A Missouri statute provides that any person who commits any
felony under the laws of the State through the use of a dangerous
or deadly weapon is also guilty of the crime of armed criminal
action punishable by imprisonment for not less than three years,
which punishment shall be in addition to any punishment provided by
law for the felony. Another Missouri statute provides that any
person convicted of the felony of first-degree robbery by means of
a dangerous and deadly weapon shall be punished by imprisonment for
not less than five years. Respondent, as the result of a robbery of
a supermarket in which he used a revolver, was convicted in a
Missouri state court of both first-degree robbery and armed
criminal action, and, pursuant to the statutes, was sentenced to
concurrent prison terms of 10 years for robbery and 15 years for
armed criminal action. The Missouri Court of Appeals reversed
respondent's conviction and sentence for armed criminal action on
the ground that his sentence for both robbery and armed criminal
action violated the protection against multiple punishments for the
same offense provided by the Double Jeopardy Clause of the Fifth
Amendment as made applicable to the states by the Fourteenth
Amendment. The court construed the robbery and armed criminal
action statutes as defining the "same offense" under the test
announced in
Blockburger v. United States, 284 U.
S. 299,
i.e., where the same act or transaction
constitutes a violation of two distinct statutes, the test for
determining whether there are two offenses, or only one, is whether
each statute requires proof of a fact which the other does not.
Held: Respondent's conviction and sentence for both
armed criminal action and first-degree robbery in a single trial
did not violate the Double Jeopardy Clause. Pp.
459 U. S.
365-369.
(a) With respect to cumulative sentences imposed in a single
trial, the Double Jeopardy Clause does no more than prevent the
sentencing court from prescribing greater punishment than the
legislature intended. Pp.
459 U. S.
365-368.
(b) Simply because two criminal statutes may be construed to
proscribe the same conduct under the
Blockburger test does
not mean that the Double Jeopardy Clause precludes the imposition,
in a single trial, of cumulative punishments pursuant to those
statutes.
Whalen v. United States, 445 U.
S. 684;
Albernaz v. United States, 450 U.
S. 333. The
Page 459 U. S. 360
rule of statutory construction whereby cumulative punishments
are not permitted "in the absence of a clear indication of contrary
legislative intent,"
Whalen, supra, at
445 U. S. 692,
is not a constitutional rule requiring courts to negate clearly
expressed legislative intent. Accordingly, where, as here, a
legislature specifically authorizes cumulative punishment under two
statutes, regardless of whether those statutes proscribe the "same"
conduct under
Blockburger, a court's task of statutory
construction is at an end, and the prosecution may seek and the
trial court or jury may impose cumulative punishment under such
statutes in a single trial. Pp.
459 U. S.
368-369.
622
S.W.2d 374, vacated and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ.,
joined. MARSHALL, J., filed a dissenting opinion, in which STEVENS,
J., joined,
post, p.
459 U. S.
369.
CHIEF JUSTICE BURGER delivered the opinion of the Court. We
granted certiorari to consider whether the prosecution and
conviction of a criminal defendant in a single trial on both a
charge of "armed criminal action" and a charge of first-degree
robbery -- the underlying felony -- violates the Double Jeopardy
Clause of the Fifth Amendment.
I
On the evening of November 24, 1978, respondent and two
accomplices entered an A & P supermarket in Kansas City,
Page 459 U. S. 361
Missouri. Respondent entered the store manager's office and
ordered the manager, at gunpoint, to open two safes. While the
manager was complying with the demands of the robbers, respondent
struck him twice with the butt of his revolver. While the robbery
was in progress, an employee who drove in front of the store
observed the robbery and went to a nearby bank to alert an off-duty
police officer. That officer arrived at the front of the store and
ordered the three men to stop. Respondent fired a shot at the
officer and the officer returned the fire, but the trio
escaped.
Respondent and his accomplices were apprehended. In addition to
being positively identified by the store manager and the police
officer at trial and in a lineup, respondent made an oral and
written confession which was admitted in evidence. At his trial,
respondent offered no direct evidence, and was convicted of robbery
in the first degree, armed criminal action, and assault with
malice.
