445 U.S.

684
100 S.Ct. 1432
63 L.Ed.2d 715

Thomas W. WHALEN, Petitioner,

v.
UNITED STATES.
No. 78-5471.
Argued Nov. 27, 28, 1979.
Decided April 16, 1980.

Syllabus
Petitioner was convicted under the District of Columbia Code of the
separate statutory offenses of rape and killing the same victim in the
perpetration of the rape. Under the Code, the latter offense is a species of
first-degree murder, but the statute, although requiring proof of a killing
and of the commission or attempted commission of rape, does not require
proof of an intent to kill. Petitioner was sentenced to consecutive terms of
imprisonment of 20 years to life for first-degree murder and of 15 years to
life for rape. The District of Columbia Court of Appeals affirmed the
convictions and sentences, rejecting petitioner's contention that his
sentence for rape was improper because that offense merged for purposes
of punishment with the felony-murder offense, and thus that the
imposition of cumulative punishments for the two offenses was contrary
to the federal statutes and to the Double Jeopardy Clause of the Fifth
Amendment.
Held: The Court of Appeals was mistaken in believing that Congress
authorized consecutive sentences in the circumstances of this case, and
that error denied petitioner his right to be deprived of liberty as
punishment for criminal conduct only to the extent authorized by
Congress. Pp. 686-695.
(a) The customary deference ordinarily afforded by this Court to the
District of Columbia Court of Appeals' construction of local federal
legislation is inappropriate with respect to the statutes involved in this
case, because petitioner's claim under the Double Jeopardy Clause, which

protects against multiple punishments for the same offense, cannot be

separated entirely from a resolution of the question of statutory
construction. If a federal court exceeds its own authority by imposing
multiple punishments not authorized by Congress, it violates not only the
specific guarantee against double jeopardy, but also the constitutional
principle of separation of powers in a manner that trenches particularly
harshly on individual liberty. Pp. 688-690.
(b) Neither of the provisions of the District of Columbia Code specifying
the separate offenses involved here indicates whether Congress authorized
consecutive sentences where both statutes have been offended in a single
criminal episode. However, another Code section, when construed in light
of its history and its evident purpose, indicates that multiple punishments
cannot be imposed for two offenses arising out of the same criminal
transaction unless each offense "requires proof of a fact which the other
does not." The statute embodies in this respect the rule of statutory
construction stated in Blockburger v. United States, 284 U.S. 299, 304, 52
S.Ct. 180, 182, 76 L.Ed. 306, and, in this case, leads to the conclusion that
Congress did not authorize consecutive sentences for rape and for a killing
committed in the course of the rape, since it is plainly not the case that
each provision "requires proof of a fact which the other does not." A
conviction for killing in the course of a rape cannot be had without
proving all the elements of the offense of rape. Pp. 690-695.
379 A.2d 1152, reversed and remanded.
Andrew L. Frey, Dept. of Justice, Washington, D. C., for respondent.
Silas J. Wasserstrom, Washington, D. C., for petitioner.
Mr. Justice STEWART delivered the opinion of the Court.

After a jury trial, the petitioner was convicted in the Superior Court of the
District of Columbia of rape, and of killing the same victim in the perpetration
of rape. He was sentenced to consecutive terms of imprisonment of 20 years to
life for first-degree murder, and of 15 years to life for rape. The District of
Columbia Court of Appeals affirmed the convictions and the sentences. 379
A.2d 1152. 1 We brought the case here to consider the contention that the
imposition of cumulative punishments for the two offenses was contrary to
federal statutory and constitutional law. 441 U.S. 904, 99 S.Ct. 1991, 60
L.Ed.2d 372.

