806
Scalia, J., dissenting
Halper. United States v. Ward, 448 U. S. 242 (1980), put it this way:
"[W]here Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention. In regard to this latter inquiry, we have noted that 'only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground.' " Id., at 248-249, quoting Flemming v. Nestor, 363 U. S. 603, 617 (1960) (citation omitted).
Halper's focus on whether the sanction serves the goals of "retribution and deterrence" is just one factor in the Kennedy-Ward test, see 372 U. S., at 168-169, and one factor alone is not dispositive, see Ward, supra, at 250-251.
The greater severity of the "criminal prosecution" test is in fact precisely why Halper resorted to the multiple-punishments component of the Double Jeopardy Clause. The opinion distinguished between the test used to determine "whether proceedings are criminal or civil," 490 U. S., at 447, and the more searching analysis thought appropriate in the multiple-punishments context:
"The Government correctly observes that this Court has followed this abstract [Kennedy-Ward] approach when determining whether the procedural protections of the Sixth Amendment apply to proceedings under a given statute, in affixing the appropriate standard of proof for such proceedings, and in determining whether double jeopardy protections should be applied. See United States v. Ward, 448 U. S., at 248-251. But while recourse to statutory language, structure, and intent is appropriate in identifying the inherent nature of a proceeding, or in determining the constitutional safeguards that must accompany those proceedings as a general
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