Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 38 (1994)

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804

DEPARTMENT OF REVENUE OF MONT. v. KURTH RANCH

Scalia, J., dissenting

And we have also learned from experience that we are unwilling to take the strong (and not particularly healthful) medicine that we poured out for ourselves in Halper. Jones was the first lesson, but even sterner ones are in store. In the present case, as in Halper itself, we confront the relatively easy task of disallowing a civil sanction because criminal punishment has already been imposed. But many cases, including one being held for this case, will demand much more of us: disallowing criminal punishment because a civil sanction has already been imposed. Although at least one lower court has optimistically suggested (without elaborating) that there might be a constitutional difference between the two situations, see United States v. Newby, 11 F. 3d 1143 (CA3 1993), if there is a constitutional prohibition on multiple punishments, the order of punishment cannot possibly make any difference. Accord, United States v. Sanchez-Escareno, 950 F. 2d 193, 200 (CA5 1991). The social cost of vindicating the fictional, Halper-created multiple-punishments prohibition will be much higher when criminal penalties are at stake, and we will be no more willing to pay it (nor should we) than the lower courts have been. Can a prison inmate who has been disciplined for an altercation with a guard subsequently be punished criminally for the same incident? See Newby, supra, at 1145-1146 (answering yes). Can a person who has paid a $75,000 fine and been permanently disbarred from commodity trading because of trading violations subsequently be sent to jail for the same violations? See United States v. Furlett, 974 F. 2d 839 (CA7 1992) (answering yes). Can a person who has suffered civil forfeiture for violation of law later be prosecuted criminally for the same violation? See United States v. Tilley, 18 F. 3d 295 (CA5 1994) (answering yes).

It is time to put the Halper genie back in the bottle, and to acknowledge what the text of the Constitution makes perfectly clear: the Double Jeopardy Clause prohibits successive

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