The Double Jeopardy Clause of the Fifth Amendment has traditionally been held by the Supreme Court to protect a defendant from three things: (1) a second prosecution after an acquittal, (2) a second prosecution after a conviction, and (3) multiple punishments. It is the third protection that is involved in the current debate concerning civil penalties and whether or not they constitute punishment and are therefore prohibited after a defendant has been criminally convicted and punished.
For almost 200 years, the Court held that the Double Jeopardy Clause only applied to criminal cases. In 1989, the Court for the first time held that a civil penalty, under certain circumstances, may constitute a punishment and therefore violate the Double Jeopardy Clause if the defendant has already been punished criminally. In 1994, the Court extended this line of jurisprudence to include a tax statute that the Court determined was acting as a second punishment.
This paper will argue that both of these cases were decided incorrectly and ought to be overturned. The first case ought to be overturned because there is no historical prohibition against multiple punishments. The second case ought to be overturned because the Court had never before deemed a tax statute as anything but a revenue gathering tool.
This paper will also argue that a preferable route would be to challenge these civil penalties and taxes as a possible violation of the Excessive Fines Clause of the Eighth Amendment.
Katherine Kruger, ’97
Sponsor: Craig Allin