Missouri's statute proscribing robbery in the first degree,
Mo.Rev.Stat. § 560.120 (1969), provides:
"Every person who shall be convicted of feloniously taking the
property of another from his person, or in his presence, and
against his will, by violence to his person, or by putting him in
fear of some immediate injury to his person; or who shall be
convicted of feloniously taking the property of another from the
person of his wife, servant, clerk or agent, in charge thereof, and
against the will of such wife, servant, clerk or agent by violence
to the person of such wife, servant, clerk or agent, or by putting
him or her in fear of some immediate injury to his or her person,
shall be adjudged guilty of robbery in the first degree."
Missouri Rev.Stat. § 560.135 (Supp.1975) prescribes the
punishment for robbery in the first degree and provides in
pertinent part:
Page 459 U. S. 362
"Every person convicted of robbery in the first degree by means
of a dangerous and deadly weapon and every person convicted of
robbery in the first degree by any other means shall be punished by
imprisonment by the division of corrections for not less than five
years. . . ."
Missouri Rev.Stat. § 559.225 (Supp.1976) proscribes armed
criminal action and provides in pertinent part:
"[A]ny person who commits any felony under the laws of this
state by, with, or through the use, assistance, or aid of a
dangerous or deadly weapon is also guilty of the crime of armed
criminal action and, upon conviction, shall be punished by
imprisonment by the division of corrections for a term of not less
than three years. The punishment imposed pursuant to this
subsection shall be in addition to any punishment provided by law
for the crime committed by, with, or through the use, assistance,
or aid of a dangerous or deadly weapon. No person convicted under
this subsection shall be eligible for parole, probation,
conditional release or suspended imposition or execution of
sentence for a period of three calendar years."
Pursuant to these statutes, respondent was sentenced to
concurrent terms of (a) 10 years' imprisonment for the robbery; (b)
15 years for armed criminal action; and (c) to a consecutive term
of 5 years' imprisonment for assault, for a total of 20 years.
On appeal to the Missouri Court of Appeals, respondent claimed
that his sentence for both robbery in the first degree and armed
criminal action violated the Double Jeopardy Clause of the Fifth
Amendment of the United States Constitution, made applicable to the
states by the Fourteenth Amendment. The Missouri Court of Appeals
agreed. and reversed respondent's conviction and 15-year sentence
for
Page 459 U. S. 363
armed criminal action.
622 S.W.2d
374 (1981). The Court of Appeals relied entirely upon the
holding of the Missouri Supreme Court opinions in
State v.
Haggard, 619 S.W.2d 44
(1981);
Sours v. State, 593 S.W.2d
208 (
Sours I),
vacated and remanded, 446 U.S.
962 (1980); and
Sours v. State, 603 S.W.2d
592 (1980) (
Sours II),
cert. denied, 449 U.S.
1131 (1981). The State's timely alternative motion for rehearing or
transfer to the Missouri Supreme Court was denied by the Court of
Appeals on September 15, 1981. The Missouri Supreme Court denied
review on November 10, 1981.
We granted certiorari, 456 U.S. 914 (1982), and we vacate and
remand.
II
The Missouri Supreme Court first adopted its challenged approach
to the Double Jeopardy issue now before us in
Sours I,
supra. [
Footnote 1] In
that case, as here, the defendant was convicted and sentenced
separately for robbery in the first degree and armed criminal
action based on the robbery. The Missouri Supreme Court concluded
that, under the test announced in
Blockburger v. United
States, 284 U. S. 299
(1932), armed criminal action and any underlying offense are the
"same offense" under the Fifth Amendment's Double Jeopardy Clause.
That court acknowledged that the Missouri Legislature had expressed
its clear intent that a defendant
Page 459 U. S. 364
should be subject to conviction and sentence under the armed
criminal action statute in addition to any conviction and sentence
for the underlying felony. 593 S.W.2d at 216. The court
nevertheless held that the Double Jeopardy Clause "prohibits
imposing punishment for both armed criminal action and for the
underlying felony."
Id. at 223 (footnote omitted). It then
set aside the defendant's conviction for armed criminal action.
[
Footnote 2]
When the State sought review here in
Sours I, we
remanded the case for reconsideration in light of our holding in
Whalen v. United States, 445 U. S. 684
(1980).
Missouri v. Sours, 446 U.S. 962 (1980). On remand,
in
Sours II, supra, the Missouri Supreme Court adhered to
its previous ruling that armed criminal action and the underlying
felony are the "same offense," and that the Double Jeopardy Clause
bars separate punishment of a defendant for each offense,
notwithstanding the acknowledged intent of the legislature to
impose two separate punishments for the two defined offenses.
