United States v. Ward

Me! Justice Stevens,

dissenting.

There are a host of situations in which the Government requires the citizen to provide it with information that may later be useful in proving that the citizen has some liability to the Government. In determining whether the combination of compulsion and liability is consistent with the Fifth Amendment, I would look to two factors: first, whether the liability actually imposed on the citizen is properly characterized as “criminal” and second, if so, whether the compulsion of information was designed to assist the Government in imposing such a penalty rather than furthering some other valid regulatory purpose.

Although this case is admittedly a close one, I am persuaded that the monetary penalty imposed on respondent pursuant to § 311 (b)(6) of the Federal Water Pollution Control Act, 33 U. S. C. § 1321 (b)(6), was a “criminal” sanction for purposes of the Fifth Amendment protection against compelled self-incrimination. As the Court of Appeals pointed out, penalties under § 311 (b)(6) are not calculated to reimburse the Government for the cost of cleaning up an *258 oil spill. 1 Rather, this part of the statute is clearly aimed at exacting retribution for causing the spill:

“The penalties are based on such factors as the gravity of the violation, the degree of culpability and the prior record of the party. The fact that a party acted in good faith, could not have avoided the discharge and, once it occurred, undertook clean-up measures immediately is to be given no consideration in relation to the ‘imposition or amount of a civil penalty.’ ” Ward v. Coleman, 598 F. 2d 1187, 1193 (CA10 1979).

I agree with the Court of Appeals that, under these circumstances, application of the factors set forth in Kennedy v. Mendoza-Martinez, 372 U. S. 144 , leads to the conclusion that the penalty is a criminal sanction rather than a purely regulatory measure.

That is not the end of the inquiry, however. A reporting requirement is not necessarily invalid simply because it may incriminate a few of the many people to whom it applies. Two examples from the tax field will illustrate my point. As this Court held in Marchetti v. United States, 390 U. S. 39 , and Grosso v. United States, 390 U. S. 62 , statutes that are plainly designed to obtain information from a limited class of persons engaged in criminal activity in order to facilitate their prosecution and conviction are invalid under the Fifth Amendment. On the other hand, when the general income tax laws require a full reporting of each taxpayer’s income in order to fulfill the Government’s regulatory objectives, the fact that a particular answer may incriminate a particular taxpayer is not a sufficient excuse for refusing to *259 supply the relevant information required from every taxpayer. See United States v. Oliver, 505 F. 2d 301, 307-308 (CA7 1974). 2

Thus, given that the statutory penalty in this case is a criminal sanction, the issue becomes what the primary purpose of requiring the citizen to report oil spills is. If it is to simplify the assessment and collection of penalties from those responsible, it should fall within the reasoning of Marchetti and Grosso . On the other hand, if the requirement is merely to assist the Government in its cleanup responsibilities and *260 in its efforts to monitor the conditions of the Nation’s waterways, it should be permissible. Although the question is again a close one, the automatic nature of the statutory penalty, which must be assessed in each and every case, convinces me that the reporting requirement is a form of compelled self-incrimination. 3 I therefore respectfully dissent.

An owner or operator is liable for cleanup costs or, in the event that the discharge is “nonremovable,” for liquidated damages under 33 U. S. C. § 1321 (b) (2) (B) (i) and § 1321 (f). As the Court of Appeals noted, payment of these damages does not relieve the owner or operator of liability for civil penalties under § 311 (b)(6). Ward v. Coleman, 598 F 2d 1187 , 1191 (CA10 1978).

As I suggested in Oliver :

“The enactment of special legislation designed to procure incriminating disclosures from a select group of persons engaged in criminal conduct was tantamount to an accusation commencing criminal proceedings against them. The statutory demand to register as a gambler was comparable to the inquisitor’s demand that a suspect in custody admit his guilt. The admission, once made, would almost inevitably become a part of the record of a criminal proceeding against a person who had already been accused when he confessed.. Just as the Miranda decision may be read as having enlarged the adversary proceeding to commence when the accused is first taken into custody, Marchetti and comparable cases have, for Fifth Amendment purposes, treated special statutes designed to secure incriminating information from inherently suspect classes of persons as the commencement of criminal proceedings against those from whom incriminating information is demanded. Under this analysis, we must test the applicability of the Fifth Amendment to a self-reporting statute at the time that disclosure is compelled.

“The statute which defendant Oliver is accused of violating is applicable to the public at large, and its demands for information are neutral in the sense that they apply evenly to the few who have illegal earnings and the many who do not. The self-reporting requirements of the Internal Revenue Code are justified by acceptable reasons of policy, entirely unrelated to any purpose to obtain incriminating evidence against an accused person or group. Therefore, even though the disclosure of defendant’s illegal income was compelled by statute, and even though we assume that such disclosure might well have been incriminating, the Marchetti holding does not justify the conclusion that the Fifth Amendment excuses defendant’s obligation to report his entire income.” (Footnotes omitted.) 505 F. 2d, at 307-308 .

As a result, I would hold that the Government could not use a report' filed by an individual owner or operator in assessing a civil penalty under §311 (b)(6). However, I believe the Government could still use such a report in assessing damages under either § 311 (b) (2) (B) (i) or §311 (f), see n. 1, supra, since penalties assessed under those subsections are regulatory rather than punitive in character.