Petitioner hired two men to kill his wife. In accordance with
petitioner's plan, the men kidnaped petitioner's wife from her home
in Alabama. Her body was later found on the side of a road in
Georgia. Petitioner pleaded guilty to "malice" murder in a Georgia
trial court in exchange for a sentence of life imprisonment.
Subsequently, he was tried and convicted of murder during a
kidnaping, and was sentenced to death in an Alabama trial court,
which rejected his claim of double jeopardy. The Alabama Court of
Criminal Appeals and the Alabama Supreme Court affirmed the
1. This Court will not decide whether the Alabama trial court
had jurisdiction, where petitioner did not claim lack of
jurisdiction in his petition to the Alabama Supreme Court, but
raised the claim for the first time in his petition to this Court.
P. 474 U. S.
2. Under the dual sovereignty doctrine, successive prosecutions
by two States for the same conduct are not barred by the Double
Jeopardy Clause of the Fifth Amendment, and, hence, Alabama was not
barred from trying petitioner. Pp. 474 U. S.
(a) The dual sovereignty doctrine provides that, when a
defendant in a single act violates the "peace and dignity" of two
sovereigns by breaking the laws of each, he has committed two
distinct "offences" for double jeopardy purposes. In applying the
doctrine, the crucial determination is whether the two entities
that seek successively to prosecute a defendant for the same course
of conduct can be termed separate sovereigns. This determination
turns on whether the prosecuting entities' powers to undertake
criminal prosecutions derive from separate and independent sources.
It has been uniformly held that the States are separate sovereigns
with respect to the Federal Government because each State's power
to prosecute derives from its inherent sovereignty, preserved to it
by the Tenth Amendment, and not from the Federal Government. Given
the distinct sources of their powers to try a defendant, the States
are no less sovereign with respect to each other than they are with
respect to the Federal Government. Pp. 474 U. S.
(b) The application of the dual sovereignty principle cannot be
restricted to cases in which two prosecuting sovereigns can
demonstrate that allowing only one sovereign to exercise
jurisdiction over the defendant
Page 474 U. S. 83
will interfere with the second sovereign's unvindicated
"interests." If the prosecuting entities are separate sovereigns,
the circumstances of the case and the specific "interests" of each
are irrelevant. Pp. 474 U. S.
(c) The suggestion that the dual sovereignty doctrine be
overruled and replaced with a balancing of interests approach is
rejected. The Court's rationale for the doctrine is not a fiction
that can be disregarded in difficult cases; it finds weighty
support in the historical understanding and political realities of
the States' role in the federal system and in the Double Jeopardy
Clause itself. Pp. 474 U. S.
So. 2d 905
O'CONNOR, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS,
JJ., joined. BRENNAN, J., filed a dissenting opinion, in which
MARSHALL, J., joined, post,
p. 474 U. S. 94
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
p. 474 U. S.
JUSTICE O'CONNOR delivered the opinion of the Court.
The question before the Court is whether the Double Jeopardy
Clause of the Fifth Amendment bars Alabama from trying petitioner
for the capital offense of murder during a kidnaping after Georgia
has convicted him of murder based on the same homicide. In
particular, this case presents the issue of the applicability of
the dual sovereignty doctrine to successive prosecutions by two
In August, 1981, petitioner, Larry Gene Heath, hired Charles
Owens and Gregory Lumpkin to kill his wife, Rebecca Heath, who was
then nine months pregnant, for a sum of $2,000. On the morning of
August 31, 1981, petitioner left the Heath residence in Russell
County, Alabama, to meet with Owens and Lumpkin in Georgia, just
over the Alabama
Page 474 U. S. 84
border from the Heath home. Petitioner led them back to the
Heath residence, gave them the keys to the Heaths' car and house,
and left the premises in his girlfriend's truck. Owens and Lumpkin
then kidnaped Rebecca Heath from her home. The Heath car, with
Rebecca Heath's body inside, was later found on the side of a road
in Troup County, Georgia. The cause of death was a gunshot wound in
the head. The estimated time of death and the distance from the
Heath residence to the spot where Rebecca Heath's body was found
are consistent with the theory that the murder took place in
Georgia, and respondent does not contend otherwise.
Georgia and Alabama authorities pursued dual investigations in
which they cooperated to some extent. On September 4, 1981,
petitioner was arrested by Georgia authorities. Petitioner waived
rights and gave a full confession admitting
that he had arranged his wife's kidnaping and murder. In November,
1981, the grand jury of Troup County, Georgia, indicted petitioner
for the offense of "malice" murder under Ga.Code Ann. § 16-5-1
(1984). [Footnote 1
then served petitioner with notice of its intention to seek the
death penalty, citing as the aggravating circumstance the fact that
the murder was "caused and directed" by petitioner. Record 742.