* Under the laws enacted by Congress for the governance of the District of
Columbia, rape and killing a human being in the course of any of six specified
felonies, including rape, are separate statutory offenses. The latter is a species
of first-degree murder, but, as is typical of such "felony murder" offenses, the
statute does not require proof of an intent to kill. D.C.Code 22-2401 (1973). It
does require proof of a killing and of the commission or attempted commission
of rape or of one of five other specified felonies, in the course of which the
killing occurred. Ibid. A conviction of first-degree murder is punishable in the
District of Columbia by imprisonment for a term of 20 years to life. 22-2404.2
Forcible rape of a female is punishable by imprisonment for any term of years
or for life. 22-2801.

It is the petitioner's position that his sentence for the offense of rape must be
vacated because that offense merged for purposes of punishment with the
felony-murder offense, just as, for example, simple assault is ordinarily held to
merge into the offense of assault with a dangerous weapon. See Waller v.
United States, 389 A.2d 801, 808 (D.C.1978). The District of Columbia Court
of Appeals disagreed, finding that "the societal interests which Congress sought
to protect by enactment [of the two statutes] are separate and distinct," and that
"nothing in th[e] legislation . . . suggest[s] that Congress intended" the two
offenses to merge. 379 A.2d, at 1159. That construction of the legislation, the
petitioner argues, is mistaken, and he further argues that, so construed, the
pertinent statutes impose on him multiple punishments for the same offense in
violation of the Double Jeopardy Clause of the Fifth Amendment. Cf. North
Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656.

If this case had come here from a United States court of appeals, we would as a
matter of course first decide the petitioner's statutory claim, and, only if that
claim were rejected, would we reach the constitutional issue. See Simpson v.
United States, 435 U.S. 6, 11-12, 98 S.Ct. 909, 912-13, 55 L.Ed.2d 70. But this
case comes from the District of Columbia Court of Appeals, and the statutes in
controversy are Acts of Congress applicable only within the District of
Columbia. In such cases it has been the practice of the Court to defer to the
decisions of the courts of the District of Columbia on matters of exclusively
local concern. See Pernell v. Southall Realty, 416 U.S. 363, 366, 94 S.Ct. 1723,
1725, 40 L.Ed.2d 198; see also Griffin v. United States, 336 U.S. 704, 717-718,
69 S.Ct. 814, 820, 93 L.Ed. 993; Fisher v. United States, 328 U.S. 463, 476, 66
S.Ct. 1318, 1324, 90 L.Ed. 1382. This practice has stemmed from the fact that
Congress, in creating the courts of the District of Columbia and prescribing
their jurisdiction, "contemplate[d] that the decisions of the District of Columbia
Court of Appeals on matters of local lawboth common law and statutory law
will be treated by this Court in a manner similar to the way in which we treat

decisions of the highest court of a State on questions of state law." Pernell v.

Southall Realty, 416 U.S., at 368, 94 S.Ct., at 1726 (footnote omitted).
5

But it is clear that the approach described in the Pernell opinion is a matter of
judicial policy, not a matter of judicial power. Acts of Congress affecting only
the District, like other federal laws, certainly come within this Court's Art. III
jurisdiction, and thus we are not prevented from reviewing the decisions of the
District of Columbia Court of Appeals interpreting those Acts in the same
jurisdictional sense that we are barred from reviewing a state court's
interpretation of a state statute. Ibid. Cf. Mullaney v. Wilbur, 421 U.S. 684, 691,
95 S.Ct. 1881, 1886, 44 L.Ed.2d 508; Scripto, Inc. v. Carson, 362 U.S. 207,
210, 80 S.Ct. 619, 621, 4 L.Ed.2d 660; Murdock v. Memphis, 20 Wall. 590,
632-633, 22 L.Ed. 429.

