Cite as: 511 U. S. 767 (1994)
O'Connor, J., dissenting
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
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