author:
CHIEF Justice Rehnquist
      Justice Scalia, Justice Stevens, Justice Soutee,
      Justice Breyer,

text:
    HUDSON et al. v. UNITED STATES
    No. 96-976.
    Argued October 8, 1997
    Decided December 10, 1997

      Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scaua, Kennedy, and Thomas, JJ., joined. Scalia, J., filed a concurring opinion, in which Thomas, X, joined, post, p. 106. Stevens, X, post, p. 106, and Souter, X, post, p. 112, filed opinions concurring in the judgment. Breyer, X, filed an opinion concurring in the judgment, in which Ginsburg, X, joined, post, p. 115.

      Bernard J. Rothbaum argued the cause for petitioners. With him on the briefs were Jack L. Neville, Jr., Lawrence S. Robbins, C. Merle Gile, James A. Rolfe, and Lynn Pringle.

      Deputy Solicitor the United States.- With him on the briefs were Acting

      Solicitor General Dellinger, Acting Assistant Attorney General Keeney, and Paul R. Q. Wolfson.

       Briefs of amicus curiae urging reversal were filed for the National Association of Criminal Defense Lawyers by Arthur F. Mathews and Lisa Kemler; and for the Washington Legal Foundation by Daniel J. Pepeo.

      A brief of amici curiae urging affirmance was filed for 48 States and Territories by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and David M. Gormley, Assistant Attorney General, Jan Graham, Attorney General of Utah, Carol Clawson, Solicitor General, and Marian Decker, Assistant Attorney General, John M. Bailey, Chief States Attorney of Connecticut, Jo Anne Robinson, Interim Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Toetagata A. Mialo of American Samoa, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A Norton of Colorado, M. Jane Brady of Delaware, Robert A Butterworth of Florida, Michael J. Bowers of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Jeffrey A Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Michael G. Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Peter Vemiero of New Jersey, Tom Udall of New Mexico, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Robert B. Dunlap II of the Northern Mariana Islands, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Jose Fuentes-Agosiini of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles M. Condon of South Carolina, Mark W. Barnett of South Dakota, John Knox Walkup of Tennessee, Dan Morales of Texas, William H. Sorrell of Vermont, Julio A Brady of the Virgin Islands, Richard Cullen of Virginia, Christine 0. Gregoire of Washington, and William U. Hill of Wyoming.

   CHIEF Justice Rehnquist

delivered the opinion of the Court.

The Government administratively imposed monetary penalties and occupational debarment on petitioners for violation of federal banking statutes, and later criminally indicted them for essentially the same conduct. We hold that the Double Jeopardy Clause of the Fifth Amendment is not a bar to the later criminal prosecution because the administrative proceedings were civil, not criminal. Our reasons for so holding in large part disavow the method of analysis used in United States v. Halper, 490 U. S. 435, 448 (1989), and reaffirm the previously established rule exemplified in United States v. Ward, 448 U. S. 242, 248-249 (1980).

During the early and mid-1980’s, petitioner John Hudson was the chairman and controlling shareholder of the First National Bank of Tipton (Tipton) and the First National Bank of Hammon (Hammon). During the same period, petitioner Jack Rackley was president of Tipton and a member of the board of directors of Hammon, and petitioner Larry Baresel was a member of the board of directors of both Tipton and Hammon.

An examination of Tipton and Hammon led the Office of the Comptroller of the Currency (OCC) to conclude that petitioners had used their bank positions to arrange a series of loans to third parties in violation of various federal banking statutes and regulations. According to the OCC, those loans, while nominally made to third parties, were in reality made to Hudson in order to enable him to redeem bank stock that he had pledged as collateral on defaulted loans.

On February 13,1989, OCC issued a “Notice of Assessment of Civil Money Penalty.” The notice alleged that petitioners had violated 12 U. S. C. §§ 84(a)(1) and 375b (1982 ed.) and 12 CFR §§ 31.2(b) and 215.4(b) (1986) by causing the banks with which they were associated to make loans to nominee borrowers in a maimer that unlawfully allowed Hudson to receive the benefit of the loans. App. to Pet. for Cert. 89a. The notice also alleged that the illegal loans resulted in losses to Tipton and Hammon of almost $900,000 and contributed to the failure of those banks. Id., at 97a. However, the notice contained no allegation of any harm to the Government as a result of petitioners’ conduct. “After taking into account the size of the financial resources and the good faith of [petitioners], the gravity of the violations, the history of previous violations and other matters as justice may require, as required by 12 U. S. C. §§ 93(b)(2) and 504(b),” OCC assessed penalties of $100,000 against Hudson and $50,000 each against Raekley and Baresel. Id., at 89a. On August 31, 1989, OCC also issued a “Notice of Intention to Prohibit Further Participation” against each petitioner. Id., at 99a. These notices, which were premised on the identical allegations that formed the basis for the previous notices, informed petitioners that OCC intended to bar them from further participation in the conduct of “any insured depository institution.” Id., at 100a.

In October 1989, petitioners resolved the OCC proceedings against them by each entering into a “Stipulation and Consent Order.” These consent orders provided that Hudson, Baresel, and Raekley would pay assessments of $16,500, $15,000, and $12,500 respectively. Id., at 130a, 140a, 135a. 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. Id., at 131a, 141a, 136a.

In August 1992, petitioners were indicted in the Western District of Oklahoma in a 22-eount indictment on charges of conspiracy, 18 U. S. C. §371, misapplication of bank funds, §§656 and 2, and making false bank entries, §1005. The violations charged in the indictment rested on the same lending transactions that formed the basis for the prior administrative actions brought by OCC. Petitioners moved to dismiss the indictment on double jeopardy grounds, but the District Court denied the motions. 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. 14 F. 3d 536 (CA10 1994). The District Court on remand granted petitioners’ motion to dismiss the indictments. This time the Government appealed, and the Court of Appeals reversed. 92 F. 3d 1026 (1996). That court held, following HaVper, that the actual fines imposed by the Government were not so grossly disproportional to the proved damages to the Government as to render the sanctions “punishment” for double jeopardy purposes. We granted certiorari, 520 U. S. 1165 (1997), because of concerns about the wide variety of novel double jeopardy claims spawned in the wake of Halper. We now affirm, but for different reasons.

The Double Jeopardy Clause provides that no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.” We have long recognized that the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, “‘in common parlance,’” be described as punishment. United States ex rel. Marcus v. Hess, 317 U. S. 537, 549 (1943) (quoting Moore v. Illinois, 14 How. 13, 19 (1852)). The Clause protects only against the imposition of multiple criminal punishments for the same offense, Helvering v. Mitchell, 303 U. S. 391, 399 (1938); see also Hess, supra, at 548-549 (“Only” “criminal punishment” “subjeet[s] the defendant to ‘jeopardy within the constitutional meaning”); Breed v. Jones, 421 U. S. 519, 528 (1975) (“In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution”), and then only when such occurs in successive proceedings, see Missouri v. Hunter, 459 Ú. S. 359, 366 (1983).

Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. Helvering, supra, at 399. A court must first ask whether the legislature, “in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Ward, 448 U. S., at 248. Even in those eases where the legislature “has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect,” id., at 248-249, as to “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).

In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963), provide useful guideposts, including: (1) “[wjhether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter (4) “whether its operation will promote the traditional aims of punishment — retribution and deterrence”; (5) “whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.” It is important to note, however, that “these factors must be considered in relation to the statute on its face,” id., at 169, and “only the clearest proof” will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, Ward, supra, at 249 (internal quotation marks omitted).

