U.S. Supreme Court

No. 93-144
June 6, 1994

Justice Stevens delivered the opinion of the Court.[fn1]

Montana's Dangerous Drug Tax Act[fn2] took effect on October 1, 1987. The Act imposes a tax "on the possession and storage of dangerous drugs,"[fn3] § 15-25-111, and expressly provides that the tax is to be "collected only after any state or federal fines or forfeitures have been satisfied." § 15-25-111(3). The tax is either 10 percent of the assessed market value of the drugs as determined by the Montana Department of Revenue (DOR) or a specified amount depending on the drug ($100 per ounce for marijuana, for example, and $250 per ounce for hashish), whichever is greater. § 15-25-111(2). The Act directs the state treasurer to allocate the tax proceeds to special funds to support "youth evaluation" and "chemical abuse" programs and "to enforce the drug laws." §§ 15-25-121, 15-25-122.[fn4]

In addition to imposing reporting responsibilities on law enforcement agencies,[fn5] the Act also authorizes theDOR to adopt rules to administer and enforce the tax. Under those rules, taxpayers must file a return within 72 hours of their arrest. Mont. Admin. Rule 42.34.102(1) (1988). The Rule also provides that "[a]t the time of arrest law enforcement personnel shall complete the dangerous drug information report as required by the department and afford the taxpayer an opportunity to sign it." Rule 42.34.102(3). If the tax payer refuses to do so, the law enforcement officer is required to file the form within 72 hours of the arrest. Ibid. The "associated criminal nature of assessments under this act" justifies the expedited collection procedures. See Rule 42.34.103(3) (1988). The taxpayer has no obligation to file a return or to pay any tax unless and until he is arrested.

The six respondents, all members of the extended Kurth family, have for years operated a mixed grain and livestock farm in central Montana.[fn6] In 1986 they began to cultivate and sell marijuana. About two weeks after the new Drug Tax Act went into effect, Montana law enforcement officers raided the farm, arrested the Kurths, and confiscated all the marijuana plants, materials, and paraphernalia they found. In re Kurth Ranch, 145 B. R. 61, 66 (Bkrtcy. Ct. Mont. 1990).[fn7] Theraid put an end to the marijuana business and gave rise to four separate legal proceedings.

In one of those proceedings, the State filed criminal charges against all six respondents in the Montana District Court, charging each with conspiracy to possess drugs with the intent to sell, Mont. Code Ann. § 45-4" 102 (1987), or, in the alternative, possession of drugs with the intent to sell, § 45-9-103.[fn8] Each respondent initially pleaded not guilty, but subsequently entered into a plea agreement. On July 18, 1988, the court sentenced Richard Kurth and Judith Kurth to prison and imposed suspended or deferred sentences on the other four family members.[fn9]

The county attorney also filed a civil forfeiture action seeking recovery of cash and equipment used in the marijuana operation. The confiscated drugs were not involved in that action, presumably because law enforcement agents had destroyed them after an inventory. The respondents settled the forfeiture action with an agreement to forfeit $18,016.83 in cash and various items of equipment.

The third proceeding involved the assessment of the new tax on dangerous drugs. Despite difficulties the DOR had in applying the Act for the first time, it ultimately attempted to collect almost $900,000 in taxes on marijuana plants, harvested marijuana, hash tar and hash oil, interest, and penalties.[fn10] The Kurths contested the assessments in administrative proceedings. Those proceedings were automatically stayed in September 1988, however, when the Kurths initiated the fourth legal proceeding triggered by the raid on their farm: a petition for bankruptcy under Chapter 11 of the Bankruptcy Code. See 11 U.S.C. § 362(a).

In the bankruptcy proceedings, the Kurths objected to the DOR's proof of claim for unpaid drug taxes and challenged the constitutionality of the Montana tax. After a trial, the Bankruptcy Court held most of the assessment invalid as a matter of state law,[fn11] but concluded that an assessment of $181,000 on 1,811 ounces of harvested marijuana was authorized by the Act. It held that assessment invalid under the Federal Constitution.