Ga.Code Ann. § 17-10-30(b)(6) (1982). On February 10,
1982, petitioner pleaded guilty to the Georgia murder charge in
exchange for a sentence of life imprisonment, which he understood
could involve his serving as few as seven years in prison.
On May 5, 1982, the grand jury of Russell County, Alabama,
returned an indictment against petitioner for the capital
Page 474 U. S. 85
offense of murder during a kidnaping. [Footnote 2
Ala.Code § 13A-5-40(a)(1)
(1982). Before trial on this indictment, petitioner entered pleas
of autrefois convict
and former jeopardy under the Alabama
and United States Constitutions, arguing that his conviction and
sentence in Georgia barred his prosecution in Alabama for the same
conduct. Petitioner also entered a plea contesting the jurisdiction
of the Alabama court on the ground that the crime had occurred in
After a hearing, the trial court rejected petitioner's double
jeopardy claims. It assumed, arguendo,
that the two
prosecutions could not have been brought in succession by one
State, but held that double jeopardy did not bar successive
prosecutions by two different States for the same act. See
Record 776. The court postponed a ruling on petitioner's plea to
jurisdiction until the close of the State's case in chief. See
At the close of the State's case, petitioner argued that Alabama
did not have jurisdiction under state law, because there had been
no evidence of kidnaping and all the evidence showed that Rebecca
Heath was killed in Georgia. The State responded that a kidnaping
had been proved, and that, under Ala.Code § 15-2-3 (1982), if a
crime commences in Alabama it may be punished in Alabama regardless
of where the crime is consummated. The court rejected both
petitioner's jurisdictional plea and his renewed double jeopardy
On January 12, 1983, the Alabama jury convicted petitioner of
murder during a kidnaping in the first degree. After a sentencing
hearing, the jury recommended the death
Page 474 U. S. 86
penalty. Pursuant to Alabama law, a second sentencing hearing
was held before the trial judge. The judge accepted the jury's
recommendation, finding that the sole aggravating factor, that the
capital offense was "committed while the defendant was engaged in
the commission of a kidnapping," outweighed the sole mitigating
factor, that the
"defendant was convicted of the murder of Rebecca Heath in the
Superior Court of Troup County, Georgia, . . . and received a
sentence of life imprisonment in that court."
at 718-720. See
Ala.Code §§ 13A-5-49(4),
On appeal, the Alabama Court of Criminal Appeals rejected
petitioner's pleas of autrefois convict
jeopardy under the Alabama and United States Constitutions and
affirmed his conviction. 456 So. 2d 898 (1988). Petitioner then
filed a petition for writ of certiorari with the Alabama Supreme
Court, stating the sole issue to be "whether or not the prosecution
in the State of Alabama constituted double jeopardy in violation of
the 5th Amendment of the United States Constitution." App. 92. The
court granted his petition, and unanimously affirmed his
conviction. Ex parte Heath, 455
So. 2d 905
The Alabama Supreme Court noted that "[p]rosecutions under the
laws of separate sovereigns do not improperly subject an accused
twice to prosecutions for the same offense," citing this Court's
cases applying the dual sovereignty doctrine. Id.
The court acknowledged that this Court has not considered the
applicability of the dual sovereignty doctrine to successive
prosecutions by different States. It reasoned, however, that
"[i]f, for double jeopardy purposes, Alabama is considered to be
a sovereign entity vis-a-vis
the federal government, then
surely it is a sovereign entity vis-a-vis
the State of
Petitioner sought a writ of certiorari from this Court, raising
double jeopardy claims and claims based on Alabama's exercise of
jurisdiction. No due process objections were asserted. We granted
certiorari limited to the question
Page 474 U. S. 87
whether petitioner's Alabama conviction was barred by this
Court's decision in Brown v. Ohio, 432 U.
(1977), and requested the parties to address the
question of the applicability of the dual sovereignty doctrine to
successive prosecutions by two States. 470 U.S. 1026 (1985). For
the reasons explained below, we affirm the judgment of the Alabama
Despite the fact that this Court did not grant certiorari on the
constitutional objection to Alabama's exercise of jurisdiction,
petitioner has continued to argue in this Court his jurisdictional
Tr. of Oral Arg. 11-22, 29-31; Brief for
Petitioner 15. We decline to decide the issue, because petitioner
did not claim lack of jurisdiction in his petition to the Alabama
Supreme Court, and he raised the claim for the first time in his
petition to this Court. Pet. for Cert. 4. Even if we were not
jurisdictionally barred from considering claims not pressed or
passed upon in the state court, as has sometimes been stated,
see, e.g., State Farm Mutual Automobile Ins. Co. v. Duel,
324 U. S. 154
324 U. S. 160
(1945); Crowell v.
10 Pet. 368, 35 U. S. 392
(1836), the longstanding rule that this Court will not consider
such claims creates, at the least, a weighty presumption against
review. See, e.g., Illinois v. Gates, 462 U.
, 462 U. S.
