522 U.S. 93 (1997)
In the early and mid-1980s, petitioner John Hudson was the chairman and controlling shareholder of the First National Bank of Tipton and the First National Bank of Hammon.1
During the same period, petitioner Jack Rackley was president of Tipton and a member of the board of directors of Hammon.2 Petitioner Larry Baresel was a member of the board of directors of both Tipton and Hammon.3
An examination of Tipton and Hammon led the Office of the Comptroller of the Currency to conclude that petitioners had used their bank positions to arrange a series of loans to third parties.4 Those loans violated federal banking statutes and regulations.5 According to the OCC, those loans were in reality made to Hudson in order to enable him to redeem bank stock that he had pledged as collateral on defaulted loans.6 The illegal loans resulted in losses to Tipton and Hammon of almost $900,000 and contributed to the failure of those banks.7
On February 13, 1989, OCC issued a Notice of Assessment of Civil Money Penalty.8 The notice alleged that petitioners had violated 12 U.S.C. §§ 84(a)(1) and 375b and related regulations by causing the banks to make loans to nominee borrowers in a manner that unlawfully allowed Hudson to receive the benefit of the loans.9 OCC assessed penalties of $100,000 against Hudson and $50,000 each against Rackley and Baresel.10 On August 31, 1989, OCC also issued a Notice of Intention to Prohibit Further Participation against each petitioner.11
In October 1989, petitioners resolved the OCC proceedings against them by each entering into a Stipulation and Consent Order.12 These consent orders provided that Hudson, Baresel, and Rackley would pay assessments of $16,500, $15,000, and $12,500 respectively.13 In addition, each petitioner agreed not to participate in any manner in the affairs of any banking institution without the written authorization of the OCC and all other relevant regulatory agencies.14
In August 1992, petitioners were indicted in the Western District of Oklahoma in a 22-count indictment on charges of conspiracy, misapplication of bank funds, and making false bank entries.15 The violations charged in the indictment rested on the same lending transactions that formed the basis for the prior administrative actions brought by OCC.16 Petitioners moved to dismiss the indictment on double jeopardy grounds, but the District Court denied the motions.17 The Court of Appeals affirmed the District Court's holding on the nonparticipation sanction issue, but vacated and remanded to the District Court on the money sanction issue.18 The District Court on remand granted petitioners' motion to dismiss the indictments.19 This time the Government appealed, and the Court of Appeals reversed.20 The Supreme Court granted certiorari because of concerns about the wide variety of novel double jeopardy claims spawned in the wake of Halper.21
Whether the Double Jeopardy Clause of the Fifth Amendment bars a subsequent criminal prosecution after the Office of the Comptroller of the Currency has imposed monetary penalties and debarment sanctions on the same individuals for the same conduct?22
The Double Jeopardy Clause protects only against the imposition of multiple criminal punishments for the same offense and then only when such occurs in successive proceedings.23 Whether a particular punishment is criminal or civil is primarily a matter of statutory construction.24 A court must first ask whether the legislature indicated either expressly or impliedly a preference for one label or the other.25 Even in those cases where the legislature has indicated an intention to establish a civil penalty, a court must still examine whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.26 In regard to this latter inquiry, only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground.27
No. The administrative proceedings were civil, not criminal, so the later indictment does not implicate the Clause.28 In the early and mid-1980s Hudson served as chairman and controlling shareholder of the First National Bank of Tipton and the First National Bank of Hammon while Rackley and Baresel held officer and director positions at those institutions.29 An OCC examination revealed that petitioners arranged loans to third parties that actually benefited Hudson and violated federal banking statutes, producing nearly nine hundred thousand dollars in losses and contributing to the banks' failure.30 On February 13, 1989 the OCC issued notices of assessment classifying the penalties as civil money penalties and notices of intention to prohibit further participation in banking.31
Petitioners resolved those proceedings through October 1989 consent orders that imposed reduced civil assessments of sixteen thousand five hundred dollars on Hudson, fifteen thousand dollars on Baresel, and twelve thousand five hundred dollars on Rackley together with debarment from banking absent regulatory approval.32 When the 1992 indictment charged conspiracy, misapplication of bank funds, and false entries arising from the identical lending transactions, the prior sanctions remained civil because the governing statutes expressly labeled the monetary penalties civil and the debarment authority rested with federal banking agencies, a placement that supplies prima facie evidence of civil character.33 The consent orders effected only monetary payments and occupational restrictions without any criminal adjudication or imprisonment, confirming that the sanctions never crossed into criminal territory.34
The Double Jeopardy Clause does not bar the later criminal prosecution because the administrative proceedings were civil, not criminal.35
Related opinions on this issue
Joined by Justice Thomas
Justice Scalia joined the opinion of the Court but wrote separately to express his view that the Double Jeopardy Clause prohibits only multiple criminal prosecutions, not civil sanctions that may have a deterrent effect.36 He agreed that Halper's test was ill considered and unworkable.37 Scalia noted that the Court's approach returns the law to its state immediately prior to Halper, which required successive criminal prosecutions for multiple-punishments claims.38
He concluded that so long as that requirement is maintained, the multiple-punishments jurisprudence essentially duplicates what he believes to be the correct double jeopardy law.39