Relying primarily on United States v. Halper, 490 U.S. 435 (1989), the Bankruptcy Court decided that the assessment constituted a form of double jeopardy. Thecourt rejected the State's argument that the tax was not a penalty because it was designed to recover law enforcement costs; as the court noted, the DOR "failed to introduce one scintilla of evidence as to cost of the above government programs or costs of law enforcement incurred to combat illegal drug activity." 145 B. R., at 74. After noting that a portion of the assessment resulted in a tax eight times the product's market value,[fn12] the court explained that the punitive character of the tax was evident

"because drug tax laws have historically been regarded as penal in nature, the Montana Act promotes the traditional aims of punishment— retribution and deterrence, the tax applies to behavior which is already a crime, the tax allows for sanctions by restraint of Debtors' property, the tax requires a finding of illegal possession of dangerous drugs and therefore a finding of scienter, the tax will promote elimination of illegal drug possession, and the tax appears excessive in relation to the alternate purpose assigned, especially in the absence of any record developed by the State as to societal costs. Finally, the tax follows arrest for possession of illegal drugs and the tax report is made by law enforcement officers, not the taxpayer, who may or may not sign the report." Id., at 75-76.

These aspects led the court to the "inescapable conclusion" that the drug tax statute's purpose was deterrence and punishment. Id., at 76.

The District Court affirmed. Agreeing with the Bankruptcy Court's findings and reasoning, it concluded that the Montana Dangerous Drug Tax Act "simply punishes the Kurths a second time for the same criminal conduct." In re Kurth Ranch, CV 90-084%PGH, 1991 WL 365065 (D. Mont., Apr. 23, 1991) (reprinted at App. to Pet. for Cert. 22). That and the DOR's failure to provide an accounting of its actual damages or costs convinced the Bankruptcy Court that the tax assessments violated the Fifth Amendment's Double Jeopardy Clause. Ibid.

The Court of Appeals for the Ninth Circuit also affirmed, but based its conclusion largely on the State's refusal to offer evidence justifying the tax, and accordingly refused to hold the tax unconstitutional on its face. In re Kurth Ranch, 986 F. 2d 1308, 1312 (CA9 1993). The court first determined that under Halper, a disproportionately large civil penalty can be punitive for double jeopardy purposes. Id., at 1310. That the assessment is called a tax, as opposed to some kind of penalty, is not controlling. Id., at 1310-1311. The central inquiry under Halper, the court determined, is whether the sanction imposed is rationally related to the damages the government suffered. Id., at 1311. That inquiry only applies to cases in which there has been a separate criminal conviction, however.[fn13] The courtconcluded that the Kurths were entitled to an accounting to determine if the sanction constitutes an impermissible second punishment, and because the State refused to offer any such evidence, it held the tax unconstitutional as applied to the Kurths. 986 F. 2d, at 1312.


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The Court of Appeals for the Ninth Circuit also affirmed, but based its conclusion largely on the State's refusal to offer evidence justifying the tax, and accordingly refused to hold the tax unconstitutional on its face. In re Kurth Ranch, 986 F. 2d 1308, 1312 (CA9 1993). The court first determined that under Halper, a disproportionately large civil penalty can be punitive for double jeopardy purposes. Id., at 1310. That the assessment is called a tax, as opposed to some kind of penalty, is not controlling. Id., at 1310-1311. The central inquiry under Halper, the court determined, is whether the sanction imposed is rationally related to the damages the government suffered. Id., at 1311. That inquiry only applies to cases in which there has been a separate criminal conviction, however.[fn13] The courtconcluded that the Kurths were entitled to an accounting to determine if the sanction constitutes an impermissible second punishment, and because the State refused to offer any such evidence, it held the tax unconstitutional as applied to the Kurths. 986 F. 2d, at 1312.

While this case was pending on appeal, the Montana Supreme Court reversed two lower state court decisions that had held that the Dangerous Drug Tax was a form of double jeopardy. Sorensen v. State Dept. of Revenue, 254 Mont. 61, 836 P. 2d 29 (1992). Over the dissent of two Justices, the State Supreme Court found that the legislature had intended to establish a civil, not a criminal, penalty and that the tax had a remedial purpose other than promoting retribution and deterrence. Id., at 31. The court found that Halper was not controlling, both because it expressly announced " `a rule for the rare case' " and because the case involved a civil penalty, not a tax. Id., at 32-33. The Sorensen court concluded that the drug tax was not excessive and that a tax, unlike the civil sanction at issue in Halper, requires no proof of the State's remedial costs on the part of the State. Id., at 33.