Successive prosecutions are barred by the Fifth Amendment only
if the two offenses for which the defendant is prosecuted are the
"same" for double jeopardy purposes. Respondent does not contravene
petitioner's contention that the offenses of "murder during a
kidnaping" and "malice murder," as construed by the courts of
Alabama and Georgia respectively, may be considered greater and
lesser offenses and, thus, the "same" offense under Brown v.
absent operation of the dual sovereignty
principle. See id.
at 432 U. S. 169
Illinois v. Vitale, 447 U. S. 410
(1980). We therefore assume, arguendo,
that, had these
offenses arisen under
Page 474 U. S. 88
the laws of one State, and had petitioner been separately
prosecuted for both offenses in that State, the second conviction
would have been barred by the Double Jeopardy Clause.
The sole remaining question upon which we granted certiorari is
whether the dual sovereignty doctrine permits successive
prosecutions under the laws of different States which otherwise
would be held to "subject [the defendant] for the same offence to
be twice put in jeopardy." U.S.Const., Amdt. 5. Although we have
not previously so held, we believe the answer to this query is
inescapable. The dual sovereignty doctrine, as originally
articulated and consistently applied by this Court, compels the
conclusion that successive prosecutions by two States for the same
conduct are not barred by the Double Jeopardy Clause.
The dual sovereignty doctrine is founded on the common law
conception of crime as an offense against the sovereignty of the
government. When a defendant in a single act violates the "peace
and dignity" of two sovereigns by breaking the laws of each, he has
committed two distinct "offences." United States v. Lanza,
260 U. S. 377
260 U. S. 382
(1922). As the Court explained in Moore v.
14 How. 13, 55 U. S. 19
(1852), "[a]n offence, in its legal signification, means the
transgression of a law." Consequently, when the same act
transgresses the laws of two sovereigns,
"it cannot be truly averred that the offender has been twice
punished for the same offence, but only that by one act he has
committed two offences, for each of which he is justly
at 55 U. S. 20
In applying the dual sovereignty doctrine, then, the crucial
determination is whether the two entities that seek successively to
prosecute a defendant for the same course of conduct can be termed
separate sovereigns. This determination turns on whether the two
entities draw their authority to punish the offender from distinct
sources of power. See, e.g., United States v. Wheeler,
435 U. S. 313
435 U. S. 320
(1978); Waller v. Florida, 397 U.
, 397 U. S. 393
(1970); Puerto Rico
Page 474 U. S. 89
Shell Co., 302 U.
, 302 U. S.
-265 (1937); Lanza, supra,
at 260 U. S. 382
Grafton v. United States, 206 U.
, 206 U. S.
-355 (1907). Thus, the Court has uniformly held that
the States are separate sovereigns with respect to the Federal
Government because each State's power to prosecute is derived from
its own "inherent sovereignty," not from the Federal Government.
at 435 U. S. 320
n. 14. See Abbate v. United States, 359 U.
, 359 U. S.
-194 (1959) (collecting cases); Lanza,
As stated in Lanza, supra,
at 260 U. S.
"Each government in determining what shall be an offense against
its peace and dignity is exercising its own sovereignty, not that
of the other."
"It follows that an act denounced as a crime by both national
and state sovereignties is an offense against the peace and dignity
of both, and may be punished by each."
See also Bartkus v. Illinois, 359 U.
(1959); Westfall v. United States,
274 U. S. 256
274 U. S. 258
(1927) (Holmes, J.) (the proposition that the State and Federal
Governments may punish the same conduct "is too plain to need more
The States are no less sovereign with respect to each other than
they are with respect to the Federal Government. Their powers to
undertake criminal prosecutions derive from separate and
independent sources of power and authority originally belonging to
them before admission to the Union and preserved to them by the
Tenth Amendment. See Lanza, supra,
at 260 U. S. 382
The States are equal to each other
"in power, dignity and authority, each competent to exert that
residuum of sovereignty not delegated to the United States by the
Coyle v. Oklahoma, 221 U. S. 559
221 U. S. 567
(1911). See Skiriotes v. Florida, 313 U. S.
, 313 U. S. 77
"[e]ach has the power, inherent in any sovereign, independently
to determine what shall be an offense against its authority and to
punish such offenses, and in doing so each 'is exercising its own
sovereignty, not that of the
Page 474 U. S. 90
at 435 U. S. 320
(quoting Lanza, supra,
at 260 U. S.
The cases in which the Court has applied the dual sovereignty
principle outside the realm of successive federal and state
prosecutions illustrate the soundness of this analysis. United
States v. Wheeler, supra,
is particularly instructive, because
there the Court expressly refused to find that only the State and
Federal Governments could be considered distinct sovereigns with
respect to each other for double jeopardy purposes, stating that
"so restrictive a view of [the dual sovereignty] concept . . .
would require disregard of the very words of the Double Jeopardy
at 435 U. S. 330
Instead, the Wheeler
Court reiterated the principle that
the sovereignty of two prosecuting entities for these purposes is
determined by "the ultimate source of the power under which the
respective prosecutions were undertaken." Id.
