Cite as: 531 U. S. 250 (2001)
Scalia, J., concurring
'good faith' was considered in determining the amount of the penalty to be imposed in this case [a circumstance that would normally indicate the assessment is punitive] is irrelevant, as we look only to 'the statute on its face' to determine whether a penalty is criminal in nature." Hudson, supra, at 104, quoting Kennedy, supra, at 169. We repeated, to be sure, the principle that the statutory scheme would be criminal if it was sufficiently punitive " 'either in purpose or effect,'" Hudson, supra, at 99 (emphasis added), quoting United States v. Ward, 448 U. S. 242, 248-249 (1980), but it was clear from the opinion that this referred to effects apparent upon the face of the statute.
The short of the matter is that, for Double Jeopardy and Ex Post Facto Clause purposes, the question of criminal penalty vel non depends upon the intent of the legislature;* and harsh executive implementation cannot "transfor[m] what was clearly intended as a civil remedy into a criminal penalty," Rex Trailer Co. v. United States, 350 U. S. 148, 154 (1956), any more than compassionate executive implementation can transform a criminal penalty into a civil remedy. This is not to say that there is no relief from a system that administers a facially civil statute in a fashion that would render it criminal. The remedy, however, is not to invalidate the legislature's handiwork under the Double Jeopardy Clause, but to eliminate whatever excess in administration contradicts the statute's civil character. When, as here, a state statute is at issue, the remedy for implementation that does not comport with the civil nature of the statute is resort to the traditional state proceedings that challenge unlawful executive action; if those proceedings fail, and the state
*Hudson v. United States, 522 U. S. 93 (1997), addressed only the Double Jeopardy Clause. Since, however, the very wording of the Ex Post Facto Clause—"No State shall . . . pass any . . . ex post facto Law," U. S. Const., Art. I, § 10, cl. 1 (emphases added)—leaves no doubt that it is a prohibition upon legislative action, the irrelevance of subsequent executive implementation to that constitutional question is, if anything, even clearer.
269
Page: Index Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NextLast modified: October 4, 2007