Shortly after his trial for first-degree murder had commenced in
an Arizona court, respondent and the prosecutor reached an
agreement whereby respondent would plead guilty to second-degree
murder and testify against other parties involved in the murder, in
return for a specified prison term and a specified actual
incarceration time. The agreement also provided that, if respondent
refused to testify "this entire agreement is null and void and the
original charge will be automatically reinstated," and that, "[i]n
the event this agreement becomes null and void, then the parties
shall be returned to the positions they were in before this
agreement." The trial court accepted the plea agreement and
proposed sentence, and respondent testified against the other
individuals, who were convicted of first-degree murder. The Arizona
Supreme Court reversed the latter convictions, remanding for
retrial, and the prosecutor sought respondent's further
cooperation, but was informed that respondent believed his
obligation to testify under the agreement terminated when he was
sentenced. After the trial court refused to compel him to testify
in pretrial proceedings, the State filed a new information charging
him with first-degree murder. The trial court denied his motion to
quash the information on double jeopardy grounds, and the Arizona
Supreme Court, in special proceedings filed by respondent, vacated
his second-degree murder conviction and reinstated the original
charges, holding that the plea agreement contemplated
Page 483 U. S. 2
of his testimony against the other individuals at both trial and
retrial, that he had violated the agreement's terms, and that the
agreement waived the defense of double jeopardy if it was violated.
The State then declined his offer to testify at the other
individuals' retrial, he was convicted of first-degree murder and
sentenced to death, and the judgment was affirmed on appeal. He
then unsuccessfully sought habeas corpus relief in Federal District
Court, but the Court of Appeals ultimately held that the State had
violated his rights under the Double Jeopardy Clause, concluding
that he had not waived such rights by entering into the plea
Respondent's prosecution for first-degree murder
did not violate double jeopardy principles, since his breach of the
plea agreement removed the double jeopardy bar that otherwise would
prevail, assuming that, under state law, second-degree murder is a
lesser included offense of first-degree murder. Pp. 483 U. S.
(a) The record establishes that respondent understood the
meaning of the agreement's provisions concerning the consequences
of his breach of his promise to testify. It is not significant that
"double jeopardy" was not specifically waived by name in the
agreement, since its terms are precisely equivalent to an agreement
waiving a double jeopardy defense. Pp. 483 U. S.
(b) There is no merit to the view that, since there was a good
faith dispute about whether respondent was bound to testify a
second time, there could be no knowing and intelligent waiver of
his double jeopardy defense until the extent of his obligation was
decided. Respondent knew that, if he breached the agreement, he
could be retried, and he chose to seek a construction of the
agreement in the State Supreme Court, rather than to testify at the
retrial. He cannot escape the State Supreme Court's finding that he
had breached his promise to testify, and there was no indication
that he did not fully understand the potential seriousness of the
position he adopted. Cf. United States v. Scott,
437 U. S. 82
483 U. S.
(c) It is of no moment that, following the Arizona Supreme
Court's decision, respondent offered to comply with the terms of
the agreement, since at that point his second-degree murder
conviction had been ordered vacated and the original charge
reinstated. The parties could have agreed that respondent would be
relieved of the consequences of his refusal to testify if he were
able to advance a colorable argument that a testimonial obligation
was not owing, but permitting the State to enforce the agreement
actually made does not violate the Double Jeopardy Clause. P.
483 U. S. 12
789 F.2d 722, reversed.
Page 483 U. S. 3
WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and POWELL, O'CONNOR, and SCALIA, JJ., joined.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL,
BLACKMUN, and STEVENS, JJ., joined, post
p. 483 U. S. 12
JUSTICE WHITE delivered the opinion of the Court.
The question for decision is whether the Double Jeopardy Clause
bars the prosecution of respondent for first-degree murder
following his breach of a plea agreement under which he had pleaded
guilty to a lesser offense, had been sentenced, and had begun
serving a term of imprisonment. The Court of Appeals for the Ninth
Circuit held that the prosecution of respondent violated double
jeopardy principles, and directed the issuance of a writ of habeas
corpus. We reverse.
In 1976, Donald Bolles, a reporter for the Arizona Republic, was
fatally injured when a dynamite bomb exploded underneath his car.
Respondent was arrested and charged with first-degree murder in
connection with Bolles' death. Shortly after his trial had
commenced, while jury selection was underway, respondent and the
state prosecutor reached an agreement whereby respondent agreed to
plead guilty to a charge of second-degree murder and to testify
against two other individuals -- Max Dunlap and James Robison --
who were allegedly involved in Bolles' murder. Specifically,
respondent agreed to
"testify fully and completely in any Court, State or Federal,
when requested by proper authorities
Page 483 U. S. 4
against any and all parties involved in the murder of Don
Bolles. . . ."
789 F.2d 722, 731 (1986). The agreement provided that,
"[s]hould the defendant refuse to testify or should he at any
time testify untruthfully . . . , then this entire agreement is
null and void and the original charge will be automatically
The parties agreed that respondent would receive a prison sentence
of 48-49 years, with a total incarceration time of 20 years and 2
months. In January, 1977, the state trial court accepted the plea
agreement and the proposed sentence, but withheld imposition of the
sentence. Thereafter, respondent testified as obligated under the
agreement, and both Dunlap and Robison were convicted of the
first-degree murder of Bolles. While their convictions and
sentences were on appeal, the trial court, upon motion of the
State, sentenced respondent. In February, 1980, the Arizona Supreme
Court reversed the convictions of Dunlap and Robison and remanded
their cases for retrial. State v. Dunlap,
125 Ariz. 104,
608 P.2d 41
This event sparked the dispute now before us.