435 U. S. 320
On the basis of this reasoning, the Court held that the Navajo
Tribe, whose power to prosecute its members for tribal offenses is
derived from the Tribe's "primeval sovereignty," rather than a
delegation of federal authority, is an independent sovereign from
the Federal Government for purposes of the dual sovereignty
at 435 U. S.
In those instances where the Court has found the dual
sovereignty doctrine inapplicable, it has done so because the two
prosecuting entities did not derive their powers to prosecute from
independent sources of authority. Thus, the Court has held that
successive prosecutions by federal and territorial courts are
barred because such courts are "creations emanating from the same
sovereignty." Puerto Rico,
302 U.S. at 302 U. S. 264
at 302 U. S.
-266. See also Grafton, supra
Philippine Islands). Similarly, municipalities that derive their
power to try a defendant from the same organic law that empowers
the State to prosecute are not separate sovereigns with respect to
the State. See, e.g., Waller, supra.
These cases confirm
that it is the presence of independent sovereign authority to
prosecute, not the relation between States and the Federal
Page 474 U. S. 91
in our federalist system, that constitutes the basis for the
dual sovereignty doctrine.
Petitioner argues that Nielsen v. Oregon, 212 U.
(1909), indicates, albeit in dicta, that where
States have concurrent jurisdiction over a criminal offense, the
first State to prosecute thereby bars prosecution by any other
State. We find that Nielsen
is limited to its unusual
facts and has continuing relevance, if at all, only to questions of
jurisdiction between two entities deriving their concurrent
jurisdiction from a single source of authority. In
the Court set aside a conviction obtained by the
State of Oregon against a resident of the State of Washington for
his operation of a purse net for fish in the Columbia River
pursuant to a valid license to do so from the State of Washington.
The Court noted:
"By the legislation of Congress, the Columbia River is made the
common boundary between Oregon and Washington, and to each of those
States is given concurrent jurisdiction on the waters of that
at 212 U. S.
"[T]he grant of concurrent jurisdiction may bring up from time
to time . . . some curious and difficult questions, so we properly
confine ourselves to the precise question presented. . . . It is
enough to decide, as we do, that for an act done within the
territorial limits of the State of Washington under authority and
license from that State, one cannot be prosecuted and punished by
the State of Oregon."
at 212 U. S.
-321. It is obvious that the Nielsen
did not attempt to decide, or even to consider, the double jeopardy
effect of successive state prosecutions for offenses proscribed by
both States; the case, therefore, has no bearing on the issue of
the applicability of the dual sovereignty doctrine presented in
Petitioner invites us to restrict the applicability of the dual
sovereignty principle to cases in which two governmental
Page 474 U. S. 92
entities, having concurrent jurisdiction and pursuing quite
different interests, can demonstrate that allowing only one entity
to exercise jurisdiction over the defendant will interfere with the
unvindicated interests of the second entity, and that multiple
prosecutions therefore are necessary for the satisfaction of the
legitimate interests of both entities. This balancing of interests
approach, however, cannot be reconciled with the dual sovereignty
principle. This Court has plainly and repeatedly stated that two
identical offenses are not the "same offence" within the meaning of
the Double Jeopardy Clause if they are prosecuted by different
sovereigns. See, e.g., United Skates v. Lanza,
260 U. S. 377
(1922) (same conduct, indistinguishable statutes, same
"interests"). If the States are separate sovereigns, as they must
be under the definition of sovereignty which the Court consistently
has employed, the circumstances of the case are irrelevant.
Petitioner, then, is asking the Court to discard its sovereignty
analysis and to substitute in its stead his difficult and uncertain
balancing of interests approach. The Court has refused a similar
request on at least one previous occasion, see Abbate v. United
States, 359 U. S. 187
at 359 U. S. 196
(BRENNAN, J., separate opinion), and rightfully so. The Court's
express rationale for the dual sovereignty doctrine is not simply a
fiction that can be disregarded in difficult cases. It finds
weighty support in the historical understanding and political
realities of the States' role in the federal system and in the
words of the Double Jeopardy Clause itself, "nor shall any person
be subject for the same offence
to be twice put in
jeopardy of life or limb." U.S.Const., Amdt. 6 (emphasis added).
435 U.S. at 435 U. S.
It is axiomatic that,
"[i]n America, the powers of sovereignty are divided between the
government of the Union and those of the States. They are each
sovereign with respect to the objects committed to it, and neither
sovereign with respect to the objects committed to the other.
Page 474 U. S. 93
McCulloch v. Maryland,
Wheat. 316, 17 U. S. 410
(1819). It is as
well established that the States, 'as political communities, [are]
distinct and sovereign, and consequently foreign to each other.'