Our opinion in United States v. Halper marked the first time we applied the Double Jeopardy Clause to a sanction without first determining that it was criminal in nature. In that case, Irwin Halper was convicted of, inter alia, violating the criminal false claims statute, 18 U. S. C. § 287, based on his submission of 65 inflated Medicare claims each of which overcharged the Government by $9. He was sentenced to two years’ imprisonment and fined $5,000. The Government then brought an action against Halper under the civil False Claims Act, 31 U.S.C. §§ 3729-3731 (1982 ed., Supp. II). The remedial provisions of the False Claims Act provided that a violation of the Act rendered one “liable to the United States Government for a civil penalty of $2,000, an amount equal to 2 times the amount of damages the Government sustains because of the act of that person, and costs of the civil action.” Id., § 3729. Given Halper’s 65 separate violations of the Act, he appeared to be liable for a penalty of $130,000, despite the fact he actually defrauded the Government of less than $600. However, the District Court, concluded that a penalty of this magnitude would violate the Double Jeopardy Clause in light of Halper’s previous criminal conviction. While explicitly recognizing that the statutory damages provision of the Act “was not itself a criminal punishment,” the District Court nonetheless concluded that application of the full penalty to Halper would constitute a second “punishment” in violation of the Double Jeopardy Clause. 490 U. S., at 438-439.

On direct appeal, this Court affirmed. As the Halper Court saw it, the imposition of “punishment” of any kind was subject to double jeopardy constraints, and whether a sanction constituted “punishment” depended primarily on whether it served the traditional “goals of punishment,” namely, “retribution and deterrence.” Id., at 448. Any sanction that was so “overwhelmingly disproportionate” to the injury caused that it could not “fairly be said solely to serve [the] remedial purpose” of compensating the Government for its loss, was thought to be explainable only as “serving either retributive or deterrent purposes.” See id., at 448-449 (emphasis added).

The analysis applied by the Halper Court deviated from our traditional double jeopardy doctrine in two key respects. First, the Halper Court bypassed the threshold question: whether the successive punishment at issue is a “criminal” punishment. Instead, it focused on whether the sanction, regardless of whether it was civil or criminal, was so grossly disproportionate to the harm caused as to constitute “punishment.” In so doing, the Court elevated a single Kennedy factor — whether the sanction appeared excessive in relation to its nonpunitive purposes — to dispositive status. But as we emphasized in Kennedy itself, no one factor should be considered controlling as they “may often point in differing directions.” 372 U. S., at 169. The second significant departure in Halper. was the Court’s decision to “asses[s] the character of the actual sanctions imposed,” 490 U. S., at 447, rather than, as Kennedy demanded, evaluating the “statute on its face” to determine whether it provided for what amounted to a criminal sanction, 372 U. S., at 169.

We believe that Halper’s deviation from longstanding double jeopardy principles was ill considered. AlS subsequent eases have demonstrated, Hamper’s test for determining whether a particular sanction is “punitive,” and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable. We have since recognized that all civil penalties have some deterrent effect. See Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767, 777, n. 14 (1994); United States v. Ursery, 518 U. S. 267, 284-285, n. 2 (1996). If a sanction must be “solely” remedial (i. e., entirely nonde-terrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause. Under Halper’s method of analysis, a court must also look at the “sanction actually imposed” to determine whether the Double Jeopardy Clause is implicated. Thus, it will not be possible to determine whether the Double Jeopardy Clause is violated until a defendant has proceeded through a trial to judgment. But in those eases where the civil proceeding follows the criminal proceeding, this approach flies in the face of the notion that the Double Jeopardy Clause forbids the government from even “attempting a second time to punish criminally.” Helvering, 303 U. S., at 399 (emphasis added).

Finally, it should be noted that some of the ills at which Halper was directed are addressed by other constitutional provisions. The Due Process and Equal Protection Clauses already protect individuals from sanctions which are downright irrational. Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). The Eighth Amendment protects against excessive civil fines, including forfeitures. Alexander v. United States, 509 U. S. 544 (1993); Austin v. United States, 509 U. S. 602 (1993). The additional protection afforded by extending double jeopardy protections to proceedings heretofore thought to be civil is more than offset by the confusion created by attempting to distinguish between “punitive” and “nonpunitive” penalties.

Applying traditional double jeopardy principles to the facts of this ease, it is clear that the criminal prosecution of these petitioners would not. violate the Double Jeopardy Clause. It is evident that Congress intended the OCC money penalties and debarment sanctions imposed for violations of 12 U. S. C. §§ 84 and 375b to be civil in nature. As for the money penalties, both §§ 93(b)(1) and 504(a), which authorize the imposition of monetary penalties for violations of §§ 84 and 375b respectively, expressly provide that such penalties are “civil.” While the provision authorizing debarment contains no language explicitly denominating the sanction as civil, we think it significant that the authority to issue debarment orders is conferred upon the “appropriate Federal banking agencies].” §§ 1818(e)(1)-(3). That such authority was conferred upon administrative agencies is prima facie evidence that Congress intended to provide for a civil sanction. See Helvering, supra, at 402; United States v. Spector, 343 U. S. 169, 178 (1952) (Jackson, J., dissenting) (“Administrative determinations of liability to deportation have been sustained as constitutional only by considering them to be-exclusively civil in nature, with no criminal consequences or connotations”); Wong Wing v. United States, 163 U. S. 228, 235 (1896) (holding that quintessential criminal punishments may be imposed only “by a judicial trial”).

Turning to the second stage of the Ward test, we find-that there is little evidence, much less the clearest proof that we require, suggesting that either OCC money penalties or debarment sanctions are “so punitive in form and effect as to render them criminal despite Congress’ intent to the contrary.” Ursery, supra, at 290. First, neither money penalties nor debarment has historically been viewed as punishment. We have long recognized that “revocation of a privilege voluntarily granted,” such as a debarment, “is characteristically free of the punitive criminal element.” Helvering, 303 U. S., at 399, and n. 2. Similarly, “the payment of fixed or variable sums of money [is a] sanction which ha[s] been recognized as enforeible by civil proceedings since the original revenue law of 1789.” Id., at 400.

Second, the sanctions imposed not an tive disability or restraint,” as that term is normally understood. While petitioners have been prohibited from further participating in the banking industry, this is “certainly nothing approaching the 'infamous punishment’ of imprisonment.” Flemming v. Nestor, 363 U. S. 603, 617 (1960). Third, neither sanction comes into play “only” on a finding of scienter. The provisions under which the money penalties were imposed, 12 U. S. C. §§ 93(b) and 504, allow for the assessment of a penalty against any person “who violates” any of the underlying banking statutes, without regard to the violator’s state of mind. “Good faith” is considered by OCC in determining the amount of the penalty to be imposed, § 93(b)(2), but a penalty ean be imposed even in the absence of bad faith. The fact that petitioners’ “good faith” was considered in determining the amount of the penalty to be imposed in this case is irrelevant, as we look only'to “the statute on its face” to determine whether a penalty is criminal in nature. Kennedy, 372 U. S., at 169. Similarly, while debarment may be imposed for a “willful” disregard “for the safety or soundness of [an] insured depository institution,” willfulness is not a prerequisite to debarment; it is sufficient that the disregard for the safety and soundness of the institution was “continuing." § 1818(e)(1)(C)(ii).

Fourth, the conduct for which OCC sanctions are imposed may also be criminal (and in this ease formed the basis for petitioners’ indictments). This fact is insufficient to render the money penalties and debarment sanctions criminally punitive, Ursery, 518 U. S., at 292, particularly in the double jeopardy context, see United States v. Dixon, 509 U. S. 688, 704 (1993) (rejecting “same-conduct” test for double jeopardy purposes).

Finally, we recognize that the imposition of both money penalties and debarment sanctions will deter others from emulating petitioners’ conduct, a traditional goal of criminal punishment. But the mere presence of this purpose is insufficient to render a sanction criminal, as deterrence “may serve civil as well as criminal goals.” Ursery, supra, at 292; see also Bennis v. Michigan, 516 U. S. 442, 452 (1996) (“[Forfeiture . . . serves a deterrent purpose distinct from any punitive purpose”). For example, the sanctions at issue here, while intended to deter future wrongdoing, also serve to promote the stability of the banking industry. To hold that the mere presence of a deterrent purpose renders such sanctions “criminal” for double jeopardy purposes would severely undermine the Government’s ability to engage in effective regulation of institutions sueh as banks.