The Montana Supreme Court's decision is directly at odds with the conclusion reached in the federal proceedings involving the Kurths. We therefore granted certiorari to review the decision of the Court of Appeals. 509 U. S. ___ (1993). We now affirm its judgment.

In Halper we considered "whether and under what circumstances a civil penalty may constitute `punishment' for the purpose of double jeopardy analysis." 490 U. S., at 436. Our answer to that question does notdecide the different question whether Montana's tax should be characterized as punishment.

Halper was convicted of 65 separate violations of the criminal false claims statute, 18 U.S.C. § 287 each involving a demand for $12 in reimbursement for medical services worth only $3. After Halper was sentenced to two years in prison and fined $5,000, the Government filed a separate action to recover a $2,000 civil penalty for each of the 65 violations. See 31 U.S.C. § 3729 (1982 ed., Supp. II). The District Court found that the $130,000 recovery the statute authorized "bore no `rational relation' to the sum of the Government's $585 actual loss plus its costs in investigating and prosecuting Halper's false claims." 490 U. S., at 439. In the court's view, a civil penalty "more than 220 times greater than the Government's measurable los[s] qualified as punishment" that was barred by the Double Jeopardy Clause. Ibid.

On direct appeal to this Court, we rejected the Government's submission that the Double Jeopardy Clause only applied to punishment imposed in criminal proceedings, reasoning that its violation "can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state." Id., at 447.[fn14] In making such an assessment, "the labels `criminal' and `civil' are not of paramount importance." Ibid. Accepting the District Court's findings, we held that "a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extentthat the second sanction may not fairly be characterizedas remedial, but only as a deterrent or retribution." Id., at 448-449.

Halper thus decided that the legislature's description of a statute as civil does not foreclose the possibility that it has a punitive character.[fn15] We also recognized in Halper that a so called civil "penalty" may be remedial in character if it merely reimburses the government for its actual costs arising from the defendant's criminal conduct. Id., at 449-450, 452. We therefore remanded the case to the District Court to determine what portion of the statutory penalty could be sustained as compensation for the Government's actual damages.

Halper did not, however, consider whether a tax may similarly be characterized as punitive.

Criminal fines, civil penalties, civil forfeitures, and taxes all share certain features: They generate government revenues, impose fiscal burdens on individuals, and deter certain behavior. All of these sanctions are subject to constitutional constraints. A government may not impose criminal fines without first establishing guilt by proof beyond a reasonable doubt. Cf. In re Winship, 397 U.S. 358 (1970). A defendant convicted and punished for an offense may not have a nonremedial civil penaltyimposed against him for the same offense in a separate proceeding. Halper, supra. A civil forfeiture may violate the Eighth Amendment's proscription against excessive fines. Austin v. United States, 509 U. S. ___ (1993). And a statute imposing a tax on unlawful conduct may be invalid because its reporting requirements compel taxpayers to incriminate themselves. Marchetti v. United States, 390 U.S. 39 (1968).

As a general matter, the unlawfulness of an activity does not prevent its taxation. Marchetti, 390 U. S., at 44; United States v. Constantine, 296 U.S. 287, 293 (1935); James v. United States, 366 U.S. 213 (1961). Montana no doubt could collect its tax on the possession of marijuana, for example, if it had not previously punished the taxpayer for the same offense, or, indeed, if it had assessed the tax in the same proceeding that resulted in his conviction. Missouri v. Hunter, 459 U.S. 359, 368-369 (1983); see also Halper, 490 U. S., at 450. Here, we ask only whether the tax has punitive characteristics that subject it to the constraints of the Double Jeopardy Clause.

Although we have never held that a tax violated the Double Jeopardy Clause, we have assumed that one might.[fn16] In the context of other constitutional requirements, we have repeatedly examined taxes for constitutional validity. We have cautioned against invalidating a tax simply because its enforcement might be oppressive or because the legislature's motive was somehow suspect, A. Magnano Co. v. Hamilton, 292 U.S. 40, 44 (1934). Yet we have also recognized that "there comes a time in the extension of the penalizing features of the so called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment." Id., at 46 (citing Child Labor Tax Case, 259 U.S. 20, 38 (1922)). That comment, together with Halper's unequivocal statement that labels do not control in a double jeopardy inquiry, indicates that a tax is not immune from double jeopardy scrutiny simply because it is a tax.

