116
Breyer, J., concurring in judgment
is consequently misleading, and I would consign it to the same legal limbo where Halper now rests.
Second, I would not decide now that a court should evaluate a statute only " 'on its face,' " ante, at 100 (quoting Kennedy, supra, at 169), rather than "assessing the character of the actual sanctions imposed," Halper, supra, at 447; ante, at 101. Halper involved an ordinary civil-fine statute that as normally applied would not have created any "double jeopardy" problem. It was not the statute itself, but rather the disproportionate relation between fine and conduct as the statute was applied in the individual case that led this Court, unanimously, to find that the "civil penalty" was, in those circumstances, a second "punishment" that constituted double jeopardy. See 490 U. S., at 439, 452 (finding that $130,000 penalty was "sufficiently disproportionate" to $585 loss plus approximately $16,000 in Government expenses caused by Halper's fraud to constitute a second punishment in violation of double jeopardy). Of course, the Court in Halper might have reached the same result through application of the constitutional prohibition of "excessive fines." See ante, at 103; Alexander v. United States, 509 U. S. 544, 558-559 (1993); Halper, supra, at 449 (emphasizing that Halper was "the rare case" in which there was an "overwhelmingly disproportionate" fine). But that is not what the Court there said. And nothing in the majority's opinion today explains why we should abandon this aspect of Halper's holding. Indeed, in context, the language of Kennedy that suggests that the Court should consider the statute on its face does not suggest that there may not be further analysis of a penalty as it is applied in a particular case. See 372 U. S., at 169. Most of the lower court confusion and criticism of Halper appears to have focused on the problem of characterizing—by examining the face of the statute—the purposes of a civil penalty as punishment, not on the application of double jeopardy analysis to the penalties that are imposed in particular cases. It seems to me quite possible that
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