[
Footnote 3]
Most recently, in
State v. Haggard, supra, the Missouri
Supreme Court reexamined its decisions in
Sours I, supra,
and
Sours II, supra, in light of our 1981 holding in
Albernaz v. United States, 450 U.
S. 333. [
Footnote 4]
The Missouri court, however, remained unpersuaded, stating:
Page 459 U. S. 365
"Until such time as the Supreme Court of the United States
declares clearly and unequivocally that the Double Jeopardy Clause
of the Fifth Amendment to the United States Constitution does not
apply to the legislative branch of government, we cannot do other
than what we perceive to be our duty to refuse to enforce multiple
punishments for the same offense arising out of a single
transaction."
619 S.W.2d at 51. This view manifests a misreading of our cases
on the meaning of the Double Jeopardy Clause of the Fifth
Amendment; we need hardly go so far as suggested to decide that a
legislature constitutionally can prescribe cumulative punishments
for violation of its first-degree robbery statute and its armed
criminal action statute.
III
The Double Jeopardy Clause is cast explicitly in terms of being
"twice put in jeopardy." We have consistently interpreted it
"
to protect an individual from being subjected to the hazards
of trial and possible conviction more than once for an alleged
offense.'" Burks v. United State, 437 U. S.
1, 437 U. S. 11
(1978), quoting Green v. United States, 355 U.
S. 184, 355 U. S. 187
(1957). Because respondent has been subjected to only one trial, it
is not contended that his right to be free from multiple trials for
the same offense has been violated. Rather, the Missouri court
vacated respondent's conviction for armed
Page 459 U. S. 366
criminal action because of the statements of this Court that the
Double Jeopardy Clause also "protects against multiple punishments
for the same offense."
North Carolina v. Pearce,
395 U. S. 711,
395 U. S. 717
(1969). Particularly in light of recent precedents of this Court,
it is clear that the Missouri Supreme Court has misperceived the
nature of the Double Jeopardy Clause's protection against multiple
punishments. With respect to cumulative sentences imposed in a
single trial, the Double Jeopardy Clause does no more than prevent
the sentencing court from prescribing greater punishment than the
legislature intended.
In
Whalen v. United States, supra, we addressed the
question whether cumulative punishments for the offenses of rape
and of killing the same victim in the perpetration of the crime of
rape was contrary to federal statutory and constitutional law. A
divided Court relied on
Blockburger v. United States,
284 U. S. 299
(1932), in holding that the two statutes in controversy proscribed
the "same" offense. The opinion in
Blockburger stated:
"The applicable rule is that, where the same act or transaction
constitutes a violation of two distinct statutory provisions, the
test to be applied to determine whether there are two offenses or
only one is whether each provision requires proof of a fact which
the other does not."
Id. at
284 U. S.
304.
In
Whalen, we also noted that
Blockburger
established a rule of statutory construction in these terms:
"The assumption underlying the rule is that Congress
ordinarily does not intend to punish the same offense
under two different statutes. Accordingly, where two statutory
provisions proscribe the 'same offense,' they are construed not to
authorize cumulative punishments
in the absence of a clear
indication of contrary legislative intent."
445 U.S. at
445 U. S.
691-692 (emphasis added).
Page 459 U. S. 367
We went on to emphasize the qualification on that rule:
"[W]here the offenses are the same . . . cumulative sentences
are not permitted,
unless elsewhere specially authorized by
Congress."
Id. at 693 (emphasis added).
It is clear, therefore, that the result in
Whalen
turned on the fact that the Court saw no "clear indication of
contrary legislative intent." Accordingly, under the rule of
statutory construction, we held that cumulative punishment could
not be imposed under the two statutes.
In
Albernaz v. United States, 450 U.
S. 333 (1981), we addressed the issue whether a
defendant could be cumulatively punished in a single trial for
conspiracy to import marihuana and conspiracy to distribute
marihuana. There, in contrast to
Whalen, we concluded that
the two statutes did not proscribe the "same" offense in the sense
that "
each provision requires proof of a fact [that] the other
does not.'" 450 U.S. at 450 U. S. 339,
quoting Blockburger, supra, at 284 U. S. 304.
