Cite as: 522 U. S. 93 (1997)
Souter, J., concurring in judgment
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 Block-burger 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 Kennedy-Ward 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
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