The State sought respondent's cooperation and testimony in
preparation for the retrial of Dunlap and Robison. On April 3,
1980, however, respondent's counsel informed the prosecutor that
respondent believed his obligation to provide testimony under the
agreement had terminated when he was sentenced. Respondent would
again testify against Dunlap and Robison only if certain conditions
were met, including, among others, that the State release him from
custody following the retrial. 789 F.2d at 733. [Footnote 2
] The State then
Page 483 U. S. 5
informed respondent's attorney on April 9, 1980, that it deemed
respondent to be in breach of the plea agreement. On April 18,
1980, the State called respondent to testify in pretrial
proceedings. In response to questions, and upon advice of counsel,
respondent invoked his Fifth Amendment privilege against
self-incrimination. The trial judge, after respondent's counsel
apprised him of the State's letter of April 9 indicating that the
State considered respondent to be in breach of the plea agreement,
refused to compel respondent to answer questions. The Arizona
Supreme Court declined to accept jurisdiction of the State's
petition for special action to review the trial judge's
On May 8, 1980, the State filed a new information charging
respondent with first-degree murder. Respondent's motion to quash
the information on double jeopardy grounds was denied. Respondent
challenged this decision by a special action in the Arizona Supreme
Court. That court, after reviewing the plea agreement, the
transcripts of the plea hearing and the sentencing hearing,
respondent's April 3 letter to the state prosecutor, and the
prosecutor's April 9 response to that letter, held with "no
hesitation" that "the plea agreement contemplates availability of
[respondent's] testimony whether at trial or retrial after
reversal," Adamson v. Superior Court of Arizona,
579, 583, 611 P.2d 932
936 (1980), and that respondent "violated the terms of the plea
] The court also rejected respondent's
Page 483 U. S. 6
double jeopardy claim, holding that the plea agreement, "by its
very terms, waives the defense of double jeopardy if the agreement
is violated." Id.
at 584, 611 P.2d at 937. Finally,
Page 483 U. S. 7
the court held that, under state law and the terms of the plea
agreement, the State should not have filed a new information, but
should have merely reinstated the initial charge. Accordingly, the
court vacated respondent's second-degree murder conviction,
reinstated the original charge, and dismissed the new
After these rulings, respondent offered to testify at the
retrials, but the State declined his offer. Respondent sought
federal habeas relief, arguing that the Arizona Supreme Court had
misconstrued the terms of the plea agreement. The District Court
dismissed his petition, the Court of Appeals for the Ninth Circuit
affirmed, Adamson v. Hill,
667 F.2d 1030 (1981), and we
denied respondent's petition for a writ of certiorari. 455 U.S. 992
Respondent was then convicted of first-degree murder and
sentenced to death. The judgment was affirmed on direct appeal,
State v. Adamson,
136 Ariz. 250, 665 P.2d
, and we denied certiorari. 464 U.S. 865 (1983). Respondent
sought federal habeas corpus for the second time, asserting a
number of claims relating to his trial and sentence. The District
Court dismissed the petition; a Court of Appeals panel affirmed.
758 F.2d 441 (1985). The Court of Appeals went en banc, held that
the State had violated respondent's rights under the Double
Jeopardy Clause, and directed the issuance of a writ of habeas
corpus. The en banc opinion reasoned that respondent had not waived
his double jeopardy rights by entering into the plea agreement,
"[i]t may well be argued that the only manner in which
[respondent] could have made an intentional relinquishment of a
known double jeopardy right would be by waiver 'spread on the
record' of the court after an adequate explanation."
789 F.2d at 728 (citing Boykin v. Alabama, 395 U.
, 395 U. S. 242
(1969)). Even if double jeopardy rights could be waived by
implication, no such waiver occurred here, since
Page 483 U. S. 8
that charges may be reinstituted under certain circumstances is
not equivalent to agreeing that, if they are reinstituted a double
jeopardy defense is waived."
789 F.2d at 728. Finally, the court stated that, even were the
agreement read to waive double jeopardy rights impliedly, no waiver
was effected here, because a "defendant's action constituting the
breach must be taken with the knowledge that, in so doing, he
waives his double jeopardy rights." Id.
at 729. Because
there was a "reasonable dispute as to [respondent's] obligation to
testify," the court continued, "there could be no knowing or
intentional waiver until his obligation to testify was announced by
the court." Ibid.
The dissenting judges emphasized that
respondent's refusal to testify triggered the second prosecution
and the Double Jeopardy Clause "does not relieve a defendant
from the consequences of his voluntary choice.'" Id. at
740 (Brunetti, J., dissenting) (quoting United States v.
Scott, 437 U. S. 82,
437 U. S. 99
(1978)). We granted the State's petition for a writ of certiorari
to review the Court of Appeals' decision that the Double Jeopardy
Clause barred prosecution of respondent for first-degree murder.
479 U.S. 812 (1986).
We may assume that jeopardy attached at least when respondent
was sentenced in December, 1978, on his plea of guilty to
second-degree murder. Assuming also that, under Arizona law,
second-degree murder is a lesser included offense of first-degree
murder, the Double Jeopardy Clause, absent special circumstances,
] would have
precluded prosecution of respondent for the greater charge on which
he now stands convicted. Brown v. Ohio, 432 U.
, 432 U. S. 168
(1977). The State submits, however, that respondent's breach of the
plea arrangement to which the parties had agreed removed the double
jeopardy bar to prosecution of respondent on the first-degree
murder charge. We agree with the State.
Page 483 U. S. 9
Under the terms of the plea agreement, both parties bargained
for and received substantial benefits. [Footnote 5
] The State obtained respondent's guilty plea
and his promise to testify against "any and all parties involved in
the murder of Don Bolles" and in certain specified other crimes.