In this case we have concluded that the customary deference to the District of
Columbia Court of Appeals' construction of local federal legislation is
inappropriate with respect to the statutes involved for the reason that the
petitioner's claim under the Double Jeopardy Clause cannot be separated
entirely from a resolution of the question of statutory construction. The Fifth
Amendment guarantee against double jeopardy protects not only against a
second trial for the same offense, but also "against multiple punishments for the
same offense," North Carolina v. Pearce, supra, at 717, 89 S.Ct., at 2076
(footnote omitted). But the question whether punishments imposed by a court
after a defendant's conviction upon criminal charges are unconstitutionally
multiple cannot be resolved without determining what punishments the
Legislative Branch has authorized. See Gore v. United States, 357 U.S. 386,
390, 78 S.Ct. 1280, 1283, 2 L.Ed.2d 1405; id., at 394, 78 S.Ct., at 1285
(Warren, C. J., dissenting on statutory grounds); Bell v. United States, 349 U.S.
81, 82, 75 S.Ct. 620, 621, 99 L.Ed. 905; Ex parte Lange, 18 Wall. 163, 176, 21
L.Ed. 872; see also Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53
L.Ed.2d 187; United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 73
S.Ct. 227, 97 L.Ed. 260; Blockburger v. United States, 284 U.S. 299, 52 S.Ct.
180, 76 L.Ed. 306; Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed.
1151.

It is not at all uncommon, for example, for Congress or a state legislature to

provide that a single criminal offense may be punished both by a monetary fine
and by a term of imprisonment. In that situation, it could not be seriously
argued that the imposition of both a fine and a prison sentence in accordance
with such a provision constituted an impermissible punishment. But if a penal
statute instead provided for a fine or a term of imprisonment upon conviction, a
court could not impose both punishments without running afoul of the double

jeopardy guarantee of the Constitution. See Ex parte Lange, supra, at 176, 21

L.Ed. 872. Cf. Bozza v. United States, 330 U.S. 160, 167, 67 S.Ct. 645, 649, 91
L.Ed. 818. In the present case, therefore, if Congress has not authorized
cumulative punishments for rape and for an unintentional killing committed in
the course of the rape, contrary to what the Court of Appeals believed, the
petitioner has been impermissibly sentenced. The dispositive question,
therefore, is whether Congress did so provide.
8

The Double Jeopardy Clause at the very least precludes federal courts from
imposing consecutive sentences unless authorized by Congress to do so. The
Fifth Amendment guarantee against double jeopardy embodies in this respect
simply one aspect of the basic principle that within our federal constitutional
framework the legislative power, including the power to define criminal
offenses and to prescribe the punishments to be imposed upon those found
guilty of them, resides wholly with the Congress. See United States v.
Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37; United States v. Hudson & Goodwin,
7 Cranch 32, 34, 3 L.Ed. 259.3 If a federal court exceeds its own authority by
imposing multiple punishments not authorized by Congress, it violates not only
the specific guarantee against double jeopardy, but also the constitutional
principle of separation of powers in a manner that trenches particularly harshly
on individual liberty.4

Because we have concluded that the District of Columbia Court of Appeals was
mistaken in believing that Congress authorized consecutive sentences in the
circumstances of this case, and because that error denied the petitioner his
constitutional right to be deprived of liberty as punishment for criminal conduct
only to the extent authorized by Congress, we reverse the judgment of the Court
of Appeals.

II
10

As has already been noted, rape and the killing of a person in the course of rape
in the District of Columbia are separate statutory offenses for which
punishments are separately provided. Neither statute, however, indicates
whether Congress authorized consecutive sentences where both statutes have
been offended in a single criminal episode. Moreover, the legislative history of
those specific penal provisions sheds no light on that question.5 The issue is
resolved, however, by another statute, enacted in 1970. That statute is 23-112
of the District of Columbia Code (1973), and it provides as follows:

11

"A sentence imposed on a person for conviction of an offense shall, unless the
court imposing such sentence expressly provides otherwise, run consecutively

to any other sentence imposed on such person for conviction of an offense,

whether or not the offense (1) arises out of another transaction, or (2) arises out
of the same transaction and requires proof of a fact which the other does not."
(Emphasis added.)
12