We might well have stopped at that point and upheld the
petitioners' cumulative punishments under the challenged statutes,
since cumulative punishment can presumptively be assessed after
conviction for two offenses that are not the "same" under
Blockburger. See, e.g., American Tobacco Co. v. United
States, 328 U. S. 781
(1946). However, we went on to state that, because
"[t]he
Blockburger test is a 'rule of statutory
construction,' and because it serves as a means of discerning
congressional purpose,
the rule should not be controlling
where, for example, there is a clear indication of contrary
legislative intent."
Albernaz v. United States, 450 U.S. at
450 U. S. 340
(emphasis added). We found
"[n]othing . . . in the legislative history which . . .
discloses an intent contrary to the presumption which should be
accorded to these statutes after application of the
Blockburger test."
Ibid. We concluded our discussion of the impact of
clear legislative intent on the
Whalen rule of statutory
construction with this language:
Page 459 U. S. 368
"[T]he question of what punishments are constitutionally
permissible is no different from the question of what punishments
the Legislative Branch intended to be imposed.
Where Congress
intended, a it did here, to impose multiple punishment, imposition
of such sentences does not violate the Constitution."
450 U.S. at
450 U. S. 344
(emphasis added) (footnote omitted).
Here, the Missouri Supreme Court has construed the two statutes
at issue as defining the same crime. In addition, the Missouri
Supreme Court has recognized that the legislature intended that
punishment for violations of the statutes be cumulative. We are
bound to accept the Missouri court's construction of that State's
statutes.
See O'Brien v. Skinner, 414 U.
S. 524,
414 U. S. 531
(1974). However, we are not bound by the Missouri Supreme Court's
legal conclusion that these two statutes violate the Double
Jeopardy Clause, and we reject its legal conclusion.
Our analysis and reasoning in
Whalen and
Albernaz lead inescapably to the conclusion that simply
because two criminal statutes may be construed to proscribe the
same conduct under the
Blockburger test does not mean that
the Double Jeopardy Clause precludes the imposition, in a single
trial, of cumulative punishments pursuant to those statutes. The
rule of statutory construction noted in
Whalen is not a
constitutional rule requiring courts to negate clearly expressed
legislative intent. Thus far, we have utilized that rule only to
limit a federal court's power to impose convictions and punishments
when the will of Congress is not clear. Here, the Missouri
Legislature has made its intent crystal clear. Legislatures, not
courts, prescribe the scope of punishments. [
Footnote 5]
Where, as here, a legislature specifically authorizes cumulative
punishment under two statutes, regardless of whether those two
statutes proscribe the "same" conduct under
Blockburger,
Page 459 U. S. 369
a court's task of statutory construction is at an end, and the
prosecutor may seek and the trial court or jury may impose
cumulative punishment under such statutes in a single trial.
Accordingly, the judgment of the Court of Appeals of Missouri,
Western District, is vacated, and the case is remanded for further
proceedings not inconsistent with this opinion.
So ordered.
[
Footnote 1]
In
Sours I, the Missouri Supreme Court noted that the
double jeopardy provision in the Missouri Constitution, Art. I, §
19, "has been interpreted to apply
only where there has been an
acquittal of the defendant by the jury.'" 593 S.W.2d at 211,
quoting Murray v. State, 475 S.W.2d
67, 70 (Mo.1972). Clearly, it is the Double Jeopardy Clause of
the Fifth Amendment, and not Missouri's double jeopardy provision,
that is relied upon by the Missouri Supreme Court in these
cases.
When the issue first arose, the Missouri Supreme Court took the
position that multiple convictions for both armed criminal action
and the underlying felony did not violate the Double Jeopardy
Clause.
State v. Treadway, 558 S.W.2d
646 (1977),
cert. denied, 439 U.S. 838 (1978);
State v. Valentine, 584 S.W.2d 92
(1979).
[
Footnote 2]
The Missouri Supreme Court has recently made clear that,
"in order to establish uniformity of sentencing in
Sours-type cases, the armed criminal action sentence
should be reversed in all instances. [W]e are convinced that, in
the historical background of the armed criminal action statute, the
net effect of such statute is to enhance (in pure sense of
enlarging) the penalty assessed for the underlying felony. . . .
The attempt to enhance or enlarge having failed because of being
phrased in terms of separate crime or offense and in our opinion
thereby violative of the constitutional prohibition against double
jeopardy, we are left with only the penalty assessed on the
underlying felony."
State v. Kane, 629 S.W.2d
372, 377 (1982).