United States v. Daniel,
12 Pet. 32, 37 U. S.
(1838). See also Skiriotes v. Florida,
U.S. at 313 U. S. 77
; Coyle v.
221 U.S. at 221 U. S.
. The Constitution leaves in the possession of each
State 'certain exclusive and very important portions of sovereign
power.' The Federalist No. 9, p. 55 (J. Cooke ed.1961). Foremost
among the prerogatives of sovereignty is the power to create and
enforce a criminal code. See, e.g., Alfred L. Snapp & Son,
Inc. v. Puerto Rico ex rel. Barez, 458 U. S.
, 458 U. S. 601
at 17 U. S.
. To deny a State its power to enforce its criminal
laws because another State has won the race to the courthouse"
"would be a shocking and untoward deprivation of the historic
right and obligation of the States to maintain peace and order
within their confines."
359 U.S. at 359 U. S.
Such a deprivation of a State's sovereign powers cannot be
justified by the assertion that, under "interest analysis," the
State's legitimate penal interests will be satisfied through a
prosecution conducted by another State. A State's interest in
vindicating its sovereign authority through enforcement of its
laws, by definition, can never be satisfied by another State's
enforcement of its
own laws. Just as the Federal
Government has the right to decide that a state prosecution has not
vindicated a violation of the "peace and dignity" of the Federal
Government, a State must be entitled to decide that a prosecution
by another State has not satisfied its legitimate sovereign
interest. In recognition of this fact, the Court consistently has
endorsed the principle that a single act constitutes an "offence"
against each sovereign whose laws are violated by that act. The
Court has always understood the words of the Double Jeopardy Clause
to reflect this fundamental principle, and we see no reason why we
should reconsider that understanding today.
Page 474 U. S. 94
The judgment of the Supreme Court of Alabama is affirmed.
It is so ordered.
The indictment read as follows:
"[The grand jurors] in the name and on behalf of the citizens of
Georgia, charge and accuse LARRY GENE HEATH [et al.
the offense of MURDER (26-1101); for that the said LARRY GENE HEATH
] on the date of August 31, 1981, in the county
aforesaid, did then and there unlawfully and with malice
aforethought cause the death of Rebecca McGuire Heath, a human
being, by shooting her with a gun, a deadly weapon."
The indictment stated:
"Larry Gene Heath did intentionally cause the death of Rebecca
Heath, by shooting her with a gun, and Larry Gene Heath caused said
death during Larry Gene Heath's abduction of, or attempt to abduct,
Rebecca Heath with intent to inflict physical injury upon her, in
violation of § 13A-5-40(a)(1) of the Code of Alabama 1975, as
amended, against the peace and dignity of the State of
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
I concur wholeheartedly in JUSTICE MARSHALL's dissent. I write
separately only to clarify my views on the role that "different
interests" should play in determining whether two prosecutions are
"for the same offence" within the meaning of the Double Jeopardy
In Abbate v. United States, 359 U.
(1959), in addition to arguing that the dual
sovereignty doctrine permitted successive state and federal
prosecutions, the Federal Government also urged that the federal
prosecution was not barred because the two prosecutions were not
"for the same offense." The Government's theory was that, because
the federal and state statutes involved had divergent specific
-- the federal law to protect communications and the
state law to protect private property -- and thus promoted
different "interests," the prosecutions were really for different
I rejected this argument in a separate opinion. Id.
359 U. S.
-201. My concern was that
"this reasoning would apply equally if each of two successive
prosecutions based on the same acts was brought
under a different federal
statute, and each statute was
designed to protect a different federal interest."
at 359 U. S. 197
(emphasis in original). That result I found clearly barred by the
Fifth Amendment. *
I adhere to the position I took in Abbate,
different purposes or interests served by specific statutes cannot
justify an exception to our established double jeopardy law.
However, I read JUSTICE MARSHALL's dissent to use "interest"
analysis in another context. He employs it to demonstrate the
qualitative difference in the general nature of federal and state
interests and the qualitative similarity in the nature of States'
interest. JUSTICE MARSHALL's use of this interest analysis
furthers, rather than undermines, the purposes of the Double
Jeopardy Clause. Based on this understanding, I join JUSTICE
Page 474 U. S. 95
* I illustrated how radical and pernicious a revision in
existing double jeopardy jurisprudence the Government's theory
might work by referring to In re Nielsen, 131 U.
