Double Jeopardy Protection from Civil Sanctions after Hudson V. United States

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Hudson v. United States, 118 S. Ct 488 (1997).

I. INTRODUCTION

In 1989, the Office of the Comptroller of Currency ("OCC"), a federal administrative agency, imposed monetary penalties and occupational debarment on three bank officials from Oklahoma for violating several federal banking statutes and regulations.(1) The officials were later indicted on criminal charges arising from the same conduct, and subsequently moved to dismiss the criminal charges, claiming that the Double Jeopardy Clause of the Fifth Amendment protected them from being punished in a second proceeding.(2) A United States District Court dismissed the indictments,(3) but the Tenth Circuit Court of Appeals reversed and reinstated the indictments, relying on the double jeopardy test set forth in United States v. Halper, and finding that the actual fines imposed by the OCC in the civil proceeding were not so grossly disproportionate to the costs of the Government as to constitute punishment under the Court's double jeopardy standard.(4)

The Supreme Court affirmed the decision of the Tenth Circuit, holding that the civil sanctions imposed on the bankers were not "criminal punishment" in the sense required to trigger the protection of the Double Jeopardy Clause.(5) In doing so, the protection of the Double Jeopardy Clause.(5) In doing so, however, the Court "disavow[ed] the method of analysis used in United States v. Halper and reaffirm[ed] the previously established rule exemplified in United States v. Ward."(6)

This Note addresses the extent to which an individual may hope to be granted double jeopardy protection from civil penalties assessed by the State. Part II outlines some basic principles underlying the double jeopardy doctrine, and the development of the doctrine through the case law. Part III describes the facts and procedural history of the Hudson case. Part IV summarizes the opinions of the Court in the Hudson case, and Part V concludes with some thoughts on the implications of the Hudson decision for the interests protected by the Double Jeopardy Clause.

II. BACKGROUND

A. THE FUNDAMENTALS OF THE DOUBLE JEOPARDY DOCTRINE

The Double Jeopardy Clause of the Fifth Amendment states that no person shall "be subject or the same offence to be twice put in jeopardy of life or limb."(7) The philosophy underlying the Clause is that "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity."(8) Because double jeopardy protection was thus intended to protect the individual from the tyranny and power of the government, it does not protect individuals from private suits brought by non-government parties.

The Supreme Court has recognized that the Double Jeopardy Clause protects individuals from being criminally prosecuted more than once for the same offense.(9) Protection from subsequent or "successive" criminal prosecutions extends to any party who has already been the subject of a criminal prosecution for the same offense, regardless of the result of the first criminal prosecution.(10) This protection is termed protection from "multiple prosecutions."

The Court has also concluded that the Double Jeopardy Clause protects individuals from the imposition of "multiple punishments' for the same offense.(11) A constitutional prohibition on multiple punishments suggests that civil sanctions imposed by the government (as well as criminal sanctions) are subject to the Double Jeopardy Clause.(12) However, there is dissension on this point on the Court--Justices Scalia and Thomas have criticized the multiple punishment doctrine.(13) Other scholars have noted that the multiple punishment doctrine is problematic from a textual perspective(14) and based on the legislative history surrounding the ratification of the Constitution. …