Cite as: 522 U. S. 93 (1997)
Breyer, J., concurring in judgment
Justice Breyer, with whom Justice Ginsburg joins, concurring in the judgment.
I agree with the majority and with Justice Souter that United States v. Halper, 490 U. S. 435 (1989), does not provide proper guidance for distinguishing between criminal and noncriminal sanctions and proceedings. I also agree that United States v. Ward, 448 U. S. 242, 248 (1980), and Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963), set forth the proper approach.
I do not join the Court's opinion, however, because I disagree with its reasoning in two respects. First, unlike the Court I would not say that " 'only the clearest proof ' " will "transform" into a criminal punishment what a legislature calls a "civil remedy." Ante, at 100. I understand that the Court has taken this language from earlier cases. See Ward, supra, at 249. But the limitation that the language suggests is not consistent with what the Court has actually done. Rather, in fact if not in theory, the Court has simply applied factors of the Kennedy variety to the matter at hand. In Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767 (1994), for example, the Court held that the collection of a state tax imposed on the possession and storage of drugs was "the functional equivalent of a successive criminal prosecution" because, among other things, the tax was "remarkably high"; it had "an obvious deterrent purpose"; it was "conditioned on the commission of a crime"; it was "ex-acted only after the taxpayer ha[d] been arrested for the precise conduct that gives rise to the tax obligation"; its alternative function of raising revenue could be equally well served by increasing the fine imposed on the activity; and it departed radically from "normal revenue laws" by taxing contraband goods perhaps destroyed before the tax was imposed. Id., at 781-784. This reasoning tracks the non-exclusive list of factors set forth in Kennedy, and it is, I believe, the proper approach. The "clearest proof" language
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