(1889). Abbate v. United States,
U.S. at 359 U. S. 201
the defendant, a Mormon with more than one
wife, had been convicted of violating two separate congressional
statutes that applied to the Territory of Utah in two successive
prosecutions. In the first prosecution, he was tried for and
convicted of cohabiting with more than one woman, in the second he
was tried for and convicted of adultery. The Court correctly held
that the second prosecution had unconstitutionally placed the
defendant twice in jeopardy for the same offense. Under the rule
the Government proposed in Abbate,
however, the mere
difference between the interests in prohibiting multiple sexual
partners and in proscribing extramarital sexual relationships would
have permitted successive prosecutions.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
Seizing upon the suggestion in past cases that every
"independent" sovereign government may prosecute violations of its
laws even when the defendant has already been tried for the same
crime in another jurisdiction, the Court today gives short shrift
to the policies underlying those precedents. The "dual sovereignty"
doctrine, heretofore used to permit federal and state prosecutions
for the same offense, was born of the need to accommodate
complementary state and federal concerns within our system of
concurrent territorial jurisdictions. It cannot justify successive
prosecutions by different States. Moreover, even were the dual
sovereignty doctrine to support successive state prosecutions as a
general matter, it simply could not legitimate the collusion
between Georgia and Alabama in this case to ensure that petitioner
is executed for his crime.
Page 474 U. S. 96
On August 31, 1981, the body of Rebecca Heath was discovered in
an abandoned car in Troup County, Georgia. Because the deceased was
a resident of Russell County, Alabama, members of the Russell
County Sheriff's Department immediately joined Troup County
authorities in investigating the causes and agents of her death.
Tr. 359. This cooperative effort proved fruitful. On September 4,
petitioner Larry Heath, the deceased's husband, was arrested and
brought to the Georgia State Patrol barracks in Troup County, where
he confessed to having hired other men to murder his wife. Shortly
thereafter, petitioner was indicted by the grand jury of Troup
County for malice murder. The prosecution's notice to petitioner
that it was seeking the death penalty triggered the beginning of
the Unified Appeals Procedure that Georgia requires in capital
cases. But while these pretrial proceedings were still in progress,
petitioner seized the prosecution's offer of a life sentence in
exchange for a guilty plea. Upon entry of his plea in February,
1982, petitioner was sentenced in Troup County Superior Court to
life imprisonment. His stay in the custody of Georgia authorities
proved short, however. Three months later, a Russell County,
Alabama, grand jury indicted him for the capital offense of
murdering Rebecca Heath during the course of a kidnaping in the
The murder of Rebecca Heath must have been quite noteworthy in
Russell County, Alabama. By petitioner's count, of the 82
prospective jurors questioned before trial during voir
all but 7 stated that they were aware that petitioner
had pleaded guilty to the same crime in Georgia. Id.
294. The voir dire
responses of almost all of the
remaining 75 veniremen can only be characterized as remarkable.
When asked whether they could put aside their knowledge of the
prior guilty plea in order to give petitioner a fair trial in
Alabama, the vast majority answered in the affirmative. See,
at 110, 112-113, 134, 254. These answers
Page 474 U. S. 97
the trial judge, who denied petitioner's challenges for cause
except as to those jurors who explicitly admitted that the Georgia
proceedings would probably affect their assessment of petitioner's
With such a well-informed jury, the outcome of the trial was
surely a foregone conclusion. Defense counsel could do little but
attempt to elicit information from prosecution witnesses tending to
show that the crime was committed exclusively in Georgia. The court
having rejected petitioner's constitutional and jurisdictional
claims, the defense was left to spend most of its summation arguing
that Rebecca Heath may not actually have been kidnaped from Alabama
before she was murdered, and that petitioner was already being
punished for ordering that murder. Petitioner was convicted and,
after sentencing hearings, was condemned to die. The conviction and
sentence were upheld by the Alabama Court of Criminal Appeals,
455 So. 2d 898
(1983), and the Alabama Supreme Court. Ex
parte Heath, 455 So. 2d
Had the Georgia authorities suddenly become dissatisfied with
the life sentence petitioner received in their courts and
reindicted petitioner in order to seek the death penalty once
again, that indictment would without question be barred by the
Double Jeopardy Clause of the Fifth Amendment, as applied to the
States by the Fourteenth Amendment, Benton v. Maryland,
395 U. S. 784
(1969). Whether the second indictment repeated the charge of malice
murder or instead charged murder in the course of a kidnaping, it
would surely, under any reasonable constitutional standard, offend
the bar to successive prosecutions for the same offense. See
Brown v. Ohio, 432 U. S. 161
432 U. S. 166
at 432 U. S. 170
(BRENNAN, J., concurring).
The only difference between this case and such a hypothetical
by Georgia is that here Alabama, not Georgia,
was offended by the notion that petitioner might
Page 474 U. S. 98
not forfeit his life in punishment for his crime. The only
reason the Court gives for permitting Alabama to go forward is that
Georgia and Alabama are separate sovereigns.
The dual sovereignty theory posits that where the same act
offends the laws of two sovereigns,
"It cannot be truly averred that the offender has been twice
punished for the same offence; but only that by one act he has
committed two offences, for each of which he is justly
14 How. 13, 55 U. S. 20
"prosecutions under the laws of separate sovereigns do not, in
the language of the Fifth Amendment, 'subject [the defendant] for
the same offence to be twice put in jeopardy.'"
United States v. Wheeler, 435 U.