[
Footnote 3]
The State's petition for writ of certiorari in
Sours II
was denied. JUSTICE BLACKMUN and JUSTICE REHNQUIST would have
dismissed the petition as moot.
Missouri v. Sours, 449
U.S. 1131 (1981).
[
Footnote 4]
Subsequent to the Missouri Supreme Court's decision on remand in
Sours II, the Missouri Supreme Court, as well as the three
districts of the Missouri Court of Appeals, began reversing
convictions for armed criminal action in a number of cases. The
State, in most instances, sought review by certiorari from this
Court. In response to those petitions, this Court repeatedly
granted certiorari and vacated decisions that had reversed
convictions for armed criminal action on the basis of
Sours
II. See, e.g., Missouri v. Counselman, 450 U.S. 990
(1981). The orders from this Court in every case read substantially
the same: "Certiorari granted, judgments vacated, and cases
remanded for further consideration in light of
Albernaz v.
United States, ante, p. 333."
Ibid. The Missouri
Supreme Court chose
Haggard "as the vehicle for
accomplishing the reexamination
in light of
Albernaz.'" 619 S.W.2d at 49.
[
Footnote 5]
This case presents only issues under the Double Jeopardy
Clause.
JUSTICE MARSHALL, with whom JUSTICE STEVENS joins,
dissenting.
The Double Jeopardy Clause forbids either multiple prosecutions
or multiple punishment for "the same offence."
See, e.g., North
Carolina v. Pearce, 395 U. S. 711,
395 U. S.
717-718 (1969);
United States v. Benz,
282 U. S. 304,
282 U. S.
307-308 (1931);
Ex parte
Lange, 18 Wall. 163,
85 U. S. 169,
85 U. S.
173-175 (1874). Respondent was convicted of both armed
criminal action and the lesser included offense of first-degree
robbery, and he was sentenced for both crimes. Had respondent been
tried for these two crimes in separate trials, he would plainly
have been subjected to multiple prosecutions for "the same offence"
in violation of the Double Jeopardy Clause. [
Footnote 2/1]
See Harris v. Oklahoma,
433 U. S. 682
(1977) (per curiam);
Brown v. Ohio, 432 U.
S. 161 (1977). For the reasons stated below, I do not
believe that the phrase "the same offence" should be interpreted to
mean one thing for purposes of the prohibition against multiple
prosecutions, and something else for purposes of the prohibition
against multiple punishment.
First-degree robbery and armed criminal action constitute the
same offense under the test set forth in
Blockburger v. United
States, 284 U. S. 299,
284 U. S. 304
(1932). To punish respondent for first-degree robbery, the State
was not required
Page 459 U. S. 370
to prove a single fact in addition to what it had to prove to
punish him for armed criminal action. [
Footnote 2/2] The punishment imposed for first-degree
robbery was not predicated upon proof of any act, state of mind, or
result different from that required to establish armed criminal
action. Respondent was thus punished twice for the elements of
first-degree robbery: once when he was convicted and sentenced for
that crime, and again when he was convicted and sentenced for armed
criminal action.
A State has wide latitude to define crimes and to prescribe the
punishment for a given crime. For example, a State is free to
prescribe two different punishments (
e.g., a fine and a
prison term) for a single offense. But the Constitution does not
permit a State to punish as two crimes conduct that constitutes
only one "offence" within the meaning of the Double Jeopardy
Clause. For whenever a person is subjected to the risk that he will
be convicted of a crime under state law, he is "put in jeopardy of
life or limb." If the prohibition against being "twice put in
jeopardy" for "the same offence" is to have any real meaning, a
State cannot be allowed to convict
Page 459 U. S. 371
a defendant two, three, or more times simply by enacting
separate statutory provisions defining nominally distinct crimes.
If the Double Jeopardy Clause imposed no restrictions on a
legislature's power to authorize multiple punishment, there would
be no limit to the number of convictions that a State could obtain
on the basis of the same act, state of mind, and result. A State
would be free to create substantively identical crimes differing
only in name, or to create a series of greater and lesser included
offenses, with the first crime a lesser included offense of the
second, the second a lesser included offense of the third, and so
on. [
Footnote 2/3]
Contrary to the assertion of the United States in its
amicus brief, Brief for United States as
Amicus
Curiae 18-19, the entry of two convictions and the imposition
of two sentences cannot be justified on the ground that the
legislature could have simply created one crime, but prescribed
harsher punishment for that crime. This argument incorrectly
assumes that the total sentence imposed is all that matters, and
that the number of convictions that can be obtained is of no
Page 459 U. S. 372
relevance to the concerns underlying the Double Jeopardy
Clause.