789 F.2d at 731. Respondent, a direct participant in a premeditated
and brutal murder, received a specified prison sentence accompanied
with a guarantee that he would serve actual incarceration time of
20 years and 2 months. He further obtained the State's promise that
he would not be prosecuted for his involvement in certain other
The agreement specifies in two separate paragraphs the
consequences that would flow from respondent's breach of his
promises. Paragraph 5 provides that, if respondent refused to
testify, "this entire agreement is null and void, and the original
charge will be automatically
(emphasis added). Similarly, Paragraph 15 of the agreement states
"[i]n the event this agreement becomes null and void, then the
parties shall be returned to the positions they were in before this
at 732. Respondent unquestionably understood the
meaning of these provisions. At the plea hearing, the trial judge
read the plea agreement to respondent, line by line, and pointedly
asked respondent whether he understood the provisions in Paragraphs
5 and 15. Respondent replied "Yes, sir," to each question. App.
23-24, 28-29. On this score, we do not find it significant, as did
the Court of Appeals, that "double jeopardy" was not specifically
waived by name in the plea agreement. Nor are we persuaded by the
court's assertion that
"[a]greeing that charges may be reinstituted . . . is not
equivalent to agreeing
Page 483 U. S. 10
that, if they are reinstituted, a double jeopardy defense is
789 F.2d at 728. The terms of the agreement could not be
clearer: in the event of respondent's breach occasioned by a
refusal to testify, the parties would be returned to the status
in which case respondent would have no double
jeopardy defense to waive. And an agreement specifying that charges
may be reinstated
given certain circumstances is, at least
under the provisions of this plea agreement, precisely
equivalent to an agreement waiving a double jeopardy defense. The
approach taken by the Court of Appeals would render the agreement
meaningless: first-degree murder charges could not be reinstated
against respondent if he categorically refused to testify after
sentencing, even if the agreement specifically provided that he
would so testify, because, under the Court of Appeals' view, he
never waived his double jeopardy protection. Even respondent,
however, conceded at oral argument that "a waiver could be found
under those circumstances. . . ." Tr. of Oral Arg. 42-43.
We are also unimpressed by the Court of Appeals' holding that
there was a good faith dispute about whether respondent was bound
to testify a second time, and that, until the extent of his
obligation was decided, there could be no knowing and intelligent
waiver of his double jeopardy defense. But respondent knew that, if
he breached the agreement, he could be retried, and it is
incredible to believe that he did not anticipate that the extent of
his obligation would be decided by a court. Here he sought a
construction of the agreement in the Arizona Supreme Court, and
that court found that he had failed to live up to his promise. The
result was that respondent was returned to the position he occupied
prior to execution of the plea bargain: he stood charged with
first-degree murder. Trial on that charge did not violate the
Double Jeopardy Clause. United States v. Scott,
437 U. S. 82
(1978), supports this conclusion.
Page 483 U. S. 11
At the close of all the evidence in Scott,
judge granted defendant's motion to dismiss two counts of the
indictment against him on the basis of preindictment delay. This
Court held that the Double Jeopardy Clause did not bar the
Government from appealing the trial judge's decision, because,
"in a case such as this, the defendant, by deliberately choosing
to seek termination of the proceedings against him on a basis
unrelated to factual guilt or innocence of the offense of which he
was accused, suffers no injury cognizable under the Double Jeopardy
Clause. . . ."
at 437 U. S. 98
The Court reasoned further that "the Double Jeopardy Clause . . .
does not relieve a defendant from the consequences of his voluntary
choice." The "voluntary choice" to which the Scott
referred was the defendant's decision to move for dismissal of two
counts of the indictment, seeking termination of that portion of
the proceedings before the empaneled jury, rather than facing the
risk that he might be convicted if his case were submitted to the
jury. The respondent in this case had a similar choice. He could
submit to the State's request that he testify at the retrial, and
in so doing risk that he would be providing testimony that,
pursuant to the agreement, he had no obligation to provide, or he
could stand on his interpretation of the agreement, knowing that,
if he were wrong, his breach of the agreement would restore the
parties to their original positions and he could be prosecuted for
first-degree murder. Respondent chose the latter course, and the
Double Jeopardy Clause does not relieve him from the consequences
of that choice.
Respondent cannot escape the Arizona Supreme Court's
interpretation of his obligations under the agreement. The State
did not force the breach; respondent chose, perhaps for strategic
reasons or as a gamble, to advance an interpretation of the
agreement that proved erroneous. And there is no indication that
respondent did not fully understand the potential seriousness of
the position he adopted. In the April 3 letter, respondent's
counsel advised the prosecutor
Page 483 U. S. 12
"is fully aware of the fact that your office may feel that he
has not completed his obligations under the plea agreement . . .
and, further, that your office may attempt to withdraw the plea
agreement from him, [and] that he may be prosecuted for the killing
of Donald Bolles on a first degree murder charge."
789 F.2d at 733. This statement of respondent's awareness of the
operative terms of the plea agreement only underscores that which
respondent's plea hearing made evident: respondent clearly
appreciated and understood the consequences were he found to be in
breach of the agreement.
Finally, it is of no moment that, following the Arizona Supreme
Court's decision, respondent offered to comply with the terms of
the agreement. At this point, respondent's second-degree murder
conviction had already been ordered vacated, and the original
charge reinstated. The parties did not agree that respondent would
be relieved from the consequences of his refusal to testify if he
were able to advance a colorable argument that a testimonial
obligation was not owing. The parties could have struck a different
bargain, but permitting the State to enforce the agreement the
parties actually made does not violate the Double Jeopardy
The judgment of the Court of Appeals is reversed.
It is so ordered.
The agreement further provided that, in the event respondent
refused to testify, he
"will be subject to the charge of Open Murder, and if found
guilty of First Degree Murder, to the penalty of death or life
imprisonment requiring mandatory twenty-five years actual
incarceration, and the State shall be free to file any charges, not
yet filed as of the date of this agreement."