, 435 U. S. 317
(1978). Mindful of the admonitions of Justice Black, we should
recognize this exegesis of the Clause as, at best, a useful fiction
and, at worst, a dangerous one. See Bartkus v. Illinois,
359 U. S. 121
359 U. S. 158
(1959) (Black, J., dissenting). No evidence has ever been adduced
to indicate that the Framers intended the word "offence" to have so
restrictive a meaning. [Footnote
This strained reading of the Double Jeopardy Clause has survived
and indeed flourished in this Court's cases not because of any
inherent plausibility, but because it provides reassuring
interpretivist support for a rule that accommodates the unique
nature of our federal system. Before this rule is extended to cover
a new class of cases, the reasons for its creation should therefore
be made clear.
Page 474 U. S. 99
Under the constitutional scheme, the Federal Government has been
given the exclusive power to vindicate certain of our Nation's
sovereign interests, leaving the States to exercise complementary
authority over matters of more local concern. The respective
spheres of the Federal Government and the States may overlap at
times, and even where they do not, different interests may be
implicated by a single act. See, e.g., Abbate v. United
States, 359 U. S. 187
(1959) (conspiracy to dynamite telephone company facilities entails
both destruction of property and disruption of federal
communications network). Yet were a prosecution by a State, however
zealously pursued, allowed to preclude further prosecution by the
Federal Government for the same crime, an entire range of national
interests could be frustrated. The importance of those federal
interests has thus quite properly been permitted to trump a
defendant's interest in avoiding successive prosecutions or
multiple punishments for the same crime. See Screws v. United
States, 325 U. S. 91
325 U. S.
-110, and n. 10 (1945) (plurality opinion).
Conversely, because "the States under our federal system have the
principal responsibility for defining and prosecuting crimes,"
Abbate v. United States, supra,
at 359 U. S. 195
it would be inappropriate -- in the absence of a specific
congressional intent to preempt state action pursuant to the
Supremacy Clause -- to allow a federal prosecution to preclude
state authorities from vindicating "the historic right and
obligation of the States to maintain peace and order within their
confines," Bartkus v. Illinois, supra,
at 359 U. S.
The complementary nature of the sovereignty exercised by the
Federal Government and the States places upon a defendant burdens
commensurate with concomitant privileges. Past cases have
recognized that the special ordeal suffered by a defendant
prosecuted by both federal and state authorities is the price of
living in a federal system, the cost of dual citizenship. Every
citizen, the Court has noted,
"owes allegiance to the two departments, so to speak, and within
Page 474 U. S. 100
respective spheres must pay the penalties which each exacts for
disobedience to its laws. In return, he can demand protection from
each within its own jurisdiction."
United States v. Cruikshank, 92 U. S.
, 92 U. S. 551
(1876). See Moore v. Illinois, supra,
at 55 U. S. 20
("Every citizen . . . may be said to owe allegiance to two
sovereigns, and may be liable to punishment for an infraction of
the laws of either").
Because all but one of the cases upholding the dual sovereignty
doctrine have involved the unique relationship between the Federal
Government and the States, [Footnote
] the question whether a similar rule should exempt
successive prosecutions by two different States from the command of
the Double Jeopardy Clause is one for which this Court's precedents
provide all too little illumination. Only once before has the Court
explicitly considered competing state prosecutorial interests. In
that case, it observed that, where an act is prohibited by the laws
of two States with concurrent jurisdiction over the locus of the
"the one first acquiring jurisdiction of the person may
prosecute the offense, and its judgment is a finality in both
States, so that one convicted or acquitted in the courts of the one
State cannot be prosecuted for the same offense in the courts of
Nielsen v. Oregon, 212 U. S. 315
212 U. S. 320
Where two States seek to prosecute the same defendant for the
same crime in two separate proceedings, the justifications
Page 474 U. S. 101
found in the federal-state context for an exemption from double
jeopardy constraints simply do not hold. Although the two States
may have opted for different policies within their assigned
territorial jurisdictions, the sovereign concerns with whose
vindication each State has been charged are identical. Thus, in
contrast to the federal-state context, barring the second
prosecution would still permit one government to act upon the broad
range of sovereign concerns that have been reserved to the States
by the Constitution. The compelling need in the federal-state
context to subordinate double jeopardy concerns is thus
considerably diminished in cases involving successive prosecutions
by different States. Moreover, from the defendant's perspective,
the burden of successive prosecutions cannot be justified as the
quid pro quo
of dual citizenship.
To be sure, a refusal to extend the dual sovereignty rule to
state-state prosecutions would preclude the State that has lost the
"race to the courthouse" from vindicating legitimate policies
distinct from those underlying its sister State's prosecution. But,
as yet, I am not persuaded that a State's desire to further a
particular policy should be permitted to deprive a defendant of his
constitutionally protected right not to be brought to bar more than
once to answer essentially the same charges.