Although the phrasing of the statute is less than felicitous, the message of the
italicized clause, we think, is that multiple punishments cannot be imposed for
two offenses arising out of the same criminal transaction unless each offense
"requires proof of a fact which the other does not." The clause refers, of course,
to a rule of statutory construction stated by this Court in Blockburger v. United
States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, and consistently relied on
ever since to determine whether Congress has in a given situation provided that
two statutory offenses may be punished cumulatively.6 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. In the Blockburger case the Court held that "[t]he 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 304, 52 S.Ct., at 182. See also Brown v. Ohio,
432 U.S., at 166, 97 S.Ct., at 2225; Iannelli v. United States, 420 U.S. 770, 95
S.Ct. 1284, 43 L.Ed.2d 616; Gore v. United States, 357 U.S. 386, 78 S.Ct.
1280, 2 L.Ed.2d 1405.

13

The legislative history rather clearly confirms that Congress intended the
federal courts to adhere strictly to the Blockburger test when construing the
penal provisions of the District of Columbia Code. The House Committee
Report expressly disapproved several decisions of the United States Court of
Appeals for the District of Columbia Circuit that had not allowed consecutive
sentences notwithstanding the fact that the offenses were different under the
Blockburger test. See H.R.Rep.No.91-907, p. 114 (1970). The Report restated
the general principle that "whether or not consecutive sentences may be
imposed depends on the intent of Congress." Ibid. But "[s]ince Congress in
enacting legislation rarely specifies its intent on this matter, the courts have
long adhered to the rule that Congress did intend to permit consecutive
sentences . . . when each offense " 'requires proof of a fact which the other does
not,' " ibid., citing Blockburger v. United States, supra, and Gore v. United
States, supra. The Com mittee Report observed that the United States Court of
Appeals had "retreated from this settled principle of law" by requiring specific
evidence of congressional intent to allow cumulative punishments,

H.R.Rep.No.91-907, at 114, and the Report concluded as follows:

14

"To obviate the need for the courts to search for legislative intent, section 23112 clearly states the rule for sentencing on offenses arising from the same
transaction. For example, a person convicted of entering a house with intent to
steal and stealing therefrom shall be sentenced consecutively on the crimes of
burglary and larceny unless the judge provides to the contrary."

15

We think that the only correct way to read 23-112, in the light of its history
and its evident purpose, is to read it as embodying the Blockburger rule for
construing the penal provisions of the District of Columbia Code. Accordingly,
where two statutory offenses are not the same under the Blockburger test, the
sentences imposed "shall, unless the court expressly provides otherwise, run
consecutively."7 And where the offenses are the same under that test,
cumulative sentences are not permitted, unless elsewhere specially authorized
by Congress.

16

In this case, resort to the Blockburger rule leads to the conclusion that Congress
did not authorize consecutive sentences for rape and for a killing committed in
the course of the rape, since it is plainly not the case that "each provision
requires proof of a fact which the other does not." A conviction for killing in
the course of a rape cannot be had without proving all the elements of the
offense of rape. See United States v. Greene, 160 U.S.App.D.C. 21, 34, 489
F.2d 1145, 1158 (1973). Cf. Harris v. Oklahoma, 433 U.S. 682, 682-683, 97
S.Ct. 2912, 2912-13, 53 L.Ed.2d 1054. The Government contends that felony
murder and rape are not the "same" offense under Blockburger, since the
former offense does not in all cases require proof of a rape; that is, D.C.Code
22-2401 (1973) proscribes the killing of another person in the course of
committing rape or robbery or kidnaping or arson, etc. Where the offense to be
proved does not include proof of a rapefor example, where the offense is a
killing in the perpetration of a robberythe offense is of course different from
the offense of rape, and the Government is correct in believing that cumulative
punishments for the felony murder and for a rape would be permitted under
Blockburger. In the present case, however, proof of rape is a necessary element
of proof of the felony murder, and we are unpersuaded that this case should be
treated differently from other cases in which one criminal offense requires
proof of every element of another offense. There would be no question in this
regard if Congress, instead of listing the six lesser included offenses in the
alternative, had separately proscribed the six different species of felony murder
under six statutory provisions. It is doubtful that Congress could have imagined
that so formal a difference in drafting had any practical significance, and we
ascribe none to it.8 To the extent that the Government's argument persuades us