In sum, there simply is very little showing, to say nothing of the “clearest proof ” required by Ward, that OCC money penalties and debarment sanctions are criminal.. The Double Jeopardy Clause is therefore no obstacle to their trial on the pending indictments, and it may proceed.

The judgment of the Court of Appeals for the Tenth Circuit is accordingly

Affirmed.

Justice Scalia,

with whom Justice Thomas joins,

concurring.

I wholly agree with the Court’s conclusion that Halper’s test for whether a sanction is “punitive” was ill considered and unworkable. Ante, at 101-102. Indeed, it was the absurdity of trying to force the Halper analysis upon the Montana tax scheme at issue in Department of Revenue of Mont v. Kurth Ranch, 511 U. S. 767 (1994), that prompted me to focus on the prior question whether the Double Jeopardy Clause even contains a multiple-punishments prong. See id., at 802-803. That evaluation led me to the conclusion that the Double Jeopardy Clause prohibits successive prosecution, not successive punishment, and that we should therefore “put the Halper genie back in the bottle.” Id., at 803-805. Today’s opinion uses a somewhat different bottle than I would, returning the law to its state immediately prior to Halper — which acknowledged a constitutional prohibition of multiple punishments but required successive criminal prosecutions. So long as that requirement is maintained, our multiple-punishments jurisprudence essentially duplicates what I believe to be the correct double jeopardy law, and will be as harmless in the future as it was pre-Halper. Accordingly, I am pleased to concur.

Justice Stevens,

concurring in the judgment.

The maxim that “hard cases make bad law” may also apply to easy eases. As I shall explain, this case could easily be decided by the straightforward application of well-established precedent. Neither such a disposition, nor anything in the opinion of the Court of Appeals, would require a reexamination of the central holding in United States v. Halper, 490 U. S. 435 (1989), or of the language used in that unanimous opinion. Any proper concern about the danger that that opinion might be interpreted too expansively would be more appropriately addressed in a ease that was either incorrectly decided or that at least raised a close or difficult question. In my judgment it is most unwise to use this case as a vehicle for the substitution of a rather open-ended attempt to define the concept of punishment for the portions of the opinion in Halper that trouble the Court. Accordingly, while I have no hesitation about concurring in the Court’s judgment, I do not join its opinion.

As is evident from the first sentence of the Court’s opinion, this is an extremely easy case. It has been settled since the decision in Blockburger v. United States, 284 U. S. 299 (1932), that the Double Jeopardy Clause is not implicated simply because a criminal charge involves “essentially the same conduct” for which a defendant has previously been punished. See, e.g., United States v. Dixon, 509 U.S. 688, 696, 704 (1993); Rutledge v. United States, 517 U. S. 292, 297 (1996). Unless a seeond proceeding involves the “same offense” as the first, there is no double jeopardy. The two proceedings at issue here involved different offenses that were not even arguably the same under Blockburger.

Under Blockburger’s “same-elements” test, two provisions are not the “same offense” if each contains an element not included in the other. Dixon, 509 U. S., at 696. The penalties imposed on the petitioners in 1989 were based on violations of 12 U. S. C. §§ 84(a)(1) and 375b (1982 ed.) and 12 CFR §§ 31.2(b) and 215.4(b) (1986). Each of these provisions required proof that extensions of credit exceeding certain limits were made, but did not require proof of an intent to defraud or the making of any false entries in bank records. The 1992 indictment charged violations of 18 U. S. C. §§ 371, 656, and 1005 and alleged a conspiracy to willfully misapply bank funds and to make false banking entries, as well as the making of such entries; none of those charges required proof that any lending limit had been exceeded.

Thus, I think it would a ease double jeopardy claim that would be any easier to decide than this one.

II

The Court not only ignores the most obvious and straightforward basis for affirming the judgment of the Court of Appeals; it also has nothing to say about that court’s explanation of why the reasoning in our opinion in United States v. Halper supported a rejection of petitioners’ double jeopardy claim. Instead of granting certiorari to consider a possible error in the Court of Appeals’ reasoning or its judgment, the Court candidly acknowledges that it was motivated by “concerns about the wide variety of novel double jeopardy claims spawned in the wake of Halper” Ante, at 98.

The Court’s opinion seriously of those concerns. Its list of eases illustrating the problem cites seven cases decided in the last two years. Ante, at 98, n. 4. In every one of those cases, however, the Court of Appeals rejected the double jeopardy claim. The only ruling by any court favorable to any of these “novel” claims was a preliminary injunction entered by a District Court postponing implementation of New Jersey’s novel, controversial “Megan’s Law.” E. B. v. Poritz, 914 F. Supp. 85 (NJ 1996), rev’d, E. B. v. Verniero, 119 F. 3d 1077 (CA3 1997). Thus, the eases cited by the Court surely do not indicate any need to revisit Halper.

The Court also claims that two practical flaws in the Halper opinion warrant a prompt adjustment in our double jeopardy jurisprudence. First, the Court asserts that Halper’s test is unworkable because it permits only successive sanctions that are “solely” remedial. Ante, at 102. Though portions of Halper were consistent with such a reading, the express statement of its holding was much narrower. Of greater importance, the Court has since clarified this very point:

“Whether a particular sanction ‘cannot fairly be said solely to serve a remedial purpose’ is an inquiry radically different from that we have traditionally employed in order to determine whether, as a categorical matter, a civil sanction is subject to the Double Jeopardy Clause. Yet nowhere in Halper does the Court purport to make such a sweeping change in the law, instead emphasizing repeatedly the narrow scope of its decision.” United States v. Ursery, 518 U. S. 267, 285, n. 2 (1996).

Having just recently emphasized Halper’s narrow rule in Ursery, it is quite odd for the Court now to suggest that its overbreadth has created some sort of judicial emergency.

Second, the Court expresses the concern that when a civil proceeding follows a criminal punishment, Halper would require a court to wait until judgment is imposed in the successive proceeding before deciding whether the latter sanction violates double jeopardy. Ante, at 102. That concern is wholly absent in this ease, however, because the criminal indictment followed administrative sanctions. There can be no doubt that any fine or sentence imposed on the criminal counts would be “punishment.” If the indictment charged the same offense for which punishment had already been imposed, the prosecution itself would be barred by the Double Jeopardy Clause no matter how minor the criminal sanction sought in the second proceeding.

Thus, the concerns that the Court identifies merely emphasize the accuracy of the comment in Halper itself that it announced “a rule for the rare ease .. . where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused.” 490 U. S., at 449.

Ill

Despite my disagreement with the Court’s decision to use this case as a rather lame excuse for writing a gratuitous essay about punishment, I do agree with its reaffirmation of the central holding of Halper and Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767 (1994). Both of those cases held that sanctions imposed in civil proceedings constituted “punishment” barred by the Double Jeopardy Clause. Those holdings reconfirmed the settled proposition that the Government cannot use the “civil” label to escape entirely the Double Jeopardy Clause’s command, as we have recognized for at least six decades. See United States v. La Franca, 282 U. S. 568, 574-575 (1931); Helvering v. Mitchell, 303 U. S. 391, 398-399 (1938). That proposition is extremely important because the States and the Federal Government have an enormous array of civil administrative sanctions at their disposal that are capable of being used to punish persons repeatedly for the same offense, violating the bedrock double jeopardy principle of finality. “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, 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 ....” Green v. United States, 355 U. S. 184, 187 (1957). However the Court chooses to recalibrate the meaning of punishment for double jeopardy purposes, our doctrine still limits multiple sanctions of the rare sort contemplated by Halper.