789 F.2d at 731.
Respondent's other conditions -- which he characterized as
"demands" -- included that he be held in a nonjail facility with
protection during the retrials, that he be provided with new
clothing, that protection be afforded his ex-wife and son, that a
fund be provided for his son's education, that he be given adequate
resources to establish a new identity outside Arizona following his
release from custody, and that he be granted "full and complete
immunity for any and all crimes in which he may have been
The Arizona Supreme Court noted that, at oral argument,
respondent explained for the first time the basis for his refusal
to testify. Respondent relied on Paragraph 8 of the plea agreement,
"All parties to this agreement hereby waive the time for
sentencing and agree that the defendant will be sentenced at the
conclusion of his testimony in all of the cases referred to in this
agreement. . . ."
In rejecting respondent's contention that this provision
relieved him from his obligation to testify after he had already
been sentenced, the court referred to the colloquy that occurred at
the sentencing hearing. At that hearing, the prosecuting attorney
stated that he had discussed with respondent's counsel the fact
"that it may be necessary in the future to bring [respondent] back
after sentencing for further testimony." 125 Ariz. at 583, 611 P.2d
at 936. Respondent's counsel indicated that they understood that
future testimony may be necessary. The court concluded that
whatever doubt was created by Paragraph 8 regarding respondent's
obligation to testify after sentencing, the colloquy at the
sentencing hearing evinced a "clear understanding" that respondent
would be so obligated. Ibid.
Respondent argued in the
Court of Appeals -- and renews the argument here -- that the
"further testimony" mentioned by the prosecutor at the sentencing
hearing referred to testimony in a wholly separate prosecution that
had yet to be tried. We will not second-guess the Arizona Supreme
Court's construction of the language of the plea agreement. While
we assess independently the plea agreement's effect on respondent's
double jeopardy rights, the construction of the plea agreement and
the concomitant obligations flowing therefrom are, within broad
bounds of reasonableness, matters of state law, and we will not
disturb the Arizona Supreme Court's reasonable disposition of those
issues. The dissent's discourse on the law of contracts is thus
illuminating, but irrelevant. The questions whether the plea
agreement obligated the respondent to testify at the retrial of
Dunlap and Robison and, if so, whether the respondent breached this
duty are matters appropriately left to the state courts. The
dissent acknowledges that "deference to the Arizona Supreme Court's
construction is appropriate," post
at 483 U. S. 13
1, but proceeds to engage in plenary review of that court's holding
that the respondent breached the agreement. The dissent does not
explain the nature of the deference it purports to afford the state
courts, and one is unable to detect any such deference in the
approach the dissent advocates. And the dissent misconceives the
interrelationship between the construction of the terms of the plea
agreement and the respondent's assertion of a double jeopardy
defense. As noted previously, once a state court has, within broad
bounds of reasonableness, determined that a breach of a plea
agreement results in certain consequences, a federal habeas court
must independently assess the effect of those consequences on
federal constitutional rights. This independent assessment,
however, proceeds without second-guessing the finding of a breach,
and is not a license to substitute a federal interpretation of the
terms of a plea agreement for a reasonable state
See, e.g., Ohio v. Johnson, 467 U.
(1984); Jeffers v. United States,
432 U. S. 137
432 U. S. 152
We have observed that plea agreements are neither
constitutionally compelled nor prohibited; they
"are consistent with the requirements of voluntariness and
intelligence -- because each side may obtain advantages when a
guilty plea is exchanged for sentencing concessions, the agreement
is no less voluntary than any other bargained-for exchange."
Mabry v. Johnson, 467 U. S. 504
467 U. S. 508
JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN,
and JUSTICE STEVENS join, dissenting.
The critical question in this case is whether Adamson ever
breached his plea agreement. Only by demonstrating that such a
breach occurred can it plausibly be argued that Adamson waived his
rights under the Double Jeopardy Clause. By simply assuming that
such a breach occurred, the Court ignores the only important issue
in this case.
I begin by demonstrating that, even if one defers to the Arizona
Supreme Court's construction of the plea agreement, one must
conclude that Adamson never breached that agreement.
Page 483 U. S. 13
I then show that, absent a conscious decision by Adamson to
breach his agreement, our cases provide no support for the Court's
conclusion that he has waived his rights under the Double Jeopardy
At the heart of this case is a plea bargain, an agreement to be
interpreted in a constitutional context. We are asked to define the
constitutional rights and responsibilities that arise from the
language of that agreement, from the Due Process Clause of the
Fourteenth Amendment, and from the Double Jeopardy Clause of the
Fifth Amendment. The Court correctly observes that it must "assess
independently the plea agreement's effect on respondent's double
jeopardy rights." Ante
at 483 U. S. 6
, n. 3.
I think that the Court errs, however, in concluding that its
assessment can proceed without an independent examination, informed
by due process principles, of Adamson's actions under that
Deferring to the Arizona Supreme Court's
construction of the agreement cannot relieve the Court of its
responsibility to determine whether, in light of that construction,
Adamson can be held to have lost his federal constitutional
protection against being placed twice in jeopardy. The requirements
of due process have guided this Court in evaluating the promises
and conduct of state prosecutors in securing a guilty plea.
Santobello v. New York, 404 U. S. 257
(1971). There is no reason to ignore those requirements here.
Without disturbing the conclusions of the Arizona Supreme Court
as to the proper construction of the plea agreement, [Footnote 2/1
Page 483 U. S. 14
one may make two observations central to the resolution of this
case. First, the agreement does not contain an explicit waiver of
all double jeopardy protection. [Footnote 2/2
] Instead, the Arizona Supreme Court found
in the language of �� 5 and 15 of the agreement only an
waiver of double jeopardy protection which was
on an act by Adamson that breached the
agreement, such as refusing to testify as it required. Adamson
v. Superior Court of Arizona,
125 Ariz. 579, 584, 611 P.2d 932
937 (1980). Therefore, any finding that Adamson lost his protection
against double jeopardy must be predicated on a finding that
Adamson breached his agreement.
