Department of Revenue v. Kurth Ranch

1. How many legal proceedings were there?

2. If the penalty in the second proceeding is only money and the government (apparently) could collect the same amount of money in a unified criminal proceeding by increasing the fine (at least to the limit created by the excessive fines clause), why should we worry about having separate proceedings? Is it that different burdens of proof exist in the second proceeding? Would it still be double jeopardy if the government said the tax liability had to be proven beyond a reasonable doubt? Does this case make more sense if one thinks of a purpose of double jeopardy as partly being to spare the defendant the psychological and financial costs of separate proceedings: never knowing when you've done your time?

3. In her dissent, Justice O'Connor writes: " A defendant who is arrested, tried, and convicted for possession of one ounce of marijuana cannot be taxed $100 therefor, even though the State’s law enforcement costs in such a case average more than $4,000. ✎But the State could fine the person $4,000 in the same proceeding. No?✎ Moreover, presumably the State cannot tax anyone for possession of illegal drugs without providing the full panoply of criminal procedure protections found in the Fifth and Sixth Amendments, given the Court’s holding that “[t]he proceeding Montana initiated to collect a tax on the possession of drugs was the functional equivalent of a successive criminal prosecution.” But isn't what O'Connor sees as a bug created by the majority opinion in fact a feature. If the purpose of these taxes is punitive and based on a crime, perhaps defendants subject to the "tax" should be provided the same protections as they would be if the government sought to collect the same money as a fine?

4. In their dissents, Justices Thomas and Scalia seem to be arguing that double jeopardy does not exist where the legislature authorizes multiple punishments for related aspects of the same underlying crime and that Halper (and some predecessors) went off the rails by holding (or suggesting) differently. But is that right. Could the legislature make it a crime to hit a federal law enforcement official and a separate crime to hit a border patrol agent. Then, when the prosecution fails for hitting a law enforcement official who happens to be a border patrol agent, bring charges for hitting a border patrol agent using the same facts?

5. Now that we know the Excessive Fines clause has been incorporated, should that have been the basis for the decision in Halper (as Scalia suggests in a dissenting footnote)? Was the fine/tax imposed in this case excessive? Does your answer depend on an assessment as to bad a thing it is to grow marijuana for commercial purposes?