IV

Today, as it did in Halper itself, the Court relies on the sort of multifactor approach to the definition of punishment that we used in Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963), to identify situations in which a civil sanction is punitive. Whether the Court’s reformulation of Halper’s test will actually affect the outcome of any cases remains to be seen. Perhaps it will not, since the Court recommends consideration of whether a sanction’s “ ‘operation will promote the traditional aims of punishment — retribution and deterrence,’” and “‘whether it appears excessive in relation to the alternative [nonpunitive] purpose assigned.’” Ante, at 99-100 (quoting Kennedy, 372 U. S., at 168-169). Those factors look awfully similar to the reasoning in Halper, and while we are told that they are never by themselves disposi-tive, ante, at 101, they should be capable of tipping the balance in extreme eases. The danger in changing approaches midstream, rather than refining our established approach on an incremental basis, is that the Government and lower courts may be unduly influenced by the Court’s new attitude, rather than its specific prescribed test.

It is, of course, entirely appropriate for the Court to perform a lawmaking function as a necessary incident to its Article III responsibility for the decision of “Cases” and “Controversies.” In my judgment, however, a desire to reshape the law does not provide a legitimate basis for issuing what amounts to little more than an advisory opinion that, at best, will have the precedential value of pure dictum and may in time unduly restrict the protections of the Double Jeopardy Clause. “It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” Burton v. United States, 196 U. S. 283, 295 (1905); see also Ashwander v. TVA, 297 U. S. 288, 345-348 (1936) (Brandéis, J., concurring). Accordingly, while I concur in the judgment of affirmance, I do not join the Court’s opinion.

Justice Soutee,

concurring in the judgment.

I concur in the Court’s judgment and with much of its opinion. As the Court notes, ante, at 102, we have already recognized that Halper’s statements of standards for identifying what is criminally punitive under the Fifth Amendment needed revision, United States v. Ursery, 518 U. S. 267, 284-285, n. 2 (1996), and there is obvious sense in employing common criteria to point up the criminal nature of a statute for purposes of both the Fifth and Sixth Amendments. See United States v. One Assortment of 89 Firearms, 465 U. S. 354, 362-366 (1984); United States v. Ward, 448 U. S. 242, 248-249 (1980); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963); see also Ward, supra, at 254 (“[I]t would be quite anomalous to hold that [the statute] created a criminal penalty for the purposes of the Self-Incrimination Clause but a civil penalty for all other purposes”).

Applying the Court’s Kennedy-Ward criteria leads me directly to the conclusion of Justice Stevens’s opinion eon-earring in the judgment. The fifth criterion calls for a court to determine whether “the behavior to which [the penalty] applies is already a crime.” Kennedy v. Mendoza-Martinez, supra, at 168-169. 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 as originally stated in Blockburger v. United States, 284 U. S. 299 (1932). See United States v. Dixon, 509 U. S. 688 (1993). When application of Block-burger under Kennedy-Ward shows that a successive prosecution is permissible even on the assumption that each penalty is criminal, the issue is necessarily settled. Such is the ease here, as Justice Stevens explains. See ante, at 107 (opinion concurring in judgment). Applying the Kennedy-Ward criteria, therefore, I would stop just where Justice Stevens stops.

My acceptance of the Kennedy-Ward analytical scheme is subject to caveats, however. As the Court points out, under Ward, once it is understood that a legislature intended a penalty to be treated as civil in character, that penalty may be held criminal for Fifth Amendment purposes (and, for like reasons, under the Sixth Amendment) only on the “clearest proof” of its essentially criminal proportions. While there are good and historically grounded reasons for using that phrase to impose a substantial burden on anyone claiming that an apparently civil penalty is in truth criminal, what may be clear enough to be “clearest” is necessarily dependent on context, as indicated by the cases relied on as authority for adopting the standard in Ward. Flemming v. Nestor, 363 U. S. 603 (1960), used the quoted language to describe the burden of persuasion necessary to demonstrate a criminal and punitive purpose unsupported by “objective manifestations” of legislative intent. Id., at 617. Rex Trailer Co. v. United States, 350 U. S. 148, 154 (1956), cited as secondary authority, required a defendant to show that a “measure of recovery” was “unreasonable or excessive” before “what was clearly intended as a civil remedy [would be treated as] a criminal penalty.” One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 237 (1972) (per curiam), cited Rex Trailer for that standard and relied on the case as exemplifying a provision for liquidated damages as distinct from criminal penalty. I read the requisite “clearest proof” of criminal character, then, to be a function of the strength of the countervailing indications of civil nature (including the presumption of constitutionality enjoyed by an ostensibly civil statute making no provision for the safeguards guaranteed to criminal defendants. See Flemming, supra, at 617).

I add the further caution, to be wary of reading est 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. See United States v. Halper, 490 U. S. 435, 449 (1989) (“What we announce now is a rule for the rare case”). We have noted elsewhere the expanding use of ostensibly civil forfeitures and penalties under the exigencies of the current drug problems, see Ursery, supra, at 300 (Stevens, J., concurring in judgment in part and dissenting in part) (“In recent years, both Congress and the state legislatures have armed their law enforcement authorities with new powers to forfeit property that vastly exceed their traditional tools”); United States v. James Daniel Good Real Property, 510 U. S. 43, 81-82 (1993) (Thomas, J., concurring in part and dissenting in part), a development doubtless spurred by the increasingly inviting prospect of its profit to the Government. See id., at 56, n. 2 (opinion of the Court) (describing the Government's financial stake in drug forfeiture); see also id., at 56 (citing Harmelin v. Michigan, 501 U. S. 957, 979, n. 9 (1991) (opinion of Scalia, J.) for the proposition that “it makes sense to scrutinize governmental action more closely when the State stands to benefit”). Hence, on the infrequency of “clearest proof,” history may not be repetitive.

Justice Breyer,

with whom Justice Ginsburg joins,

concurring in the judgment.

I agree with the majority and with Justice Souter that United States v. Halper, 490 U. S. 435 (1989), does not provide proper guidance for distinguishing between criminal and noncriminal sanctions and proceedings. I also agree that United States v. Ward, 448 U. S. 242, 248 (1980), and Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963), set forth the proper approach.

I do not join the Court’s opinion, however, because I disagree with its reasoning in two respects. First, unlike the Court I would not say that “‘only the clearest proof will “transform” into a criminal punishment what a legislature calls a “civil remedy.” Ante, at 100. I understand that the Court has taken this language from earlier cases. See Ward, supra, at 249. But the limitation that the language suggests is not consistent with what the Court has actually done. Rather, in fact if not in theory, the Court has simply applied factors of the Kennedy variety to the matter at hand. In Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767 (1994), for example, the Court held that the collection of a state tax imposed on the possession and storage of drugs was “the functional equivalent of a successive criminal prosecution” because, among other things, the tax was “remarkably high”; it had “an obvious deterrent purpose”; it was “conditioned on the commission of a crime”; it was “exacted only after the taxpayer ha[d] been arrested for the precise conduct that gives rise to the tax obligation”; its alternative function of raising revenue could be equally well served by increasing the fine imposed on the activity; and it departed radically from “normal revenue laws” by taxing contraband goods perhaps destroyed before the tax was imposed. Id., at 781-784. This reasoning tracks the nonexclusive list of factors set forth in Kennedy, and it is, I believe, the proper approach. The “clearest proof” language is consequently misleading, and I would consign it to the same legal limbo where Halper now rests.