Halper recognized that "[t]his constitutional protection is intrinsically personal," and that only "the character of the actual sanctions" can substantiate a possible double jeopardy violation. 490 U. S., at 447. Whereas fines, penalties, and forfeitures are readily characterized as sanctions, taxes are typically different because they are usually motivated by revenue raising rather than punitive purposes. Yet at some point, an exaction labeled as a tax approaches punishment, and our task is to determine whether Montana's drug tax crosses that line.


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We begin by noting that neither a high rate of taxation nor an obvious deterrent purpose automatically marks this tax a form of punishment. In this case, although those factors are not dispositive, they are at least consistent with a punitive character. A significant part of the assessment was more than eight times the drug's market value—a remarkably high tax.[fn17] Thatthe Montana legislature intended the tax to deter people from possessing marijuana is beyond question.[fn18] The DOR reminds us, however, that many taxes that are presumed valid, such as taxes on cigarettes and alcohol, are also both high and motivated to some extent by an interest in deterrence. Indeed, although no double jeopardy challenge was at issue, this Court sustained the steep $100 per ounce federal tax on marijuana in United States v. Sanchez, 340 U.S. 42 (1950). Thus, while a high tax rate and deterrent purpose lend support to the characterization of the drug tax as punishment, these features, in and of themselves, do not necessarily render the tax punitive. Cf. Sonzinsky v. United States, 300 U.S. 506, 513-514 (1937).

Other unusual features, however, set the Montana statute apart from most taxes. First, this so called tax is conditioned on the commission of a crime. Thatcondition is "significant of penal and prohibitory intent rather than the gathering of revenue."[fn19] Moreover, the Court has relied on the absence of such a condition to support its conclusion that a particular federal tax was a civil rather than a criminal sanction.[fn20] In this case, the tax assessment not only hinges on the commission of a crime, it also is exacted only after the taxpayer has been arrested for the precise conduct that gives rise to the tax obligation in the first place.[fn21] Persons who have been arrested for possessing marijuana constitute the entire class of taxpayers subject to the Montana tax.

Taxes imposed upon illegal activities are fundamentally different from taxes with a pure revenue raising purpose that are imposed despite their adverse effect onthe taxed activity. But they differ as well from mixed motive taxes that governments impose both to deter a disfavored activity and to raise money. By imposing cigarette taxes, for example, a government wants to discourage smoking. But because the product's benefits—such as creating employment, satisfying consumer demand, and providing tax revenues—are regarded as outweighing the harm, that government will allow the manufacture, sale, and use of cigarettes as long as the manufacturers, sellers, and smokers pay high taxes that reduce consumption and increase government revenue. These justifications vanish when the taxed activity is completely forbidden, for the legitimate revenue raising purpose that might support such a tax could be equally well served by increasing the fine imposed upon conviction.[fn22]

The Montana tax is exceptional for an additional reason. Although it purports to be a species of property tax—that is, a "tax on the possession and storage ofdangerous drugs," Mont. Code Ann. § 15-25-111 (1987)—it is levied on goods that the taxpayer neither owns nor possesses when the tax is imposed. Indeed, the State presumably destroyed the contraband goods in this case before the tax on them was assessed. If a statute that amounts to a confiscation of property is unconstitutional, Heiner v. Donnan, 285 U.S. 312, 326 (1932); Nichols v. Coolidge, 274 U.S. 531, 542 (1927), a tax on previously confiscated goods is at least questionable.[fn23] A tax on "possession" of goods that no longer exist and that the taxpayer never lawfully possessed has an unmistakable punitive character. This tax, imposed on criminals and no others, departs so far from normal revenue laws as to become a form of punishment.

Taken as a whole, this drug tax is a concoction of anomalies, too far removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of Double Jeopardy analysis.[fn24]

Because Montana's tax is fairly characterized as punishment, the judgment of the Court of Appeals must be affirmed. In Halper, we recognized that a civil penalty may be imposed as a remedy for actual costs tothe State that are attributable to the defendant's conduct. 490 U. S., at 452. Yet as The Chief Justice points out, tax statutes serve a purpose quite different from civil penalties, and Halper's method of determining whether the exaction was remedial or punitive "simply does not work in the case of a tax statute." Post, at 3 (dissenting opinion). Subjecting Montana's drug tax to Halper's test for civil penalties is therefore inappropriate. Even if it were proper to permit such a showing, Montana has not claimed that its assessment in this case even remotely approximates the cost of investigating, apprehending, and prosecuting the Kurths, or that it roughly relates to any actual damages that they caused the State. And in any event, the formula by which Montana computed the tax assessment would have been the same regardless of the amount of the State's damages and, indeed, regardless of whether it suffered any harm at all.

