To Punish or to Remedy - That is the Constitutional Question: Double Jeopardy Confusion in State v. Hansen

Abstract

INTRODUCTION|The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states, "[Nlor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." In United States v. Halper, the United States Supreme Court developed a test to determine the Double Jeopardy Clause's scope of protection.|[I]t follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.... We therefore 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...