Second, I would not decide now that a ate a statute only “ ‘on its face,’ ” ante, at 100 (quoting Kennedy, supra, at 169), rather than “assessing the character of the actual sanctions imposed,” Halper, supra, at 447; ante, at 101. Halper involvéd an ordinary civil-fine statute that as normally applied would not have created any “double jeopardy” problem. It was not the statute itself, but rather the disproportionate relation between fine and conduct as the statute was applied in the individual case that led this Court, unanimously, to find that the “civil penalty” was, in those circumstances, a second “punishment” that constituted double jeopardy. See 490 U. S., at 439, 452 (finding that $130,000 penalty was “sufficiently disproportionate” to $585 loss plus approximately $16,000 in Government expenses caused by Halper’s fraud to constitute a second punishment in violation of double jeopardy). Of course, the Court in Halper might have reached the same result through application of the constitutional prohibition of “excessive fines.” See ante, at 103; Alexander v. United States, 509 U. S. 544, 558-559 (1993); Halper, supra, at 449 (emphasizing that Halper was “the rare case” in which there was an “overwhelmingly disproportionate” fine). But that is not what the Court there said. And nothing in the majority’s opinion today explains why we should abandon this aspect of Hamper's holding. Indeed, in context, the language of Kennedy that suggests that the Court should consider the statute on its face does not suggest that there may not be further analysis of a penalty as it is applied in a particular case. See 372 U. S., at 169. Most of the lower court confusion and criticism of Halper appears to have focused on the problem of characterizing — by examining the face of the statute — the purposes of a civil penalty as punishment, not on the application of double jeopardy analysis to the penalties that are imposed in particular cases. It seems to me quite possible that a statute that provides for a punishment that normally is civil in nature could nonetheless amount to a criminal punishment as applied in special circumstances. And I would not now hold to the contrary.

That said, an analysis of the Kennedy factors still leads me to the conclusion that the statutory penalty in this case is not on its face a criminal penalty. Nor, in my view, does the application of the statute to the petitioners in this ease amount to criminal punishment. I therefore concur in the judgment.

       Tipton and Hammon are two very small towns in western Oklahoma.

       The consent orders also contained language providing that they did not constitute "a waiver of any right, power, or authority of any other representatives of the United States, or agencies thereof, to bring other actions deemed appropriate.” App. to Pet. for Cert. 133a, 143a, 138a. The Court of Appeals ultimately held that this provision was not a waiver of petitioners’ double jeopardy claim. 14 F. 3d 536, 539 (CA10 1994).

       Only petitioner Raekley was indicted for making false bank entries in violation of 18 U. S. C. § 1005.

         E. g., Zukas v. Hinson, 1997 WL 623648 (CA11, Oet. 21, 1997) (challenge to FAA revocation of a commercial pilot’s license as violative of double jeopardy); E. B. v. Verniero, 119 F. 3d 1077 (CA3 1997) (challenge to “Megan’s Law” as violative of double jeopardy); Jones v. Securities & Exchange Comm’n, 115 F. 3d 1173 (CA4 1997) (challenge to SEC debarment proceeding as violative of double jeopardy); United States v. Rice, 109 F. 3d 151 (CA3 1997) (challenge to criminal drug prosecution following general military discharge for same conduct as violative of double jeopardy); United States v. Hatfield, 108 F. 3d 67 (CA4 1997) (challenge to criminal fraud prosecution as foreclosed by previous debarment from Government contracting); Taylor v. Cisneros, 102 F. 3d 1334 (CA3 1996) (challenge to eviction from federally subsidized housing based on guilty plea to possession of drug paraphernalia as violative of double jeopardy); United States v. Galan, 82 F. 3d 639 (CA5) (challenge to prosecution for prison escape following prison disciplinary proceeding as violative of double jeopardy), cert. denied, 519 U. S. 867 (1996).

         In his concurrence, Justice Stevens criticizes us for reexamining our Halper opinion rather than deciding the case on what he believes is the narrower Blockburger grounds. But the question upon which we granted certiorari in this ease is “whether imposition upon petitioners of monetary-fines as in personam civil penalties by the Department of the Treasury, together with other sanctions, is ‘punishment’ for purposes of the Double Jeopardy Clause.” Pet. for Cert. i. It is this question, and not the Blockburger issue, upon which there is a conflict among the Courts of Appeals. Indeed, the Court of Appeals for the Tenth Circuit in this case did not even pass upon the Bloekbwrger question, finding it unnecessary to do so. 92 F. 3d, at 1028, n. 3.

       In Kurth Ranch, we held that the presence a purpose effect is not dispositive of the double jeopardy question. 511 U. S., at 781. Rather, we applied a Kennedy-like test, see 511 U. S., at 780-783, before concluding that Montana’s dangerous drug tax was “the functional equivalent of a successive criminal prosecution,” id., at 784. Similarly, in Ursery, we rejected the notion that civil in rem forfeitures violate the Double Jeopardy Clause. 518 U. S., at 270-271. We upheld such forfeitures, relying on the historical support for the notion that such forfeitures are civil and thus do not implicate double jeopardy. Id., at 292.

       “We... hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” United States v. Halper, 490 U. S. 435, 448-449 (1989).

       Title 12 U. S. C. § 84(a)(1) prohibits total loans and extensions of credit by a national banking association to any one borrower from exceeding 15 percent of the bank’s unimpaired capital and surplus. Title 12 U. S. C. § 375b and 12 CFR §§ 31.2(b) and 215.4(b) (1986) impose similar lending limits on loans to bank officers and other insiders.

       Petitioners challenge this conclusion by relying on dicta from Kansas v. Hendricks, 521 U. S. 346, 370 (1997). There, after rejecting a double jeopardy challenge to Kansas’ Sexually Violent Predator Act, the Court added: “The Blockburger test, however, simply does not apply outside of the successive prosecution context.” Ibid. This statement, pure dictum, was unsupported by any authority and contradicts the earlier ruling in United States v. Dixon, 509 U. S. 688, 704-705 (1993), that the Blockburger analysis applies to claims of successive punishment as well as successive prosecution. See also 509 U. S., at 745-746 (Souter, J., concurring in judgment in part and dissenting in part) (explaining why the Blockburger test applies in the multiple punishments context). I cannot imagine a good reason why Blockburger should not apply here.

       Other recent double jeopardy decisions have also recognized that double jeopardy protection is not limited to multiple prosecutions. See United States v. Ursery, 518 U. S. 267, 273 (1996); Kansas v. Hendricks, 521 U. S., at 369. Otherwise, it would have been totally unnecessary to determine whether the civil forfeitures in Ursery and the involuntary civil commitment in Hendricks imposed “punishment” for double jeopardy purposes, for neither sanction was implemented via criminal proceedings.


source: Caselaw Access Project

author: Justice Stevens Justice Scalia,

license: Public Domain

text:
    KALINA v. FLETCHER
    No. 96-792.
    Argued October 7, 1997
    Decided December 10, 1997

      Stevens, J., delivered the opinion for a unanimous Court. Scalia, J., filed a concurring opinion, in whieh Thomas, J., joined, post, p. 131.

      Norm Maleng argued the cause for petitioner. With him on the briefs were Michael C. Duggan and John W. Cobb.

      Patricia A. Millett argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor General Waxman, Deputy Assistant Attorney General Preston, Barbara L. Herwig, and Peter R. Maier.

      Timothy K. Ford argued the cause for respondent. With him on the brief were Robert S. Mahler and Daniel Hoyt Smith.

       Briefs of amici curiae urging reversal were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Andrew H. Baida and John B. Howard, Jr., Assistant Attorneys General, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama; Bruce M. Botelho of Alaska, Grant Woods of Arizona, Daniel E. Lungren of California, Robert A Butter-worth of Florida, Calvin E. Holloway, Sr., of Guam, Margery S. Bronster of Hawaii, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Steven M. Houran of New Hampshire, Dennis C. Vacco of New York, Heidi Heit-kamp of North Dakota, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Mark Barnett of South Dakota, J. Wallace Malley, Jr., of Vermont, Julio A Brady of the Virgin Islands, Christine O. Gregoire of Washington, Darrell V. McGrow, Jr., of West Virginia, James E. Doyle of Wisconsin, and William U. Hill of Wyoming; for the Thirty-Nine Counties of the State of Washington by Russell D. Hauge, Pamela Beth Loginsky, David Bruneau, Arthur Curtis, Allen C. Nielson, David Skeen, Norm Maleng, Jeremy Randolf John Ladenburg, James Sweetser, James L. Nagle, David S. McEachran, James Kaufman, and Jeffrey C. Sullivan; for the National Association of Counties et al. by Richard Ruda and James I. Crowley; and for the National District Attorneys’ Association et al. by Gil Garcetti and Roderick W. Leonard.