Second, Adamson's interpretation of the agreement -- that he was
not required to testify at the retrials of Max Dunlap and James
Robison -- was reasonable. Nothing in the plea agreement explicitly
stated that Adamson was required to provide testimony should
retrials prove necessary. Moreover, the agreement specifically
referred in two separate paragraphs to events that would occur only
after the conclusion of all testimony that Adamson would be
required to give. Paragraph 8 stated that Adamson
"will be sentenced
at the conclusion of his testimony
in all of the cases referred to in this agreement and Exhibits A
and B, which accompany it."
789 F.2d 722, 732 (CA9 1986) (emphasis added). At the
Page 483 U. S. 15
time that the State demanded that Adamson testify in the
retrials, he had been sentenced. Paragraph 18 stated that
"[t]he defendant is to remain in the custody of the Pima County
Sheriff from the date of the entry of his plea until the conclusion
of his testimony in all of the cases in which the defendant agrees
to testify as a result of this agreement."
At the time the State demanded that Adamson
testify in the retrials, Adamson had been transferred from the
custody of the Pima County Sheriff. Adamson therefore could
reasonably conclude that he had provided all the testimony required
by the agreement, and that, as he communicated to the State by
letter of April 3, 1980, the testimony demanded by the State went
beyond his duties under the agreement. [Footnote 2/3
] The Arizona Supreme Court rejected
Adamson's construction. But even deferring to the state court's
view that Adamson's interpretation was erroneous, one must also
agree with the en banc Court of Appeals that Adamson's
interpretation of the agreement was "reasonabl[e]," and was
supported by the plain language of the agreement, "[l]ogic, and
common sense." Id.
In sum, Adamson could lose his protection against double
jeopardy only by breaching his agreement, and Adamson's
interpretation of his responsibilities under the agreement, though
erroneous, was reasonable. The next step in the analysis is to
determine whether Adamson ever breached his agreement. [Footnote 2/4
Page 483 U. S. 16
This Court has yet to address in any comprehensive way the rules
of construction appropriate for disputes involving plea agreements.
Nevertheless, it seems clear that the law of commercial contract
may in some cases prove useful as an analogy or point of departure
in construing a plea agreement, or in framing the terms of the
debate. E.g., Blackledge v. Allison, 431 U. S.
, 431 U. S. 75
6 (1977). It is also clear, however, that commercial contract law
can do no more than this, because plea agreements are
constitutional contracts. The values that underlie commercial
contract law, and that govern the relations between economic
actors, are not coextensive with those that underlie the Due
Process Clause, and that govern relations between criminal
defendants and the State. Unlike some commercial contracts, plea
agreements must be construed in light of the rights and obligations
created by the Constitution.
The State argues and the Arizona Supreme Court seems to imply
that a breach occurred when Adamson sent his letter of April 3,
1980, to the prosecutor in response to the State's demand for his
testimony at the retrials of Dunlap and Robison. See ante
at 483 U. S. 5
this letter, Adamson stated that, under his interpretation of the
agreement, he was no longer obligated to testify, and demanded
additional consideration for any additional testimony.
at 483 U. S. 4
Neither the State, the state courts, nor this Court has
attempted to explain why this letter constituted a breach of the
agreement. [Footnote 2/5
course, it could not plausibly be argued that
Page 483 U. S. 17
merely sending such a letter constituted a breach by
nonperformance, for nothing in the plea agreement states that
Adamson shall not disagree with the State's interpretation of the
plea agreement, or that Adamson shall not send the State a letter
to that effect. [Footnote 2/6
argue that, in the language of commercial
contract law, the letter constituted a breach by anticipatory
Tr. of Oral Arg. 32-33. Such a breach
occurs when one party unequivocally informs the other that it no
longer intends to honor their contract.
"[W]here the contract is renounced before performance is due,
and the renunciation goes to the whole contract, is absolute and
unequivocal, the injured party may treat the breach as complete,
and bring his action at once."
Roehm v. Horst, 178 U. S. 1
178 U. S. 7
(1900). [Footnote 2/7
] The reason
for the rule is plain: "announcing [one's] purpose to default"
destroys the assurance of future performance that is central to a
commercial contract. [Footnote
Page 483 U. S. 18
In the conventional case of anticipatory repudiation, therefore,
the announcement of an intention to default on the contract
constitutes a breach. [Footnote
] In his letter of April 3, however, Adamson did not
announce such an intention. To the contrary, Adamson
the integrity of that agreement as a defense to
what he perceived to be an unwarranted demand by the prosecutor
that he testify at the retrials of Dunlap and Robison. And in
insisting that he had no obligation to perform as the State
demanded, Adamson advanced an objectively reasonable interpretation
of his contract.
We have held in the commercial sphere that a letter of the sort
that Adamson sent does not constitute anticipatory repudiation. In
New York Life Ins. Co. v. Viglas, 297 U.
(1936), the Court addressed the question whether
an insurance company's notification
to a policyholder that
it would henceforth refuse to continue paying disability benefits
constituted a breach of the contract. The Court ultimately found
that the company's subsequent action
to stop payment
constituted a breach of the agreement, noting that the insurance
company's refusal was based on unfounded facts. Id.
297 U. S. 678
But the Court held that the notification alone did not constitute a
breach by repudiation. As Justice Cardozo explained, for a
"Repudiation there was none as the term is known to the law.
Petitioner did not disclaim the intention or the
Page 483 U. S. 19
duty to shape its conduct in accordance with the provisions of
the contract. Far from repudiating those provisions, it appealed to
their authority and endeavored to apply them. . . . There is
nothing to show that the insurer was not acting in good faith in
giving notice of its contention that the disability was over."
at 297 U. S. 676
The law has been settled since Viglas
"[a]n offer to perform in accordance with the promisor's
interpretation of the contract, although erroneous, if made in good
faith, is not such a clear and unequivocal refusal to perform as
amounts to a renunciation giving rise to an anticipatory
Kimel v. Missouri State Life Ins. Co.,
71 F.2d 921, 923
(CA10 1934). [Footnote 2/10
the court in Kimel
"If this were not the law, it would be a dangerous thing to
stand upon a controverted construction of a contract. Every man
would act at his peril in such cases, and be subjected to the
alternative of acquiescing in the interpretation adopted by his
opponent or putting to hazard his entire interest in the contract.