When multiple charges are brought, the defendant is "put in
jeopardy" as to each charge. To retain his freedom, the defendant
must obtain an acquittal on all charges; to put the defendant in
prison, the prosecution need only obtain a single guilty verdict.
The prosecution's ability to bring multiple charges increases the
risk that the defendant will be convicted on one or more of those
charges. The very fact that a defendant has been arrested, charged,
and brought to trial on several charges may suggest to the jury
that he must be guilty of at least one of those crimes. Moreover,
where the prosecution's evidence is weak, its ability to bring
multiple charges may substantially enhance the possibility that,
even though innocent, the defendant may be found guilty on one or
more charges as a result of a compromise verdict. The submission of
two charges, rather than one, gives the prosecution
"the advantage of offering the jury a choice -- a situation
which is apt to induce a doubtful jury to find the defendant guilty
of the less serious offense, rather than to continue the debate as
to his innocence."
Cichos v. Indiana, 385 U. S. 76,
385 U. S. 81
(1966) (Fortas, J., dissenting from dismissal of certiorari).
[
Footnote 2/4]
The Government's argument also overlooks the fact that, quite
apart from any sentence that is imposed, each separate criminal
conviction typically has collateral consequences, in both the
jurisdiction in which the conviction is obtained and in other
jurisdictions.
See Benton v. Maryland, 395 U.
S. 784,
395 U. S. 790
(1969);
Sibron v. New York, 392 U. S.
40,
392 U. S.
53-58
Page 459 U. S. 373
(1968). The number of convictions is often critical to the
collateral consequences that an individual faces. For example, a
defendant who has only one prior conviction will generally not be
subject to sentencing under a habitual offender statute.
Furthermore, each criminal conviction itself represents a
pronouncement by the State that the defendant has engaged in
conduct warranting the moral condemnation of the community.
See Hart, The Aims of the Criminal Law, 23 Law &
Contemp.Prob. 401, 404-405 (1958). Because a criminal conviction
constitutes a formal judgment of condemnation by the community,
each additional conviction imposes an additional stigma and causes
additional damage to the defendant's reputation.
See O'Clair v.
United States, 470 F.2d 1199, 1203 (CA1 1972),
cert.
denied, 412 U.S. 921 (1973).
A statutory scheme that permits the prosecution to obtain two
convictions and two sentences therefore cannot be regarded as the
equivalent of a statute that permits only a single conviction,
whether or not that single conviction can result in a sentence of
equal severity. The greater the number of possible convictions, the
greater the risk that the defendant faces. The defendant is "put in
jeopardy" with respect to each charge against him.
The very fact that the State could simply convict a defendant
such as respondent of one crime and impose an appropriate
punishment for that crime demonstrates that it has no legitimate
interest in seeking multiple convictions and multiple punishment.
The creation of multiple crimes serves only to strengthen the
prosecution's hand. It advances no valid state interest that could
not just as easily be achieved without bringing multiple charges
against the defendant.
In light of these considerations, the Double Jeopardy Clause
cannot reasonably be interpreted to leave legislatures completely
free to subject a defendant to the risk of multiple punishment on
the basis of a single criminal transaction. In the context of
multiple prosecutions, it is well established
Page 459 U. S. 374
that the phrase "the same offence" in the Double Jeopardy Clause
has independent content -- that two crimes that do not satisfy the
Blockburger test constitute "the same offence" under the
Double Jeopardy Clause regardless of the legislature's intent to
treat them as separate offenses. [
Footnote 2/5] Otherwise, multiple prosecutions would be
permissible whenever authorized by the legislature. The Court has
long assumed that the
Blockburger test is also a rule of
constitutional stature in multiple-punishment cases, [
Footnote 2/6] and I would not hesitate to
hold that it is. If the prohibition against being "twice put in
jeopardy" for "the same offence" is to provide meaningful
protection, the phrase "the same offence" must have content
independent of state law in both contexts. Since the Double
Jeopardy Clause limits the power of all branches of government,
including the legislature, there is no more reason to treat the
test as simply a rule of statutory construction in
multiple-punishment cases than there would be in
multiple-prosecution cases.
