106
Stevens, J., concurring in judgment
Justice Scalia, with whom Justice Thomas joins, concurring.
I wholly agree with the Court's conclusion that Halper's test for whether a sanction is "punitive" was ill considered and unworkable. Ante, at 101-102. Indeed, it was the absurdity of trying to force the Halper analysis upon the Montana tax scheme at issue in Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767 (1994), that prompted me to focus on the prior question whether the Double Jeopardy Clause even contains a multiple-punishments prong. See id., at 802-803. That evaluation led me to the conclusion that the Double Jeopardy Clause prohibits successive prosecution, not successive punishment, and that we should therefore "put the Halper genie back in the bottle." Id., at 803- 805. Today's opinion uses a somewhat different bottle than I would, returning the law to its state immediately prior to Halper—which acknowledged a constitutional prohibition of multiple punishments but required successive criminal prosecutions. So long as that requirement is maintained, our multiple-punishments jurisprudence essentially duplicates what I believe to be the correct double jeopardy law, and will be as harmless in the future as it was pre-Halper. Accordingly, I am pleased to concur.
Justice Stevens, concurring in the judgment.
The maxim that "hard cases make bad law" may also apply to easy cases. As I shall explain, this case could easily be decided by the straightforward application of well-established precedent. Neither such a disposition, nor anything in the opinion of the Court of Appeals, would require a reexamination of the central holding in United States v. Halper, 490 U. S. 435 (1989), or of the language used in that unanimous opinion. Any proper concern about the danger that that opinion might be interpreted too expansively would be more appropriately addressed in a case that was either incorrectly decided or that at least raised a close or difficult
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