268
Scalia, J., concurring
years ago, we rejected a similar double jeopardy challenge (based upon the statute's implementation "as applied" to the petitioners), where the statute had not yet been determined to be civil in nature, and where we were making that determination "in the first instance." See Hudson v. United States, 522 U. S. 93 (1997). To be consistent with the most narrow holding of that case (which, unlike this one, did not involve imposition of confinement), any consideration of subsequent implementation in the course of making a "first instance" determination cannot extend to all subsequent implementation, but must be limited to implementation of confinement, and of other impositions that are "not a fixed event," ante, at 263. That, however, would be a peculiar limitation, since even "fixed events" such as the imposition of a fine can, in their implementation, acquire penal aspects— exemplified in Hudson by the allegedly punitive size of the fines, and by the availability of reduction for "good-faith" violations, see 522 U. S., at 97-98, 104. Moreover, the language and the reasoning of Hudson leave no room for such a peculiar limitation.
In that case, the petitioners contended that the punitive nature of the statute that had been applied to them could be assessed by considering the aforementioned features of the fines. We flatly rejected that contention, which found support in our prior decision in United States v. Halper, 490 U. S. 435 (1989). Halper, we said, had erroneously made a "significant departure" from our prior jurisprudence, in deciding "to 'asses[s] the character of the actual sanctions imposed,' 490 U. S., at 447, rather than, as Kennedy [v. Mendoza-Martinez, 372 U. S. 144 (1963),] demanded, evaluating the 'statute on its face' to determine whether it provided for what amounted to a criminal sanction, [id.], at 169." 522 U. S., at 101. The Kennedy factors, we said, " 'must be considered in relation to the statute on its face,' " 522 U. S., at 100, quoting from Kennedy v. Mendoza-Martinez, 372 U. S. 144, 169 (1963). We held that "[t]he fact that petitioners'
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