Civil Money Sanctions Barred by DoubleJeopardy: Should the SupremeCourt Reject Healy?

What the commentators do agree on is that double jeopardy is a realm of law so confusing, so replete with contradictions, corrections, and exceptions to the rules, that after 120 years no sensible meaning or policy has evolved.1 I. Introduction Prior to 1989, courts could easily resolve a Double Jeopardy Clause2 defense to a civil proceeding brought by the Government - the Clause simply did not apply to civil proceedings.3 Then, the Supreme Court held in United States v. Halper that a civil proceeding brought by the Government following a criminal conviction based on the same conduct violated the Double Jeopardy Clause to the extent that the civil sanction was punitive.5 The decision enabled defendants to raise a double jeopardy defense whenever faced with successive criminal and civil proceedings brought by the Government6 and instructed lower courts to apply the standards announced in Halper.7 Recently, the United States Court of Appeals for the Seventh Circuit held in S.A. Healy Co. v. Occupational Safety & Health Review Commission8 that an administrative sanction following a criminal conviction violated the Double Jeopardy Clause even though the sanction did not exceed the Government's costs of investigation and prosecution.9 The Seventh Circuit recognized the split that Healy caused with the decision of the United States Court of Appeals for the Tenth Circuit in United States v. Hudson,10 which held that a sanction not exceeding the Government's costs of investigation and prosecution was not punishment.11 Moreover, the decision also raised issues regarding whether a sanction is punitive if the regulatory statute lacks consideration of the Government's expenses12 and whether a sanction is punitive when the Government is not the victim.13 Presumably to resolve the split between Hudson and Healy, the United States Supreme Court granted certiorari in the Hudson case.14 Although the Hudson and Healy decisions created a split among the Tenth and Seventh Circuits,15 it is the Healy decision that provided an in-depth discussion of the issues regarding statutory allowance of the consideration of the Government's expenses and the relevance of the Government's status as a victim.16 Thus, this Note focuses on the reasoning in Healy. This Note analyzes the issues raised by Healy with regard to the Halper decision and the holdings of other courts. Part II gives an overview of the use of civil money sanctions by agencies and the increased allowance of both civil and criminal sanctions in regulatory legislation.17 A review of the basic doctrines that have developed regarding the Double Jeopardy Clause and its protections follows in Part III.A.18 After discussing Halper,19 Part III.B examines the views of several commentators regarding the Halper decision and discusses the impact of Halper on the use of civil money sanctions.20 Part IV analyzes the three issues raised in Healy: (1) whether lack of statutory consideration of the Government's expenses makes a sanction punitive;21 (2) whether a sanction is punitive when the Government is not the victim;22 and (3) whether a sanction that does not exceed the Government's costs can be punitive.23 This Note concludes that a lack of statutory consideration of the. Government's costs does not make a sanction punitive24 and that a sanction may be remedial even if the Government is not a victim.25 Finally, this Note addresses the explicit split between Hudson and Healy and argues that although in some cases a sanction that does not exceed the Government's costs may be punitive, courts should generally follow the rule of Hudson.26 II. The Use of Civil Money Sanctions and Criminal Sanctions in Agency Enforcement In recent years, the number of civil sanctions authorized in regulatory legislation has grown.27 Many regulatory statutes now contain both criminal and civil sanctions for the same conduct and create a mixture of enforcement remedies.28 This combination of civil and criminal sanctions has many implications. …