   Justice Stevens

delivered the opinion of the Court.

The question presented is whether 42 U. S. C. § 1988 creates a damages remedy against a prosecutor for making false statements of faet in an affidavit supporting an application for an arrest warrant, or whether, as she contends, such conduct is protected by “the doctrine of absolute prosecutorial immunity.”

I

Petitioner is a deputy prosecuting attorney for King County, Washington. Following customary practice, on December 14, 1992, she commenced a criminal proceeding against respondent by filing three documents in the King County Superior Court. Two of those documents — an information charging respondent with burglary and a motion for an arrest warrant — were unsworn pleadings. The burglary charge was based on an alleged theft of computer equipment from a school.

Washington Criminal Rules require that an arrest warrant be supported by an affidavit or “sworn testimony establishing the grounds for issuing the warrant.” To satisfy that requirement, petitioner supported her motion with a third document — a “Certification for Determination of Probable Cause” — that summarized the evidence supporting the charge. She personally vouched for the truth of the facts set forth in the certification under penalty of perjury. Based on petitioner’s certification, the trial court found probable cause and ordered that an arrest warrant be issued.

Petitioner’s certification contained two inaccurate factual statements. After noting that respondent’s fingerprints had been found on a glass partition in the school, petitioner stated that respondent had “never been associated with the school in any manner and did not have permission to enter the school or to take any property.” In fact, he had installed partitions on the premises and was authorized to enter the school. She also stated that an employee of an electronics store had identified respondent “from a photo montage” as the person who had asked for an appraisal of a computer stolen from the school. In fact, the employee did not identify respondent.

Respondent was arrested and spent a day in jail. About a month later, the charges against him were dismissed on the prosecutor’s motion.

II

Respondent brought this action under Rev. Stat. § 1979, as amended, 42 U. S. C. § 1988, seeking damages from petitioner based on her alleged violation of his constitutional right to be free from unreasonable seizures. In determining immunity, we accept the allegations of respondent’s complaint as true. See Buckley v. Fitzsimmons, 509 U. S. 259, 261 (1993). Respondent’s complaint focuses on the false statements made by petitioner in the certification. Petitioner moved for summary judgment on the ground that the. three documents that she filed to commence the criminal proceedings- and to procure the arrest warrant were protected by “the doctrine of absolute prosecutorial immunity.” The District Court denied the motion, holding that she was not entitled to absolute immunity and that whether qualified immunity would apply was a question of fact. The Court of Appeals for the Ninth Circuit affirmed.

The Ninth Circuit first noted that under our decision in Malley v. Briggs, 475 U. S. 335 (1986), “a police officer who secures an arrest warrant without probable cause cannot assert an absolute immunity defense,” and then observed that petitioner’s “actions in writing, signing and filing the declaration for an arrest warrant” were “virtually identical to the police officer’s actions in Malley.” 93 F. 3d 653, 655-656 (1996). Relying on the functional approach endorsed in Buckley v. Fitzsimmons, the Court of Appeals concluded that “it would be ‘incongruous’ to expose police to potential liability while protecting prosecutors for the same act.” 93 F. 3d, at 656.

The Court of Appeals acknowledged that the Sixth Circuit had reached a different result in Joseph v. Patterson, 795 F. 2d 549, 555 (1986), cert. denied, 481 U. S. 1023 (1987), a case that predated our decision in Buckley. Because we have never squarely addressed the question whether a prosecutor may be held liable for conduct in obtaining an arrest warrant, we granted certiorari to resolve the conflict. 519 U. S. 1148 (1997). We now affirm.

J-H HH hH

Section 1983 is a codification of §1 of the Civil Rights Act of 1871. The text of the statute purports to create a damages remedy against every state official for the violation of any person’s federal constitutional or statutory rights. The coverage of the statute is thus broader than the preexisting common law of torts. Wé have nevertheless recognized that Congress intended the statute to be construed in the light of common-law principles that were well settled at the time of its enactment. See Tenney v. Brandhove, 341 U. S. 367 (1951); Briscoe v. LaHue, 460 U. S. 325, 330 (1983). Thus, we have examined common-law doctrine when identifying both the elements of the cause of action and the defenses available to state actors.

In Imbler v. Pachtman, 424 U. S. 409 (1976), we held that a former prisoner whose conviction had been set aside in collateral proceedings could not maintain a § 1983 action against the prosecutor who had litigated the charges against him. Relying in part on common-law precedent, and perhaps even more importantly on the policy considerations underlying that precedent, we concluded that “a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution” was not amenable to suit under § 1983. Id., at 410.

Liberally construed, Imbler’s complaint included not only a charge that the prosecution had been wrongfully commenced, but also a charge that false testimony had been offered as well as a charge that exculpatory evidence had been suppressed. His constitutional claims were thus broader than any specific common-law antecedent. Nevertheless, relying on common-law decisions providing prosecutors with absolute immunity from tort actions based on claims that the decision to prosecute was malicious and unsupported by probable cause, as well as from actions for defamation based on statements made during trial, we concluded that the statute should be construed to provide an analogous defense against the claims asserted by Imbler, The policy considerations that justified the common-law decisions affording absolute immunity to prosecutors when performing traditional functions applied equally to statutory claims based on the conduct of the same functions.

Those considerations included both the interest in protecting the prosecutor from harassing litigation that would divert his time and attention from his official duties and the interest in enabling him to exercise independent judgment when “deciding which suits to bring and in conducting them in court.” Id., at 424. The former interest would lend support to an immunity from all litigation against the occupant of the office whereas the'latter is applicable only when the official is performing functions that require the exercise of prosecutorial discretion. Our later eases have made it clear that it is the interest in protecting the proper functioning of the office, rather than the interest in protecting its occupant, that is of primary importance.

In Imbler, we did not attempt to define the outer limits of the prosecutor’s absolute immunity, but we did recognize that our rationale would not encompass some of his official activities. Thus, while we concluded that Pachtman’s “activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force,” id., at 430, we put to one side “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate,” id., at 430-431.

Subsequent cases have confirmed the importance to the judicial process of protecting the prosecutor when serving as an advocate in judicial proceedings. Thus, in Burns v. Reed, 500 U. S. 478 (1991), after noting the consensus among the Courts of Appeals concerning prosecutorial conduct before grand juries, id., at 490, n. 6, we held that the prosecutor’s appearance in court in support of an application for a search warrant and the presentation of evidence at that hearing were protected by absolute immunity, id., at 492. And in Buckley, we categorically stated that “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.” 509 U. S., at 278.

In both of those cases, we available when the prosecutor was performing a different function. In Burns, the provision of legal advice to the police during their pretrial investigation of the facts was protected only by qualified, rather than absolute, immunity. 500 U. S., at 492-496. Similarly, in Buckley, the prosecutor was not acting as an advocate either when he held a press conference, 509 U. S., at 276-278, or when he allegedly fabricated evidence concerning an unsolved crime. With reference to the latter holding, we explained:

“There is a difference between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is ‘neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.’ Hampton v. Chicago, 484 F. 2d 602, 608 (CA7 1973) (internal quotation marks omitted), cert. denied, 415 U. S. 917 (1974). Thus, if a prosecutor plans and executes a raid on a suspected weapons cache, he ‘has no greater claim to complete immunity than activities of police officers allegedly acting under his direction.’ 484 F. 2d, at 608-609.” Id., at 273-274.

