Cite as: 511 U. S. 767 (1994)
Scalia, J., dissenting
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.2
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.
2 The Excessive Fines Clause—which was rescued from obscurity only after Halper was decided, see Alexander v. United States, 509 U. S. 544, 558-559 (1993) (first Supreme Court case applying the Clause to in personam criminal proceedings); Austin v. United States, 509 U. S. 602, 606- 618 (1993) (Clause applies to civil forfeitures)—may well support the judgment in Halper. Indeed, it may even explain the judgment in Halper, since much of the language of that opinion suggests that the Court was motivated by concern for the harsh consequences of applying a per-transaction penalty to a "prolific but small-gauge offender," 490 U. S., at 449.
803
Page: Index Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 NextLast modified: October 4, 2007