Cite as: 511 U. S. 767 (1994)
Scalia, J., dissenting
tiple 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 freestanding 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.1 (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
1 Thus, in the context of criminal proceedings, legislatively authorized multiple punishments are permissible if imposed in a single proceeding, but impermissible if imposed in successive proceedings. See Missouri v. Hunter, 459 U. S. 359, 368-369 (1983). United States v. Halper, 490 U. S. 435, 450 (1989), and the Court's opinion in the present case, see ante, at 778, attempt to preserve that distinction in the context of civil proceedings. But of course the textual basis for it—the Double Jeopardy Clause's prohibition of successive prosecutions—does not exist: a civil proceeding is not a second jeopardy. See infra, at 807-808.
801
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