These eases make it clear that the absolute immunity that protects the prosecutor’s role as an advocate is not grounded in any special “esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself.” Malley, 475 U. S., at 342. Thus, in determining immunity, we examine “the nature of the function performed, not the identity of the actor who performed it.” Forrester v. White, 484 U. S. 219, 229 (1988). This point is perhaps best illustrated by the determination that the senior law enforcement official in the Nation — the Attorney General of the United States — is protected only by qualified, rather than absolute, immunity when engaged in the performance of national defense functions rather than prosecutorial functions. Mitchell v. Forsyth, 472 U. S. 511 (1985).

In Malley we considered, and rejected, two theories on which immunity might have been accorded to a police officer who had caused an unconstitutional arrest by presenting a judge with a complaint and supporting affidavit that failed to establish probable cause. His first argument, that his function was comparable to that of a complaining witness, actually militated against his claim because such witnesses were subject to suit at common law.

His second argument rested on the similarity between his conduct and the functions often performed by prosecutors. As we explained:

“As an alternative ground for claiming absolute immunity, petitioner draws an analogy between an officer requesting a warrant and a prosecutor who asks a grand jury to indict a suspect. Like the prosecutor, petitioner argues, the officer must exercise a discretionary judgment based on the evidence before him, and like the prosecutor, the officer may not exercise his best judgment if the threat of retaliatory lawsuits hangs over him. Thus, petitioner urges us to read § 1983 as giving the officer the same absolute immunity enjoyed by the prosecutor. Cf. Imbler v. Pachtman, 424 U. S. 409 (1976).
“. . . We intend no disrespect to the officer applying for a warrant by observing that his action, while a vital part of the administration of criminal justice, is further removed from the judicial phase of criminal proceedings than the act of a prosecutor in seeking an indictment. Furthermore, petitioner’s analogy, while it has some force, does not take account of the fact that the prosecutor’s act in seeking an indictment is but the first step in the process of seeking a conviction. Exposing the prosecutor to liability for the initial phase of his prosecu-torial work could interfere with his exercise of independent judgment at every phase of his work, since the prosecutor might come to see later decisions in terms of their effect on his potential liability. Thus, we shield the prosecutor seeking an indictment because any lesser immunity could impair the performance of a central actor in the judicial process.” 475 U. S., at 341-343.

These eases make it quite clear that petitioner’s activities in connection with the preparation and filing of two of the three charging documents — the information and the motion for an arrest warrant — are protected by absolute immunity. Indeed, except for her act in personally attesting to the truth of the averments in the certification, it seems equally clear that the preparation and filing of the third document in the package was part of the advocate’s function as well. The critical question, however, is whether she was acting as a complaining witness rather than a lawyer when she executed the certification “[ujnder penalty of perjury.” We now turn to that question.

IV

The Fourth Amendment requires that arrest warrants be based “upon probable cause, supported by Oath or affirmation” — a requirement that may be satisfied by an indictment returned by a grand jury, but not by the mere filing of criminal charges in an unsworn information signed by the prosecutor. Gerstein v. Pugh, 420 U. S. 108, 117 (1975); see also Coolidge v. New Hampshire, 403 U. S. 443 (1971). Accordingly, since most prosecutions in Washington are commenced by information, Washington law requires, in compliance with the constitutional command, that an arrest warrant be supported by either an affidavit “or sworn testimony establishing the grounds for issuing the warrant.” The “Certification for Determination of Probable Cause” executed by petitioner was designed to satisfy those requirements.

Although the law required that document to be sworn or certified under penalty of perjury, neither federal nor state law made it necessary for the prosecutor to make that certification. In doing so, petitioner performed an act that any competent witness might have performed. . Even if she may have1 been following a practice that was routinely employed by her colleagues and predecessors in King County, Washington, that practice is surely not prevalent in other parts of the country and is not even mandated by law in King County. Neither petitioner nor amici argue that prosecutors routinely follow the King County practice. Indeed, tradition, as well as the ethics of our profession, generally instruct counsel to avoid the risks associated with participating as both advocate and witness in the same proceeding.

Nevertheless, petitioner argues that the execution of the certificate was just one incident in a presentation that, viewed as a whole, was the work of an advocate and was integral to the initiation of the prosecution. That characterization is appropriate for her drafting of the certification, her determination that the evidence was sufficiently strong to justify a probable-cause finding, her decision to file charges, and her presentation of the information and the motion to the court. Each of those matters involved the exercise of professional judgment; indeed, even the selection of the particular facts to include in the certification to provide the evidentiary support for the finding of probable cause required the exercise of the judgment of the advocate. But that judgment could not affect the truth or falsity of the factual statements themselves. Testifying about facts is the function of the witness, not of the lawyer. No matter how brief or succinct it may be, the evidentiary component of an application for an arrest warrant is a distinct and essential predicate for a finding of probable cause. Even when the person who makes the constitutionally required “Oath or affirmation” is a lawyer, the only function that she performs in giving sworn testimony is that of a witness.

Finally, petitioner argues that denying her absolute immunity will have a “chilling effect” on prosecutors in the administration of justice. We are not persuaded.

It may well be true that prosecutors in King County may abandon the practice of routinely attesting to the facts recited in a “Certification for Determination of Probable Cause” and pattern their procedures after those employed in other parts of the Nation. Petitioner presents no evidence that the administration of justice is harmed where the King County practice is not followed. In other respects, however, her argument addresses concerns that are not affected by our decision because we merely hold that § 1983 may provide a remedy for respondent insofar as petitioner performed the function of a complaining witness. We do not depart from our prior cases that have recognized that the prosecutor is fully protected by absolute immunity when performing the traditional functions of an advocate. See Imbler, 424 U. S., at 431; Buckley, 509 U. S., at 273.

Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is

Affirmed.

Justice Scalia,

with whom Justice Thomas joins,

concurring.

I agree that Ms. Kalina performed essentially the same “function” in the criminal process as the police officers in Malley v. Briggs, 475 U. S. 335 (1986), and so I join the opinion of the Court. I write separately because it would be a shame if our opinions did not reflect the awareness that our “functional” approach to 42 U. S. C. § 1983 immunity questions has produced some curious inversions of the common law as it existed in 1871, when § 1988 was enacted. A conscientious prosecutor reading our cases should now conclude that there is absolute immunity for the decision to seek an arrest warrant after filing an information, but only qualified immunity for testimony as a witness in support of that warrant. The common-law rule was, in a sense, exactly opposite.

There was, of course, no such thing as absolute prosecuto-rial immunity when §1983 was enacted. (Indeed, as the Court points out, ante, at 124, n. 11, there generally was no such thing as the modern public prosecutor.) The common law recognized a “judicial” immunity, which protected judges, jurors and grand jurors, members of courts-martial, private arbitrators, and various assessors and commissioners. That immunity was absolute, but it extended only to individuals who were charged with resolving disputes between other parties or authoritatively adjudicating private rights. When public officials made discretionary policy decisions that did not involve actual adjudication, they were protected by “quasi-judicial” immunity, which could be defeated by a showing of malice, and hence was more akin to what we now call “qualified,” rather than absolute, immunity. I continue to believe that “prosecutorial functions, had- they existed in their modern form in 1871, would have been considered quasi-judicial.” Burns v. Reed, 500 U. S. 478, 500 (1991) (Scalia, J., concurring in judgment in part and dissenting in part).

That conclusion accords with the common law’s treatment of private prosecutors, who once commonly performed the “function” now delegated to public officials like petitioner. A private citizen who initiated or procured a criminal prosecution could (and can still) be sued for the tort of malicious prosecution — but only if he acted maliciously and without probable cause, and the prosecution ultimately terminated in the defendant’s favor. Thus, although these private prosecutors (sometimes called “complaining witnesses”), since they were not public servants, were not entitled to quasi-judicial immunity, there was a kind of qualified immunity built into the elements of the tort.

The common law also recognized an absolute immunity for statements made in the course of a judicial proceeding and relevant to the matter being tried. That immunity protected both witnesses and attorneys, and could not be defeated even by an allegation that the statement was maliciously false. See, e. g., F. Hilliard, Law of Torts 319 (1866). It was, however, an immunity only against slander and libel actions.

