796
O'Connor, J., dissenting
ing a penalty which Halper prohibits." Ibid. (emphasis added). As evidenced by the highlighted phrase, the Court of Appeals skipped a step in the double jeopardy analysis. In Halper, we held that determining whether an exaction is punitive entails a two-part inquiry:
"Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as 'punishment' in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment." 490 U. S., at 449-450 (emphasis added).
In other words, the defendant must first show the absence of a rational relationship between the amount of the sanction and the government's nonpunitive objectives; the burden then shifts to the government to justify the sanction with reference to the particular case. This bifurcated approach to the double jeopardy question makes good sense. The presumption of constitutionality to which every state statute is entitled means in this context that a sanction denominated as civil must be presumed to be nonpunitive. This presumption would be rendered nugatory if the government were required to prove that the sanction is in fact nonpunitive before imposing it in a particular case. Rather, the defendant must show that the sanction may be punitive as applied to him before the government can be required to justify its imposition. As we emphasized in Halper, it will be the "rare case" in which a litigant will succeed in satisfying the first prong of the constitutional analysis. Id., at 449. We do not know whether this is such a case because the courts below improperly faulted the State for failing to prove its actual damages even though the Kurths have not shown that
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