This drug tax is not the kind of remedial sanction that may follow the first punishment of a criminal offense. Instead, it is a second punishment within the contemplation of a constitutional protection that has "deep roots in our history and jurisprudence," Halper, 490 U. S., at 440, and therefore must be imposed during the first prosecution or not at all. The proceeding Montana initiated to collect a tax on the possession of drugs was the functional equivalent of a successive criminal prosecution that placed the Kurths in jeopardy a second time "for the same offence."

The judgment of the Court of Appeals is affirmed.

It is so ordered.


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  1. The Fifth Amendment provides that "No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb . . . ." U. S. Const., Amdt. 5. The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Although its text mentions only harms to "life or limb," it is well settled that the Amendment covers imprisonment and monetary penalties. See, e. g. Ex parte Lange, 18 Wall. 163 (1874); United States v. Halper, 490 U.S. 435 (1989). In Benton v. Maryland, 395 U.S. 784, 794 (1969), we held that this guarantee "represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment." See, W. LaFave & J. Israel, Criminal Procedure 1058-1059 (2d ed. 1992); 2 D. Rudstein, C. Erlinder, & D. Thomas, Criminal Constitutional Law ¶ 11.01[3]b, pp. 11-59 to 11-60 (1993).
  2. Mont. Code Ann. §§ 15-25-101 through 15-25-123 (1987). See In re Kurth Ranch, 145 B. R., 61, 66 (Bkrtcy. Ct. Mont. 1990). We refer throughout this opinion to the 1987 edition of the Montana Code — the version in effect at the time of the Kurths' arrest. Some sections of the Dangerous Drug Tax Act have since been amended.
  3. The Act defines "dangerous drug" as that term is defined in the Montana Code provisions that criminalize the possession of such drugs, see Mont. Code Ann. §§ 15-25-103(2), 50-32-101(6), 45-9-102 (1987), and authorize their seizure, see § 44-12-103 (1987).
  4. According to the Act's preamble, the Montana Legislature recognizes that the use of dangerous drugs is not acceptable, but concludes that because the manufacturing and sale of such drugs has an economic impact on the State, "it is appropriate that some of the revenue generated by this tax be devoted to continuing investigative efforts directed toward the identification, arrest, and prosecution of individuals involved in conducting illegal continuing criminal enterprises that affect the distribution of dangerous drugs in Montana." 1987 Mont. Laws, ch. 563, p. 1416.
  5. Section 5(1) of the Act provides that "[a]ll law enforcement personnel and peace officers shall promptly report each person subject to the taxto the department, together with such other information which the department may require, in a manner and on a form prescribed by the department." Mont. Code Ann. § 15-25-113(1) (1987).
  6. The respondents are Richard Kurth; his wife, Judith Kurth; their son, Douglas Kurth; their daughter, Cindy Halley; Douglas's wife, Rhonda Kurth; and Cindy's husband, Clayton Halley.
  7. The Drug Tax Report listed the following seized items:
    1. 2155 marijuana plants in various stages of growth,
    2. 7 gallons of hash oil, (lined out),
    3. 4 bags of marijuana at two pounds each,
    4. 65/one gram vials of hash tar,
    5. 14 baby food size jars of hash tar,
    6. 7 pint jars of hash tar,
    7. 1 bag of marijuana, 1/4 pound,
    8. 5 plastic bags of marijuana, total 2230 grams,
    9. approximately 100 pounds of marijuana stems, leaves, parts, etc." 145 B. R., at 66-67.
  8. Plaintiff's Exhs. 3, 5, 7, 9, 11, 13; 145 B. R., at 64-65. Richard Kurth was also charged with criminal sale of dangerous drugs (marijuana), Mont. Code Ann. § 45-9-101 (1987), criminal possession of a dangerous drug (marijuana) with intent to sell, § 45-9-103, solicitation to commit the offense of criminal possession of a dangerous drug (marijuana) with intent to sell, § 45-4-101, and criminal possession of a dangerous drug (hashish), § 45-9-102. See Plaintiff's Exh. 3.
  9. Because only one respondent, Richard Kurth, was adjudged guilty of the offense of possession (the other five pleaded guilty to the conspiracy count), Montana has suggested that only he has standing to argue that the tax on possession constitutes a second punishment for the same offense. Respondents counter that Montana's withdrawal of the possession charges pursuant to the plea agreements would bar a second prosecution for possession. The issue was not raised below, so we do not address it.
