Heath v. Alabama

Justice Marshall,

with whom Justice Brennan joins, dissenting.

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.

*96i — i

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 first degree.

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 dire, all but 7 stated that they were aware that petitioner had pleaded guilty to the same crime in Georgia. Id., at 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, e. g., id., at 110,112-113,134, 254. These answers sat*97isfied 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 guilt.

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 905 (1984).

I — I HH

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, 166 (1977); id., at 170 (Brennan, J., concurring).

The only difference between this case and such a hypothetical volte-face by Georgia is that here Alabama, not Georgia, was offended by the notion that petitioner might *98not 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.

A

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 punishable.” Moore v. Illinois, 14 How. 13, 20 (1852). Therefore, “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. S. 313, 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, 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.1

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.

*99Under 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, 108-110, 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, swpra, at 195, it would be inappropriate — in the absence of a specific congressional intent to pre-empt 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 137.

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 their *100respective 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. 542, 551 (1876). See Moore v. Illinois, supra, at 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”).

B

Because all but one of the cases upholding the dual sovereignty doctrine have involved the unique relationship between the Federal Government and the States,2 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 offense

“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 the other.” Nielsen v. Oregon, 212 U. S. 315, 320 (1909).

Where two States seek to prosecute the same defendant for the same crime in two separate proceedings, the justifica*101tions 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.

Ill

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.

*102Even 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. S. 206 (1960).3 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 *103the 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, 262 (1971).

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 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, 573 (1958). Such “relentless prosecutions,” they asserted, constituted “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.” Id., at 575. The only differences between the facts in Ciucci and those 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 dissent.

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 128, n. 9. But see id., at 156 (Black, J., dissenting); M. Friedland, Double Jeopardy 360-364 (1969).

United States v. Wheeler, 435 U. S. 313 (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., at 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 eases 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 Note, Double Prosecution by State and Federal Governments: Another Exercise in Federalism, 80 Harv. L. Rev. 1538, 1547 (1967). Justice Harlan’s belief that Murphy “abolished the ‘two sovereignties’ rule,” Stevens v. Marks, 383 U. S. 234, 250 (1966) (Harlan, J., concurring in part, dissenting in part), was thus well founded.