I respectfully dissent.
[
Footnote 2/1]
The Double Jeopardy Clause would have forbidden multiple
prosecutions regardless of which charge was brought first, and
regardless of whether the first trial ended in a conviction or an
acquittal.
[
Footnote 2/2]
Under
Blockburger,
"the test to be applied to determine whether there are two
offenses, or only one, is whether each provision requires proof of
a fact which the other does not."
284 U.S. at
284 U. S. 304.
Missouri law defines first-degree robbery as the felonious taking
of property of another from his person, or in his presence, by
violence or threat of violence. Mo.Rev.Stat. § 560.120 (1969).
Armed criminal action is the commission of a felony with a
dangerous or deadly weapon. Mo.Rev.Stat. § 559.225 (Supp.1976).
Although the underlying felony necessary to obtain a conviction for
armed criminal action need not be first-degree robbery, the
Missouri courts have properly recognized that the theoretical
possibility that the underlying felony could be some felony other
than first-degree robbery is irrelevant for purposes of the Double
Jeopardy Clause where no other underlying felony is, in fact,
charged.
Sours v. State, 593 S.W.2d
208, 217-220 (Mo.),
vacated and remanded, 446 U.S. 962
(1980).
Cf. Harris v. Oklahoma, 433 U.
S. 682 (1977) (defendant cannot be subjected to multiple
prosecutions for felony murder and robbery with firearms where the
felony underlying the felony murder charge was robbery with
firearms). Petitioner makes no argument to the contrary.
[
Footnote 2/3]
Although the majority relies on a passage in
Albernaz v.
United States, 450 U. S. 333,
450 U. S. 344
(1981), which states that cumulative punishment does not violate
the Constitution so long as it is authorized by the legislature,
ante at
459 U. S.
367-368, that passage is clearly dicta. The Court held
in
Albernaz that the two crimes at issue did not
constitute the same offense under the
Blockburger test,
450 U.S. at
450 U. S. 339,
because each required proof of a fact which the other did not.
Albernaz simply did not involve the question whether the
Double Jeopardy Clause forbids multiple punishment for two crimes
that do constitute the same offense under the
Blockburger
test.
Whalen v. United States, 445 U.
S. 684 (1980), on which the Court also relies,
ante at
459 U. S.
366-367, likewise did not decide this question.
Whalen held that, "in the absence of a clear indication of
contrary legislative intent," 445 U.S. at
445 U. S. 692,
a defendant cannot be subjected to multiple punishment for two
crimes that constitute the same offense under
Blockburger.
The Court had no occasion to decide, and it did not decide, whether
multiple punishment for two such crimes can be imposed if clearly
authorized by the legislature.
See 445 U.S. at
445 U. S. 689
("The Double Jeopardy Clause,
at the very least, precludes
federal courts from imposing consecutive sentences unless
authorized by Congress to do so") (emphasis supplied).
[
Footnote 2/4]
It is true that compromise is possible even under the familiar
procedure whereby a lesser included offense is submitted along with
a greater offense and the jury is told that it can convict on only
one charge. Under the usual procedure, however, the risk of an
irrational compromise is reduced by the rule that a lesser included
offense will not be submitted to the jury if the element that
distinguishes the two offenses is not in dispute.
See, e.g.,
Sansone v. United States, 380 U. S. 343
(1965);
United State v. Tsanas, 572 F.2d 340, 345-346
(CA2),
cert. denied, 435 U.S. 995 (1978).
[
Footnote 2/5]
The test later set forth in
Blockburger was adopted by
this Court in the context of multiple prosecutions nearly a century
ago.
See In re Nielsen, 131 U. S. 176,
131 U. S.
186-188 (1889).
See also In re Snow,
120 U. S. 274
(1887).
[
Footnote 2/6]
Blockburger itself was a multiple-punishment case. In
rejecting the defendant's double jeopardy claim on the ground that
each crime required proof of a fact which the other did not, 284
U.S. at
284 U. S. 304,
the Court relied on Justice Brandeis' opinion for the Court in
Albrecht v. United States, 273 U. S.
1 (1927), in which he had expressly analyzed a claim of
multiple punishment in constitutional, rather than statutory,
terms, and rejected the claim because it would have been possible
to commit each crime without committing the other,
id. at
273 U. S. 11.