  10. The precise figure appears to be $894,940.99. 145 B. R., at 68. The Court of Appeals' figure of "nearly $865,000," In re Kurth Ranch, 986 F. 2d 1308, 1310 (CA9 1993), apparently failed to take account of the $30,000 collected before computation of the final assessment. 145 B. R., at 68.
  11. Specifically, the Bankruptcy Court held that the assessments on the live marijuana plants and the marijuana oil were "arbitrary" and "lacked any basis in fact." 145 B. R., at 69.
  12. That portion is the tax imposed upon 100 pounds of "shake." "Shake" refers to the stems, leaves, and other loose parts of the marijuana plant that have less value because of their lower levels of tetrahydrocannabinol (THC), the chemical substance in marijuana that activates a user's senses. 145 B. R., at 66. Officials placed the market value for shake at $200 a pound. Thus when Montana taxed the shake at $100 per ounce, or $1,600 per pound, it taxed it at eight times its market value. Id., at 72.
  13. It is on this basis that the court distinguished this Court's cases holding a federal marijuana tax to be nonpunitive, see Minor v. United States, 396 U.S. 87 (1969); United States v. Sanchez, 340 U.S. 42 (1950), which did not involve previous criminal convictions. 986 F. 2d, at 1311. The court acknowledged that a State may legitimately tax criminal activities, id., at 1311 (citing Marchetti v. United States, 390 U.S. 39, 44 (1968)), and that a civil sanction need not satisfy a remedialanalysis when it is imposed apart from a criminal conviction. 986 F. 2d, at 1311 (citing Commonwealth Edison Co. v. Montana, 453 U.S. 609, 623 (1981)).
  14. We noted, however, that whether a sanction constitutes punishment is not determined from the defendant's perspective, as even remedial sanctions carry the "sting of punishment." 490 U. S., at 447, n. 7 (citing United States ex rel. Marcus v. Hess, 317 U.S. 537, 551 (1943)).
  15. Notably, in reaching that conclusion we relied in part on an earlier case recognizing that a tax statute might be considered punitive in character for double jeopardy purposes. See 490 U. S., at 443. That case, United States v. La Franca, 282 U.S. 568 (1931), observed that the words "tax" and "penalty" "are not interchangeable, one for the other" and that "if an exaction be clearly a penalty it cannot be converted into a tax by the simple expedient of calling it such." Id., at 572. See also Lipke v. Lederer, 259 U.S. 557, 561 (1922) ("The mere use of the word `tax' in an act primarily designed to define and suppress crime is not enough to show that within the true intendment of the term a tax was laid").
  16. In Helvering v. Mitchell, 303 U.S. 391 (1938), for example, this Court considered a Revenue Act provision requiring the taxpayer to pay an additional 50 percent of the total amount of any deficiency due to fraud with an intent to evade the tax. The Court assumed such a penalty could trigger double jeopardy protection if it were intended for punishment, but it nevertheless held that the statute was constitutional because the 50 percent addition to the tax was remedial, not punitive. Id., at 398-405. Although the penalty at issue in Mitchell is arguably better characterized as a sanction for fraud than a tax, the Court described it interchangeably as a "sanction," id., at 405, 406, an "addition to the tax," id., at 405, an "assessment," id., at 396, and a "tax," id., at 398, making nothing of the potential import of the distinction.
  17. The State recovered 1,811 ounces of marijuana with an estimated value of $46,000, and taxed the marijuana at $100 per ounce (that is, the greater of 10 percent of market value or $100 perounce), for a total tax of $181,000. The State thus taxed the drugs at about 400 percent of their market value. Compared to similar taxes on legal goods and activities, Montana's tax—assessed at a rate of 10 percent or roughly 400 percent of market value, whichever is greater—appears to be unrivaled. Even the taxes identified by the United States, which supports the DOR as amicus curiae, do not approach a level this high. See Brief for United States as Amicus Curiae 23-24. The United States notes hypothetically, for example, that the current 24-cent per pack federal tax on cigarettes could, under a new health plan, be increased to 99 cents, resulting in a total tax burden that "could easily surpass" the 80 percent rate that Montana imposed on the part of the marijuana consisting of the higher valued "buds." Ibid. The Government offers no such example, however, of a tax equivalent to that assessed on the combined cache of buds and lower valued "shake." See n. 12, supra.