The courts have never imposed terms so harsh, or burdens of such
weight. It would amount to a virtual denial of the right to insist
upon an honest, but erroneous, interpretation."
Adamson has done no more here to repudiate his plea agreement
than did the New York Life Insurance Company in Viglas,
the Missouri State Life Insurance Company in Kimel.
his lawyers were informed, by telephone, of the State's view that
his plea agreement obligated him to testify, he responded with a
letter advancing his own reasonable interpretation of the
agreement. Although the area of
Page 483 U. S. 20
breach by repudiation, like other areas of commercial contract
law, is not free from ambiguity, [Footnote 2/11
] it seems plain that, even under
commercial contract principles, Adamson did not breach his
Of course, far from being a commercial actor, Adamson is an
individual whose "contractual" relation with the State is governed
by the Constitution. The determination of Adamson's rights and
responsibilities under the plea agreement is controlled by the
principles of fundamental fairness imposed
Page 483 U. S. 21
by the Due Process Clause. To grant to one party -- here, the
State -- the unilateral and exclusive right to define the meaning
of a plea agreement is patently unfair. Moreover, such a grant is
at odds with the basic premises that underlie the constitutionality
of the plea-bargaining system. Guilty pleas are enforceable only if
taken voluntarily and intelligently. E.g., Boykin v.
Alabama, 395 U. S. 238
(1969). It would be flatly inconsistent with these requirements to
uphold as intelligently made a plea agreement which provided that,
in the future, the agreement would mean whatever the State
interpreted it to mean. Yet the Court upholds today the equivalent
of such an agreement. The logic of the plea-bargaining system
requires acknowledgment and protection of the defendant's right to
advance against the State a reasonable interpretation of the plea
This right requires no exotic apparatus for enforcement. Indeed,
it requires nothing more than common civility. If the defendant
offers an interpretation of a plea agreement at odds with that of
the State, the State should notify the defendant of this fact,
particularly if the State is of the view that continued adherence
to defendant's view would result in breach of the agreement. If the
State and the defendant are then unable to resolve their dispute
through further discussion, a ready solution exists -- either party
may seek to have the agreement construed by the court in which the
plea was entered. By following these steps, the State would have
placed far fewer demands on the judicial process than were in fact
imposed here, and would have fulfilled its constitutional
obligation to treat all persons with due respect.
The unfairness of the Court's decision does not end here. Even
if one assumes, arguendo,
that Adamson breached his plea
agreement by offering an erroneous interpretation of that
agreement, it still does not follow that the State was entitled to
retry Adamson on charges of first-degree murder.
Page 483 U. S. 22
As the Court acknowledges, ante
at 483 U. S. 7
immediately following the decision of the Arizona Supreme Court
adopting the State's construction of the plea agreement, Adamson
sent a letter to the State stating that he was ready and willing to
testify. [Footnote 2/12
] At this
point, there was no obstacle to proceeding with the retrials of
Dunlap and Robison; each case had been dismissed without prejudice
to refiling, and only about one month's delay had resulted from the
dispute over the scope of the plea agreement. Thus, what the State
sought from Adamson -- testimony in the Dunlap and Robison trials
-- was available to it.
The State decided instead to abandon the prosecution of Dunlap
and Robison, and to capitalize on what it regarded as Adamson's
breach by seeking the death penalty against him. No doubt it seemed
easier to proceed against Adamson at that point, since the State
had the benefit of his exhaustive testimony about his role in the
murder of Don Bolles. But even in the world of commercial
contracts, it has long been settled that the party injured by a
breach must nevertheless take all reasonable steps to minimize the
consequent damage. One prominent commentator has explained the rule
in this way:
"If the victim of a breach can protect himself from its
consequences, he must do so. He has a duty to mitigate damages. . .
. This is a duty, a kind of altruistic duty, toward's one's
contractual partner, the more altruistic that it is directed to a
partner in the wrong. But it is a duty without cost, since the
victim of the breach is never worse off for having mitigated.
Rather it is a duty that recognizes that contractual duties are
onerous enough that they should not be needlessly exacerbated."
C. Fried, Contract as Promise 131 (1981) (footnote omitted).
Page 483 U. S. 23
Here it is macabre understatement to observe that the State
needlessly exacerbated the liability of its contractual partner.
The State suffered a 1-month delay in beginning the retrial of
Dunlap and Robison, and incurred litigation costs. For these
"losses," the State chose to make Adamson pay, not with a longer
sentence, but with his life. A comparable result in commercial law,
if one could be imagined, would not be enforced. The fundamental
unfairness in the State's course of conduct here is even less
acceptable under the Constitution. [Footnote 2/13
In addition to abdicating its responsibility to consider
carefully the contractual and due process elements of this case,
the Court does violence to the only area of constitutional law that
it does address, double jeopardy. The Double Jeopardy Clause states
that "No person shall . . . be subject for the same offence to be
twice put in jeopardy of life or limb." The Court's explanation of
how Adamson has waived this protection is unsupported by case law
"A waiver is ordinarily an intentional relinquishment or
abandonment of a known right or privilege." Johnson v.
Zerbst, 304 U. S. 458
304 U. S. 464
(1938). Because we "indulge every reasonable presumption
against waiver' of fundamental constitutional rights,"
ibid., we generally will enforce only those waivers that
are knowing, intelligent, and voluntary. In certain circumstances,
however, the Court has enforced waivers of the double jeopardy
rights that would not meet this standard. For example, the Double
Jeopardy Clause has been held not to bar retrial of a defendant
Page 483 U. S. 24
successfully moves for a mistrial. United States v.
