114
Souter, J., concurring in judgment
clearly intended as a civil remedy [would be treated as] a criminal penalty." One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 237 (1972) (per curiam), cited Rex Trailer for that standard and relied on the case as exemplifying a provision for liquidated damages as distinct from criminal penalty. I read the requisite "clearest proof" of criminal character, then, to be a function of the strength of the countervailing indications of civil nature (including the presumption of constitutionality enjoyed by an ostensibly civil statute making no provision for the safeguards guaranteed to criminal defendants. See Flemming, supra, at 617).
I add the further caution, to be wary of reading the "clearest proof" requirement as a guarantee that such a demonstration is likely to be as rare in the future as it has been in the past. See United States v. Halper, 490 U. S. 435, 449 (1989) ("What we announce now is a rule for the rare case"). We have noted elsewhere the expanding use of ostensibly civil forfeitures and penalties under the exigencies of the current drug problems, see Ursery, supra, at 300 (Stevens, J., concurring in judgment in part and dissenting in part) ("In recent years, both Congress and the state legislatures have armed their law enforcement authorities with new powers to forfeit property that vastly exceed their traditional tools"); United States v. James Daniel Good Real Property, 510 U. S. 43, 81-82 (1993) (Thomas, J., concurring in part and dissenting in part), a development doubtless spurred by the increasingly inviting prospect of its profit to the Government. See id., at 56, n. 2 (opinion of the Court) (describing the Govern-ment's financial stake in drug forfeiture); see also id., at 56 (citing Harmelin v. Michigan, 501 U. S. 957, 979, n. 9 (1991) (opinion of Scalia, J.) for the proposition that "it makes sense to scrutinize governmental action more closely when the State stands to benefit"). Hence, on the infrequency of "clearest proof," history may not be repetitive.
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