At common law, therefore, Kalina would have been protected by something resembling qualified immunity if she were sued for malicious prosecution. The tortious act in such a case would have been her decision to bring criminal charges against Fletcher, and liability would attach only if Fletcher could prove that the prosecution was malicious, without probable cause, and ultimately unsuccessful. Kali-na’s false statements as a witness in support of the warrant application would not have been an independent actionable tort (although they might have been evidence of malice or initiation in the malicious prosecution suit), because of the absolute privilege protecting such testimony from suits for defamation.

The Court’s long road to what is, superficially at least, the opposite result in today’s opinion, began with Imbler v. Pachtman, 424 U. S. 409 (1976), which granted prosecutors absolute immunity for the “function” of initiating a criminal prosecution. Then, in Briscoe v. LaHue, 460 U. S. 325 (1983), the Court extended a similar absolute immunity to the “function” of serving as a witness. And in Malley v. Briggs, supra, it recognized the additional “functional category” of “complaining witness.” Since this category was entitled to only qualified immunity, the Court overturned a directed verdict in favor of a police officer who had caused the plaintiff to be arrested by presenting a judge with a complaint and an affidavit supporting probable cause. The Court said:

“[Cjomplaining witnesses were not absolutely immune at common law. In 1871, the generally accepted rule was that one who procured the issuance of an arrest warrant by submitting a complaint could be held liable if the complaint was made maliciously and without probable cause. Given malice and the lack of probable cause, the complainant enjoyed no immunity.” Id., at 340-841.

That statement is correct, but it implies a distinction between “witnesses” (absolutely immune) and “complaining witnesses” (at best qualifiedly immune) which has little foundation in the common law of 1871. That law did not recognize two kinds of witness; it recognized two different torts. “In this sense, then, Malley's discussion of complaining witnesses is a feint. The Court was not awaking to a different type of witness ... so much as recognizing a different cause of action — the action for malicious prosecution.” Comment, Police Witness Immunity Under § 1983, 56 U. Chi. L. Rev. 1433, 1454 (1989). By the time Malley was decided, however, the Court’s methodology forced it to express its conclusion in terms of whether the particular “function” at issue would have been entitled to- immunity at common law. See, e. g., Briscoe, supra, at 342 (“[O]ur cases clearly indicate that immunity analysis rests on functional categories”). By inventing “a new functional category: the complaining witness, who (in the Court’s specially-tailored history) was liable at common law and so is liable under § 1983,” Comment, supra, at 1454, Malley moved the Court’s immunity jurisprudence much closer to the results the common law would have achieved.

But no analytical approach based upon “functional analysis” can faith&lly replicate the common law, as is demonstrated in the Court’s opinion today. By describing the subset of actors in the criminal process who are subject to suit as “complaining witnesses,” the Court implies that testifying is the critical event. But a “complaining witness” could be sued for malicious prosecution whether or not he ever provided factual testimony, so long as he had a role in initiating or procuring the prosecution; in that sense, the “witness” in “complaining witness” is misleading. As applied to the police officers in Malley, that confusion was more or less harmless. Here, however, Imbler and Malley collide to produce a rule that stands the common law on its head: Kalina is absolutely immune from any suit challenging her decision to prosecute or seek an arrest warrant, but can be sued if she changes “functional categories” by providing personal testimony to the Court.

Imbler’s principle of absolute prosecutorial immunity, and the “functional categories” approach to immunity questions imposed by eases like Briscoe, make faithful adherence to the common law embodied in § 1983 very difficult. But both Imbler and the “functional” approach are so deeply embedr ded in our § 198.8 jurisprudence that, for reasons of stare de-cisis, I would not abandon them now. Given those concessions, Malley’s distortion of the term “complaining witness” may take us as close to the right answer as we are likely to get. Because Kalina’s conduct clearly places her in that functional category, I agree with the Court that she is not entitled to absolute immunity under our precedents.

       Washington Criminal Rule 2.2(a); see Wash. Rev. Code § 9A.72.085 (1994) (providing, inter alia, that a certification made under penalty of perjury is the equivalent of an affidavit). Accord, King County Local Criminal Rule 2.2.

       App. 20.

       Id, at 19-20.

       Id, at 20.

       Id, at 5.

         Id., at 5-6.

        Id., at 10.

         Id., at 21.

       See Briscoe v. LaHue, 460 U. S. 325, 337 (1983).

       Title 42 U. S. C. § 1983 provides:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....”

       See 424 U. S., at 421-422. The eases that the Court cited were decided after 1871 and granted a broader immunity to public prosecutors than had been available in malicious prosecution actions against private persons who brought prosecutions at early common law. See Savile v. Roberts, 1 Ld. Raym. 374, 91 Eng. Rep. 1147 (K. B. 1699); Hill v. Miles, 9 N. H. 9 (1837); M. Bigelow, Leading Cases on the Law of Torts 193-204 (1875). However, these early cases were decided before the office of public prosecutor in its modern form was common. See Langbein, The Origins of Public Prosecution at Common Law, 17 Am. J. Legal Hist. 313, 316 (1973); Kress, Progress and Prosecution, 423 Annals Am. Acad. Pol. & Soc. Sci. 99, 100-102 (1976); White v. Frank, 855 F. 2d 956, 962 (CA2 1988) (noting that “the availability of the malidous prosecution aetion has been curtailed with the growth of the office of the public prosecutor”). Thus, the Court in Imbler drew guidance both from the. first American cases addressing the availability of malidous prosecution actions against public prosecutors, and perhaps more importantly, from the policy considerations underlying the firmly established common-law rules providing absolute immunity for judges and jurors. See 424 U. S., at 423, n. 20 (discussing similarity in some functions performed by judges, jurors, and prosecutors); Bradley v. Fisher, 13 Wall. 335, 347 (1872); Yates v. Lansing, 5 Johns. 282 (N. Y. 1810) (Kent, C. J.); Note, Civil Liability of a District Attorney for Quasi-Judicial Acts, 73 U. Pa. L. Rev. 300, 303, n. 13 (1925).

       See 424 U. S., at 439-440

       Examining the nature of the function performed is-not a recent innovation. In Ex parte Virginia, 100 U. S. 339, 348 (1880), we stated “[w]hether the act done by [a judge] was judicial or not is to be determined by its character, and not by the character of the agent.” See also Bradley v. Fisher, 13 Wall., at 347 (examining “the character of the act” performed by a judge).

       We noted that:
      “[C]omplaining witnesses were not absolutely immune at common law. In 1871, the generally accepted rule was that one who procured the issuance of an arrest warrant by submitting a complaint could be held liable if the complaint was made maliciously and without probable cause. Given malice and the lack of probable cause, the complainant enjoyed no immunity. The common law thus affords no support for petitioner.” Malley v. Briggs, 475 U. S. 335, 340-341 (1986) (footnote omitted).

       Washington Criminal Rule 2.2(a) (1995) provides:
      “A warrant of arrest must be supported by an affidavit, ... or sworn testimony establishing the grounds for issuing the warrant.... The court must determine there is probable cause ... before issuing the warrant. ”

        Amicus Curiae United States points out that federal prosecutors typically do not personally attest to the facts in an affidavit filed in support of an application for an arrest warrant, but “[finstead a law enforcement agent ordinarily attests to those facts.” Brief 7. Amici Curiae Thirty-Nine Counties of the State of Washington state that local court rules in only two 'counties in Washington require the prosecutor to file an additional document beyond an information. Brief 2.

       See, e. g., Washington Rule of Professional Conduct 3.7 (1995) (“A lawyer shall not act as advocate at a trial in which the lawyer... is likely to be a necessary witness,” unless four narrow exceptions apply); ABA Model Rules of Professional Conduct 3.7 (1992).

       Brief for Petitioner 25.