What is the The Kennedy Test ? In United States v. Halper, 490 U.S. 435,(1989), the Court found that some civil penalties could be considered punitive if they had a deterrent effect. The U.S. Supreme Court has moved beyond the Halper test in Hudson et al. v. United States, 522 U.S. 93 (1997). In Hudson, the Court found that the Halper test was unworkable because almost any civil sanction has some element of deterrence. The Court used instead the test in Kennedy v. Mendoza-Martinez, 372 U.S. 144, (1963) (the "Kennedy Test"). The factors used in the Kennedy Test include: whether the sanction involves an affirmative disability or restraint; whether it has historically been regarded as a punishment; whether it comes into play only on a finding of scienter; whether its operation will promote the traditional aims of punishment-retribution and deterrence; whether the behavior to which it applies is already a crime; whether an alternative purpose to which it may rationally be connected is assignable for it; 7) whether it appears excessive in relation to the alternative purpose assigned . . . . These factors must be considered in relation to the statute on its face . . . ." Hudson, 522 U.S. at 99-100, 118 S. Ct. at 493.