Cite as: 511 U. S. 767 (1994)
Scalia, J., dissenting
matter, the approach is not well suited to the context of the 'humane interests' safeguarded by the Double Jeopardy Clause's proscription of multiple punishments." Ibid.
The Court not only ignores the Kennedy-Ward test and this portion of Halper, it also does not attempt to reconcile its conclusion with our decision in Helvering v. Mitchell, 303 U. S. 391 (1938):
"Forfeiture of goods or their value and the payment of fixed or variable sums of money are other sanctions which have been recognized as enforcible [sic] by civil proceedings since the original revenue law of 1789. In spite of their comparative severity, such sanctions have been upheld against the contention that they are essentially criminal and subject to the procedural rules governing criminal prosecutions." Id., at 400 (citation omitted) (citing cases).
Of course, if the Court were correct that the proceeding below was criminal in nature, there would be no particular reason to refer to this as a double jeopardy case. Assessment of a criminal punishment in a civil tax proceeding would violate not only the Double Jeopardy Clause, but all of the criminal-procedure guarantees of the Fifth and Sixth Amendments. And it would be invalid whether or not it was preceded by a traditional criminal prosecution. The Court's assertion that it would be lawful in isolation, see ante, at 778-779, thus contradicts the Court's contention that it is "the functional equivalent of a . . . criminal prosecution," ante, at 784.
* * *
Applying the Kennedy-Ward test to the Montana tax proceeding, I do not find that it constituted a second criminal prosecution. And since the Montana Legislature authorized
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