitive]
purpose assigned.'"
Ante, at 99-100 (quoting
Kennedy,
372 U. S., at 168-169). Those factors look awfully similar to the
reasoning in
Halper, and while we are told that they are
never by themselves dispositive,
ante, at 101, 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
lower
112
SOUTER, J., concurring in judgment
courts 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."
Burton v.
United States,
196 U. S. 283,
295 (1905); see also
Ashwander v.
TV A, 297 U. S. 288, 345348
(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 102, we have already recognized
that
Halper's statements of standards for identifying what
is criminally punitive under the Fifth Amendment needed revision,
United States v.
Ursery, 518 U. S. 267, 284285, 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. See
United States v.
One
Assortment of 89
Firearms, 465 U. S. 354, 362-366
(1984);
United States v.
Ward, 448 U. S. 242, 248-249
(1980);
Kennedy v.
Mendoza-Martinez, 372 U. S. 144, 168-169
(1963); see also
Ward, 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's
Kennedy-Ward criteria leads me
directly to the conclusion of JUSTICE STEVENS'S opinion con-
113
curring in the judgment. The fifth criterion calls for a court
to determine whether "the behavior to which [the penalty] applies
is already a crime."
Kennedy v.
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 in
Blockburger v.
United
States, 284 U. S.
299 (1932). See
United States v.
Dixon, 509 U. S. 688 (1993).
When application of
Blockburger under
Kennedy-Ward
shows 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. See
ante, at 107 (opinion concurring in judgment). Applying the
KennedyWard criteria, therefore, I would stop just where
JUSTICE STEVENS stops.
My acceptance of the
Kennedy- Ward analytical scheme is
subject to caveats, however. As the Court points out, under
Ward, 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 in
Ward.
Flemming v.
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 was
114
SOUTER, J., concurring in judgment
clearly intended as a civil remedy [would be treated as] a
criminal penalty."
One Lot Emerald Cut Stones v.
United
States, 409 U. S.
232, 237 (1972)
(per curiam), cited
Rex Trailer
for 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. See
Flemming,
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. See
United States v.
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, see
Ursery, 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 exceed
their traditional tools");
United States v.
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. See
id., at 56, n. 2
(opinion of the Court) (describing the Government's financial stake
in drug forfeiture); see also
id., at 56 (citing
Harmelin v.
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.
115
JUSTICE BREYER, with whom JUSTICE GINSBURG joins, concurring in
the judgment.
I agree with the majority and with JUSTICE SOUTER that
United
States v.
Halper, 490 U. S. 435 (1989),
does not provide proper guidance for distinguishing between
criminal and noncriminal sanctions and proceedings. I also agree
that
United States v.
Ward, 448 U. S. 242, 248
(1980), and
Kennedy v.
Mendoza-Martinez, 372 U. S. 144, 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 100. I understand that the Court has taken this
language from earlier cases. See
Ward, 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 the
Kennedy variety
to the matter at hand. In
Department 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 nonexclusive list of factors set
forth in
Kennedy, and it is, I believe, the proper approach.
The "clearest proof" language
116
BREYER, J., concurring in judgment
is consequently misleading, and I would consign it to the same
legal limbo where
Halper now rests.
Second, I would not decide now that a court should evaluate a
statute only" 'on its face,'"
ante, at 100 (quoting
Kennedy, supra, at 169), rather than "assessing the
character of the actual sanctions imposed,"
Halper, supra,
at 447;
ante, at 101.
Halper involved 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. See 490 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 in
Halper might have reached the same
result through application of the constitutional prohibition of
"excessive fines." See
ante, at 103;
Alexander v.
United States, 509 U. S. 544, 558-559
(1993);
Halper, supra, at 449 (emphasizing that
Halper was "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
explains
why we should abandon this aspect of
Halper's holding. Indeed, in context, the language of
Kennedy that suggests that the Court should consider the
statute on its face does not suggest that there may not be further
analysis of a penalty as it is applied in a particular case. See
372 U. S., at 169. Most of the lower court confusion and criticism
of
Halper appears to have focused on the problem of
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 that
117
a statute that provides for a punishment that normally is civil
in nature could nonetheless amount to a criminal punishment as
applied in special circumstances. And I would not now hold to the
contrary.
That said, an analysis of the
Kennedy factors still leads
me to the conclusion that the statutory penalty in this case is not
on its face a criminal penalty. Nor, in my view, does the
application of the statute to the petitioners in this case amount
to criminal punishment. I therefore concur in the judgment.
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