Dinitz, 424 U. S. 600
(1976). In Dinitz,
the Court reasoned that
"[t]he important consideration, for purposes of the Double
Jeopardy Clause, is that the defendant retain primary control over
the course to be followed in the event of [prejudicial
prosecutorial or judicial] error."
at 424 U. S. 609
In such circumstances,
"a defendant might well consider an immediate new trial a
preferable alternative to the prospect of a probable conviction
followed by an appeal, a reversal of the conviction, and a later
at 424 U. S.
In United States v. Scott, 437 U. S.
(1978), the Court extended the logic of
to cases in which the defendant successfully moved
to dismiss the indictment "on a basis unrelated to factual guilt or
innocence of the offense of which he is accused." 437 U.S. at
437 U. S. 98
Two reasons supported the judgment. First, as in Dinitz,
the defendant, in choosing to move to dismiss, retained control
over the proceedings. 437 U.S. at 437 U. S. 93
437 U. S. 98
Second, even though dismissal, unlike a mistrial, resulted in a
final judgment normally held to bar reprosecution, the Court found
it crucial that the proceedings had ended in midtrial, hence
"without any submission to either judge or jury as to [defendant's]
guilt or innocence." Id.
at 437 U. S.
"[In this situation, the defendant] has not been 'deprived' of
his valued right to go to the first jury; only the public has been
deprived of its valued right to 'one complete opportunity to
convict those who have violated its laws.' Arizona v.
434 U.S. [497, 434 U. S.
at 437 U. S.
The Court today relies exclusively on the first rationale of
United States v. Scott.
It argues that, because Adamson
fully understood the implications of breaching his agreement and
made a voluntary choice to breach that agreement, he may be held to
the consequences of his choice.
alone cannot support the decision here. First,
Adamson obviously did not retain control over the course of
Page 483 U. S. 25
the proceedings against him. The unexamined assumption of the
Court's claim that he did, of course, is that Adamson made a
voluntary decision to breach his agreement. For Adamson to have
retained control comparable to the control evident in moving for a
mistrial or a dismissal, he would have had to have deliberately
chosen to breach his agreement. But he never made such a choice.
Indeed, as discussed in 483 U. S.
Adamson never breached his agreement at all. But
even assuming that his actions could, in hindsight, be strictly
construed to constitute a breach, it is plain that Adamson never
took any act that he knew or realized would constitute a breach of
the agreement. As a result, the Court's argument that Adamson
waived the protection of the Double Jeopardy Clause is untenable.
Even under Scott,
such protection cannot be lost through
Second, this case does not involve a midtrial decision by a
defendant to terminate the trial. It is therefore not a case in
which the public has been deprived of its valued right to one
complete opportunity to convict someone charged with breaking the
law. Unlike Dinitz, and unlike Scott, Adamson had
guilt determined by a court prior to the alleged waiver of double
jeopardy. As the Court reiterated in Scott,
purpose of the Double Jeopardy Clause was to protect the integrity
of a final judgment." 437 U.S. at 437 U. S. 92
The comparatively limited extent to which Scott
the integrity of a final judgment is itself unique in double
jeopardy jurisprudence. See id.
at 437 U. S. 109
n. 6 (BRENNAN, J., dissenting). But in carving out a limited
exception for certain final judgments (those entered in midtrial on
grounds other than factual guilt or innocence), the Court in
offered no reasoning that could be used to undercut
the integrity of final judgments as to guilt.
Adamson's interest in protecting the final judgment as to his
guilt was substantial. That interest could be protected without
compromising society's right to one complete opportunity to obtain
a conviction. Adamson did not consciously
Page 483 U. S. 26
take any action that would undermine the integrity of that
judgment -- he did not deliberately choose to breach his plea
agreement. Therefore, even if we construe his agreement to contain
an implied waiver of double jeopardy protection in the event of a
breach, Adamson cannot be held to have waived that protection.
The Court's decision flouts the law of contract, due process,
and double jeopardy. It reflects a world where individuals enter
agreements with the State only at their peril, where the
Constitution does not demand of the State the minimal good faith
and responsibility that the common law imposes on commercial
enterprises, and where, in blind deference to state courts and
prosecutors, this Court abdicates its duty to uphold the
Constitution. I dissent.
Although in text my argument proceeds on the assumption that
deference to the Arizona Supreme Court's construction is
appropriate, I note here my view that its construction is premised
on an interpretive method that is obviously biased and unfair. In
rejecting Adamson's interpretation of the agreement, the Arizona
Supreme Court relied not on the plain language of the agreement,
which offers the State only modest support, but rather on a
colloquy that occurred at the time Adamson's plea was taken.
at 483 U. S. 5
3. Yet at the same time that the court went outside "the four
corners of the document" in order to uphold the State's view, it
denied Adamson's request to introduce other evidence that he
maintained would demonstrate that, at the time of sentencing, the
State shared Adamson's understanding of the agreement.
In these circumstances, the Court of Appeals would
have been justified in remanding for the evidentiary hearing denied
Adamson in state court, and thereafter independently construing the
Nowhere in the agreement do the words "double jeopardy" appear.
Significantly, � 17 of the agreement, which lists the "rights"
which Adamson "underst[ood] that he [gave] up . . . by pleading
guilty," does not mention the right not to be placed twice in
jeopardy. 789 F.2d 722, 732 (CA9 1986) (reprinting agreement in
Prior to sentencing, Adamson had provided extensive testimony
for the State. He testified that he had
"made 14 court appearances . . . on five separate cases
consisting of approximately 31 days of testimony. . . . Of the 81
or so jurors who have heard my testimony, all have returned guilty
verdicts in each case, resulting in seven convictions. I have been
cross-examined under oath for approximately 190 hours . . . by 22
different attorneys. . . . I have cooperated in approximately 205
interrogative sessions. . . . Fifty-five of these have been formal
face-to-face in-depth question and answer sessions,
It is important to recall that the Court only assumes that such
a breach occurred. As I observed at the outset, there is no
justification for such an assumption -- only by examining whether
the alleged breach occurred can the Court "assess independently the
plea agreement's effect on respondent's double jeopardy rights."
at 483 U. S. 6
, n. 3.