that the matter is not entirely free of doubt, the doubt must be resolved in favor
of lenity. See Simpson v. United States, 435 U.S. 6, 14-15, 98 S.Ct. 909, 914, 55
L.Ed.2d 70; see also n. 10, infra. Congress is clearly free to fashion exceptions
to the rule it chose to enact in 23-112. A court, just as clearly, is not.
Accordingly, notwithstanding the arguments advanced by the Government in
favor of imposing consecutive sentences for felony murder and for the
underlying felony, we do not speculate about whether Congress, had it
considered the matter, might have agreed.9 It is sufficient for present purposes
to observe that a congressional intention to change the general rule of 23-112
for the circumstances here presented nowhere clearly appears. It would
seriously offend the principle of the separation of governmental powers
embodied in the Double Jeopardy Clause of the Fifth Amendment if this Court
were to fashion a contrary rule with no more to go on than this case provides.10
17

For the foregoing reasons, the judgment of the District of Columbia Court of
Appeals is reversed, and the case is remanded to that court for further
proceedings consistent with this opinion.

18

It is so ordered.

19

Mr. Justice WHITE, concurring in part and concurring in the judgment.

20

Because the District of Columbia Court of Appeals did not take account of
23-112 of the District of Columbia Code, this is one of those exceptional cases
in which the judgment of that court is not entitled to the usual deference.
Pernell v. Southall Realty, 416 U.S. 363, 369, 94 S.Ct. 1723, 1726, 40 L.Ed.2d
198 (1974). This conclusion, in my opinion, need not rest on any constitutional
considerations.

21

I agree for the reasons given by the Court that in light of 23-112 and its
legislative history, the court below erred in holding that Congress intended to
authorize cumulative punishments in this case. But as I see it, the question is
one of statutory construction and does not implicate the Double Jeopardy
Clause. Had Congress authorized cumulative punishments, as the District of
Columbia Court of Appeals held in this case, imposition of such sentences
would not violate the Constitution. I agree with Mr. Justice BLACKMUN and
Mr. Justice REHNQUIST in this respect.

22

Mr. Justice BLACKMUN, concurring in the judgment.

23

I join the judgment of the Court and much of its opinion. I write separately

primarily to state my understanding of the effect, or what should be the effect,

of the Court's holding on general double jeopardy principles.
24

(1) I agree with the Court that it would be inappropriate in this case to accord
complete deference to the District of Columbia Court of Appeals' construction
of the local legislation at issue. In addition to the reasons offered in the Court's
opinion, ante, at 688-689, I would point out that the conclusions of the Court of
Appeals concerning the intent of Congress in enacting the felony-murder statute
were unsupported by appropriate references to the legislative history.
Moreover, that court ignored the effect of 23-112 of the District of Columbia
Code, which I have concluded is dispositive of this case. I view the case,
therefore, as one falling within the class of " 'exceptional situations where
egregious error has been committed.' " Pernell v. Southall Realty, 416 U.S. 363,
369, 94 S.Ct. 1723, 1726, 40 L.Ed.2d 198 (1974), quoting from Griffin v.
United States, 336 U.S. 704, 718, 69 S.Ct. 814, 820, 93 L.Ed. 993 (1949), and
Fisher v. United States, 328 U.S. 463, 476, 66 S.Ct. 1318, 1324, 90 L.Ed. 1382
(1946). Where such an error has been committed, this Court is barred neither by
Art. III nor past practice from overruling the courts of the District of Columbia
on a question of local law. Pernell, 416 U.S., at 365-369, 94 S.Ct., at 17241726.