  18. For example, although the Act's preamble evinces a clear motivation to raise revenue, it also indicates that the tax will provide for anticrime initiatives by "burdening" violators of the law instead of "law abiding taxpayers"; that use of dangerous drugs is not acceptable; and that the Act is not intended to "give credence" to any notion that manufacturing, selling, or using drugs is legal or proper. 1987 Mont. Laws, ch. 563, p. 1416.
  19. United States v. Constantine, 296 U.S. 287, 295 (1935) (concluding that a tax was motivated by penal instead of revenue raising intent in part because the taxpayer had to pay an additional sum based on his illegal conduct). See also United States v. La Franca, 282 U. S., at 571, 575 (holding that a liquor tax assessed only against those prosecuted for illegal manufacture or sale of liquor was barred on statutory grounds, thus avoiding the "grave constitutional question" whether double jeopardy principles precluded such an assessment).
  20. In Sanchez we examined a federal marijuana tax, IRC §2590" (a)(2) (since repealed, but last codified at 26 U.S.C. § 4741 et seq. (1964)), that taxed the transfer of marijuana to a person who has not paid a special tax and registered. Under the statute, the transferor's liability arose when the transferee failed to pay the tax; as a result, "[s]ince his tax liability does not in effect rest on criminal conduct, the tax can be properly called a civil rather than a criminal sanction." 340 U. S., at 45.
  21. This statute therefore does not raise the question whether an ostensibly civil proceeding that is designed to inflict punishment may bar a subsequent proceeding that is admittedly criminal in character. See Justice Scalia's dissent, post, at 7-8. Nor does the statute require us to comment on the permissibility of "multiple punishments" imposed in the same proceeding, cf. Ex parte Lange, 18 Wall. 163 (1874); North Carolina v. Pearce, 395 U.S. 711 (1969), since it involves separate sanctions imposed in successive proceedings.
  22. In this case, it is significant that the same sovereign that criminalized the activity also imposed the tax. Contrarily, most of our cases confirming that the unlawfulness of an activity does not prevent its taxation involve taxes on acts prohibited by other sovereigns. For example, United States v. Constantine, supra, involved a federal excise tax on retail liquor sales that violated state law. 296 U. S., at 293. Likewise, in James v. United States, 366 U.S. 213 (1961), a federal tax on embezzled money was imposed upon a man who had pleaded guilty in state court to conspiracy to embezzle. Id., at 214. And Marchetti v. United States, 390 U.S. 39 (1968), involved a federal tax on gambling activities primarily prohibited under state law, though as the Court there noted, some federal statutes also prohibited activities ancillary to wagering. Id., at 44-47. The importance of the distinction between same sovereign proceedings and dual sovereign proceedings also is borne out by our cases holding that the Constitution does not prohibit successive prosecutions by different sovereigns based on the same conduct. See, e. g., Bartkus v. Illinois, 359 U.S. 121 (1959) (state prosecution after federal); Abbate v. United States, 359 U.S. 187 (1959) (federal prosecution after state)
  23. Curiously, one of two alternative measures of the tax is the market value of a substance that cannot legally be marketed.
  24. Courts—including this Court in United States v. Sanchez, 340 U.S. 42 (1950)—have frequently commented on the punishing and deterrent nature of drug taxes. See, e. g., Sims v. State Tax Comm'n, 841 P. 2d 6, 13 (Utah 1992); Rehg v. Illinois Dept. of Revenue, 152 Ill. 2d 504, 515, 605 N. E. 2d 525, 531 (Ill. 1992); State v. Gallup, 500 N. W. 2d 437, 445 (Iowa 1993); State v. Roberts, 384 N. W. 2d 688, 691 (S. D. 1986); State v. Berberich, 284 Kan. 854, 811 P. 2d 1192, 1200 (Kan. 1991); State v. Durrant, 244 Kan. 522, 769 P. 2d 1174, 1181 (Kan. 1989), cert. denied sub nom. Dressel v. Kansas, 492 U.S. 923 (1989).