Justice Stevens concurred in the judgment on the narrower ground that the criminal charges and the OCC violations each required proof of an element the other did not, so Blockburger permitted successive proceedings without any need to revisit Halper or recharacterize the sanctions.40 He explained that under Blockburger's same-elements test, the penalties imposed in 1989 were based on violations of lending limits that did not require proof of intent to defraud or false entries.41 The 1992 indictment charged conspiracy and false entries that did not require proof that lending limits had been exceeded.42
Stevens emphasized that this case could easily be decided by straightforward application of well-established precedent without reexamining Halper.43
Whether the administrative monetary penalties and debarment sanctions imposed by the Office of the Comptroller of the Currency constitute criminal punishment for purposes of the Double Jeopardy Clause?44
A sanction constitutes criminal punishment only if the legislature intended it to be criminal or, despite a civil label, the scheme is so punitive in purpose or effect that the clearest proof shows it must be treated as criminal.45 Relevant guideposts include whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether it promotes retribution and deterrence, whether the behavior is already a crime, whether an alternative nonpunitive purpose is assignable, and whether it appears excessive in relation to that alternative purpose.46 These factors are considered on the face of the statute and none is dispositive.47
No. The OCC money penalties and debarment sanctions do not constitute criminal punishment.48 The statutes expressly denominated the monetary assessments civil money penalties and placed debarment authority in banking agencies, demonstrating congressional intent to create civil remedies.49 Neither sanction historically has been viewed as punishment because revocation of a voluntarily granted banking privilege and payment of fixed sums have long been enforced through civil proceedings.50 The debarment imposes no affirmative disability or restraint approaching imprisonment, and the penalties may be assessed without a finding of scienter because good faith affects only the amount, not the existence, of liability.51
Although the underlying conduct can also be criminal and the sanctions will deter future violations, the presence of a deterrent purpose does not render a sanction criminal when it also serves the civil goal of protecting the integrity of the banking system.52 Application of the remaining Mendoza-Martinez factors likewise fails to supply the clearest proof needed to override the civil label, because the sanctions rationally advance the nonpunitive objective of industry stability and are not excessive in relation to that objective.53
The administrative monetary penalties and debarment sanctions do not constitute criminal punishment for purposes of the Double Jeopardy Clause.54
Related opinions on this issue
Justice Souter concurred in the judgment and agreed that the Kennedy-Ward factors, beginning with the Blockburger same-elements test, show the sanctions are not criminal.55 He cautioned that the clearest-proof standard must be applied contextually and that expanding civil penalties in areas such as drug enforcement may require closer scrutiny in future cases.56 Souter noted that the efficient starting point for identifying constitutionally relevant behavior, when considering an objection to a successive prosecution, is simply to apply the same-elements test.57
He accepted the Kennedy-Ward analytical scheme but added the caution to be wary of reading the clearest proof requirement as a guarantee that such a demonstration is likely to be as rare in the future as it has been in the past.58
Joined by Justice Ginsburg
Justice Breyer concurred in the judgment but declined to join the discussion of Halper.59 He would apply the Kennedy factors directly to both the face of the statute and its application in the particular case and concluded that neither the statutory scheme nor the reduced assessments imposed here amounted to criminal punishment.60 Breyer disagreed with the majority's use of the clearest proof language, noting that the Court has simply applied factors of the Kennedy variety in practice.61
He would not decide now that a court should evaluate a statute only on its face rather than assessing the character of the actual sanctions imposed.
Whether United States v. Halper should be overruled?62
A precedent may be overruled when it deviates from traditional doctrine, proves unworkable in application, and generates confusion that outweighs any benefits it provides.63 Halper departed from the requirement that a sanction first be shown to be criminal before double-jeopardy analysis applies and substituted an inquiry into whether the sanction serves retributive or deterrent purposes, a test that would classify virtually every civil penalty as punishment.64
Yes. Halper should be overruled because its approach is inconsistent with longstanding double-jeopardy principles and has proved unworkable.65 Halper bypassed the threshold question whether the sanction is criminal and instead asked whether the sanction, regardless of label, is so disproportionate to the harm caused that it must be regarded as punishment.66 That inquiry elevated one Mendoza-Martinez factor to dispositive status and required courts to examine the actual sanction imposed rather than the statute on its face.67
Subsequent decisions recognized that all civil penalties carry some deterrent effect, so Halper would sweep virtually every civil sanction into the criminal category, contradicting the settled rule that the possibility of criminal liability for the same conduct does not convert a civil remedy into punishment.68 The Halper framework also forces courts to await final judgment in the second proceeding before determining whether double jeopardy is implicated, undermining the Clause's protection against even the attempt to impose a second criminal punishment.69 These defects justify returning to the traditional Ward inquiry that first classifies the sanction as civil or criminal on the face of the statute.70
United States v. Halper is overruled.71