Miscellany

Here's an excerpt from HUDSON v. UNITED STATES, 522 U.S. 93 (1997), referring to a case in which the feds convicted Halper criminally of 65 counts of defrauding Medicare of $9 per count and also fined him. The discussion is of double jeopardy but it mentions excessive fines too. His having to appeal all the way to the US Supreme Court for such a trivial amount seems deterrence enough against dealing with Medicare or any other federal medical insurance at all.

Our opinion in United States v. Halper [490 US 435 (1989)] 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 violating the criminal· false claims statute 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. 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." 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.
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." 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."
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." The second significant departure in Halper was the Court's decision to "assess the character of the actual sanctions imposed," rather than, as Kennedy demanded, evaluating the “statute on its face,” to determine whether it provided for what amounted to a criminal sanction:
We believe that Halper's deviation from longstanding double jeopardy principles was ill considered. As subsequent cses have demonstrated, Halper'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.