See 483 U. S.
The Arizona Supreme Court stated only that "[t]he record before
us is replete with indications of petitioner's refusal to testify
further in the Bolles murder cases." Adamson v. Superior Court
125 Ariz. 579, 582, 611 P.2d 932
935 (1980). Although the court did not identify what those
"indications" were, there appears to be only one other event
(besides Adamson's letter of April 3) to which it could have
referred. On April 18, 1980, Adamson was called to testify in
proceedings prior to the retrial of Dunlap and Robison.
at 483 U. S. 5
did not testify, but instead invoked his Fifth Amendment privilege.
As this Court recounts, Adamson invoked this privilege because the
prosecutor had informed him, by letter of April 9, 1980, that the
considered him in breach of his plea
agreement, and therefore vulnerable to reprosecution.
At the pretrial hearing, the trial judge, apprised
of the plea agreement and of the State's letter, refused to grant
the State's motion to compel testimony. The trial judge ruled
correctly. Once the State declared that Adamson had breached his
agreement, and that the State no longer was bound by the agreement,
it relinquished any right it otherwise would have had to demand
that Adamson continue to adhere to that agreement, i.e.,
to testify. Therefore, while Adamson did indeed refuse to testify
on April 18, he did not thereby breach his agreement.
Indeed, at oral argument, the United States, arguing as
on behalf of the State, conceded that the
agreement did not bar a good faith challenge. Tr. of Oral
Restatement (Second) of Contracts § 250 (1981);
Uniform Commercial Code § 2-610, 1A U.L.A. 321 (1976 and
Supp.1987); J. White & R. Summers, Uniform Commercial Code
212-214 (1980); 4 A. Corbin, Contracts § 973 (1951); 2 S.
Williston, Contracts §§ 1322, 1323 (3d ed.1968).
Equitable Trust Co. v. Western Pacific R. Co.,
485, 502 (SDNY 1917) (L. Hand, J.), aff'd,
250 F. 327
(CA2), cert. denied,
246 U.S. 672 (1918).
The classic case is Hochster v. De la Tour,
2 El. &
Bl. 678, 118 Eng.Rep. 922 (Q.B. 1853), from which the doctrine of
breach by anticipatory repudiation evolved. In that case, De la
Tour first contracted to hire Hochster, then, prior to the starting
date of employment, sent Hochster a letter stating that his
services would not be needed. The court held that the letter
constituted a breach of the contract, and that Hochster did not
need to wait until after the starting date to bring suit. In
Roehm v. Horst,
this Court discussed Hochster
length, and concluded that it provided "a reasonable and proper
rule to be applied in this case and in many others." 178 U.S. at
178 U. S. 20
Commentators continue to draw on Hochster
the principle. E.g.,
C. Fried, Contract as Promise
128-130, and n. 25 (1981).
§§ 1322, 1323,
pp. 132-133, 136-138 ("[A]n erroneous interpretation, asserted in
good faith, will not amount to a breach"); Corbin, supra,
§ 973, p. 911 ("Where the two contracting parties differ as to the
interpretation of the contract or as to its legal effects, an offer
to perform in accordance with his own interpretation made by one of
the parties is not in itself an anticipatory breach").
Since New York Life Ins. Co. v. Viglas, 297 U.
(1936), courts and commentators have attempted to
refine the distinction between advancing a reasonable (but
erroneous) interpretation of a contract and repudiating a contract.
For example, one court has held that repudiation occurs when a
party has "persistently
demanded an unwarranted condition
precedent to its required performance," and thereby evinces a lack
of good faith. Pacific Coast Engineering Co. v. Merritt-Chapman
& Scott Corp.,
411 F.2d 889, 895-896 (CA9 1969) (emphasis
added). Others have interpreted the rule expansively. E.g.,
Bill's Coal Co. v. Board of Public Utilities,
682 F.2d 883,
886 (CA10 1982) (upholding party's right to urge even a "bad faith"
interpretation of a clause without thereby causing breach).
Alluding to the difficulty of determining when an erroneous
interpretation of a contract has been offered in "good faith," one
commentator has recommended abandoning Viglas
in favor of
a standard of strict liability, under which any person who advances
an interpretation that ultimately proves erroneous may be held to
have repudiated the contract. See
E. Farnsworth, Contracts
634-636 (1982). By contrast, another commentator who has
acknowledged that same difficulty has nevertheless recognized that
"the parties must communicate to clarify or modify the agreement to
compensate for defects in the agreement process," and has therefore
"[t]he law . . . be structured to encourage the parties to work
out [disagreements over the meaning of the contract] whenever
possible through good faith renegotiation and modification; it
cannot hope to achieve this goal if good faith requests for
modification are treated as repudiation."
Rosett, Partial, Qualified, and Equivocal Repudiation of
Contract, 81 Colum.L.Rev. 93, 108 (1981) (footnote omitted). Of
course, even if a policy of strict liability were thought
meritorious in the commercial sphere, such a policy would be
intolerable in the constitutional context, where the demands of due
process, discussed infra,
require a State to honor a
defendant's right to advance a reasonable and good faith
interpretation of an ambiguous plea agreement.
Conversely, if Adamson had refused to testify at this
point -- after an authoritative construction of the agreement had
been rendered -- then he could be deemed to have breached his
The curious and as yet unexplained decision of the State to
abandon prosecution of Dunlap and Robison in favor of Adamson is
not unrelated to the question whether the State's actions in this
case amount to prosecutorial or judicial vindictiveness. Cf.
North Carolina v. Pearce, 395 U. S. 711
(1969). This question, along with several others, was presented but
not decided below, 789 F.2d at 725, and should be decided by the
Court of Appeals on remand.