Having expressed my doubts as to the Court's ill-considered
resolution of the dual sovereignty question in this case, I must
confess that my quarrel with the Court's disposition of this case
is based less upon how this question was resolved than upon the
fact that it was considered at all. Although, in granting Heath's
petition for certiorari, this Court ordered the parties to focus
upon the dual sovereignty issue, I believe the Court errs in
refusing to consider the fundamental unfairness of the process by
which petitioner stands condemned to die.
Page 474 U. S. 102
Even where the power of two sovereigns to pursue separate
prosecutions for the same crime has been undisputed, this Court has
barred both governments from combining to do together what each
could not constitutionally do on its own. See Murphy v.
Waterfront Comm'n, 378 U. S. 52
(1964); Elkins v. United States, 364 U.
] And just as the Constitution bars one sovereign from
facilitating another's prosecution by delivering testimony coerced
under promise of immunity or evidence illegally seized, I believe
that it prohibits two sovereigns from combining forces to ensure
that a defendant receives only the trappings of criminal process as
he is sped along to execution.
While no one can doubt the propriety of two States cooperating
to bring a criminal to justice, the cooperation between Georgia and
Alabama in this case went far beyond their initial joint
investigation. Georgia's efforts to secure petitioner's execution
did not end with its acceptance of his guilty plea. Its law
enforcement officials went on to play leading roles as prosecution
witnesses in the Alabama trial. Indeed, had the Alabama trial judge
not restricted the State to one assisting officer at the
prosecution's table during trial, a Georgia officer would have
shared the honors with an Alabama officer. Tr. 298. Although the
record does not reveal
Page 474 U. S. 103
the precise nature of the assurances made by Georgia authorities
that induced petitioner to plead guilty in the first proceeding
against him, I cannot believe he would have done so had he been
aware that the officials whose forbearance he bought in Georgia
with his plea would merely continue their efforts to secure his
death in another jurisdiction. Cf. Santobello v. New York,
404 U. S. 257
404 U. S. 262
Even before the Fourteenth Amendment was held to incorporate the
protections of the Double Jeopardy Clause, four Members of this
Court registered their outrage at
"an instance of the prosecution's being allowed to harass the
accused with repeated trials and convictions on the same evidence,
until it achieve[d] its desired result of a capital verdict."
Ciucci v. Illinois, 356 U. S. 571
356 U. S. 573
(1958). Such "relentless prosecutions," they asserted,
"an unseemly and oppressive use of a criminal trial that
violates the concept of due process contained in the Fourteenth
Amendment, whatever its ultimate scope is taken to be."
at 356 U. S. 575
The only differences between the facts in Ciucci
in this case are that here the relentless effort was a cooperative
one between two States and that petitioner sought to avoid trial by
pleading guilty. Whether viewed as a violation of the Double
Jeopardy Clause or simply as an affront to the due process
guarantee of fundamental fairness, Alabama's prosecution of
petitioner cannot survive constitutional scrutiny. I therefore must
It is curious to note how reluctant the Court has always been to
ascertain the intent of the Framers in this area. The furthest the
Court has ever progressed on such an inquiry was to note:
"It has not been deemed relevant to discussion of our problem to
consider dubious English precedents concerning the effect of
foreign criminal judgments on the ability of English courts to try
charges arising out of the same conduct. . . ."
Bartkus v. Illinois,
359 U.S. at 359 U. S. 128
n. 9. But see id.
at 359 U. S. 156
(Black, J., dissenting); M. Friedland, Double Jeopardy 360-364
United States v. Wheeler, 435 U.
(1978), where the Court upheld successive
prosecutions by Federal Government and Navajo tribal authorities,
merely recognizes an analogous relationship between two governments
with complementary concerns. While the Court noted that "Congress
has plenary authority to legislate for the Indian tribes in all
matters, including their form of government," id.
435 U. S. 319
Congress has in fact wisely refrained from interfering in this
sensitive area. The relationship between federal and tribal
authorities is thus, in this respect, analogous to that between the
Federal Government and the States.
To be sure, Murphy,
which bars a State from compelling
a witness to give testimony that might be used against him in a
federal prosecution, and Elkins,
which bars the
introduction in a federal prosecution of evidence illegally seized
by state officers, do not necessarily undermine the basis of the
rule allowing successive state and federal prosecutions. It is one
thing to bar a sovereign from using certain evidence, and quite
another to bar it from prosecuting altogether. But these cases can
be read to suggest that, despite the independent sovereign status
of the Federal and State Governments, courts should not be blind to
the impact of combined federal-state law enforcement on an
accused's constitutional rights. See
Prosecution by State and Federal Governments: Another Exercise in
Federalism, 80 Harv.L.Rev. 1538, 1647 (1967). Justice Harlan's
belief that Murphy
"abolished the two sovereignties'
rule," Stevens v. Marks, 383 U. S. 234,
383 U. S. 250
(1966) (Harlan, J., concurring in part, dissenting in part), was