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. All of our other cases in this area of 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 remedial 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 [Kurth's] 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 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. 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.

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).

I do not dispute the Court's conclusion that an assessment which is labeled a "tax" could, under some conceivable circumstances, 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 assessment — that 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.

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.

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.

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 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).

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 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 sanctioning 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. 490 U.S., at 449. We don't 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 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, 283-284 (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 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 Cong. 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

which they had proposed for ratification." United States ex rel. Marcus v. Hess, 317 U.S. 537, 555-556 (1943) (Frankfurter, J., concurring).

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 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 multiple 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 free standing 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. (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 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 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.

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 lower-court 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.

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 multiple punishments 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 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 "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 crimina 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 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 multiple punishments 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

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 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.