25

(2) I agree with the Court that "the question whether punishments imposed by a
court after a defendant's conviction upon criminal charges are
unconstitutionally multiple cannot be resolved without determining what
punishments the Legislative Branch has authorized." Ante, at 688. I read the
opinions cited by the Court in support of that proposition, however, as
pronouncing a broader and more significant principle of double jeopardy law.
The only function the Double Jeopardy Clause serves in cases challenging
multiple punishments is to prevent the prosecutor from bringing more charges,
and the sentencing court from imposing greater punishments, than the
Legislative Branch intended. It serves, in my considered view, nothing more.
"Where consecutive sentences are imposed at a single criminal trial, the role of
the constitutional guarantee is limited to assuring that the court does not exceed
its legislative authorization by imposing multiple punishments for the same
offense." Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d
187 (1977).1

26

Dicta in recent opinions of this Court at least have suggested, and I now think
wrongly, that the Double Jeopardy Clause may prevent the imposition of
cumulative punishments in situations in which the Legislative Branch clearly
intended that multiple penalties be imposed for a single criminal transaction.
See Simpson v. United States, 435 U.S. 6, 11-13, 98 S.Ct. 909, 912-913, 55

L.Ed.2d 70 (1978); Jeffers v. United States, 432 U.S. 137, 155, 97 S.Ct. 2207,
2218, 53 L.Ed.2d 168 (1977) (plurality opinion). I believe that the Court should
take the opportunity presented by this case to repudiate those dicta squarely,
and to hold clearly that the question of what punishments are constitutionally
permissible is not different from the question of what punishments the
Legislative Branch intended to be imposed. I must concede that the dicta that
seemingly support a contrary view have caused confusion among state courts
that have attempted to decipher our pronouncements concerning the Double
Jeopardy Clause's role in the area of multiple punishments.2
27

(3) Finally, I agree with the Court that 23-112 expresses Congress' intent not
to authorize the imposition of consecutive sentences in cases in which the two
offenses involved do not each require proof of a fact that the other does not.
Ante, at 690-693. The question then remains whether the crimes of rape and
felony murder based upon that rape each require proof of a fact that the other
does not. I would agree that they do not, and for the reasons stated by the Court,
ante, at 693-694. I hasten to observe, however, that this result turns on a
determination of Congress' intent. The Court's holding today surely does not
require that the same result automatically be reached in a State where the
legislature enacts criminal sanctions clearly authorizing cumulative sentences
for a defendant convicted on charges of felony murder and the underlying
predicate felony. Nor does this Court's per curiam opinion in Harris v.
Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), holding that
successive prosecutions for felony murder and the underlying predicate felony
are constitutionally impermissible, require the States to reach an analogous
result in a multiple punishments case. Unfortunately, the rather obvious holding
in Harris and the dictum in Simpson have combined to spawn disorder among
state appellate courts reviewing challenges similar to the one presented here.3 I
would hope that today's holding will remedy, rather than exacerbate, the
existing confusion.

28

Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.

29

Historians have traced the origins of our constitutional guarantee against double
jeopardy back to the days of Demosthenes, who stated that "the laws forbid the
same man to be tried twice on the same issue. . . ." 1 Demosthenes 589 (J Vince
trans., 4th ed. 1970). Despite its roots in antiquity, however, this guarantee
seems both one of the least understood and, in recent years, one of the most
frequently litigated provisions of the Bill of Rights. This Court has done little to
alleviate the confusion, and our opinions, including ones authored by me, are
replete with mea culpa's occasioned by shifts in assumptions and emphasis.
Compare, e. g., United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43

L.Ed.2d 250 (1975), with United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57
L.Ed.2d 65 (1978) (overruling Jenkins ). See alsoBurks v. United States, 437
U.S. 1, 9, 98 S.Ct. 2141, 2146, 57 L.Ed.2d 1 (1978) (Our holdings on this
subject "can hardly be characterized as models of consistency and clarity").
Although today's decision takes a tentative step toward recognizing what I
believe to be the proper role for this Court in determining the permissibility of
multiple punishments, it ultimately compounds the confusion that has plagued
us in the double jeopardy area.
30

* In recent years we have stated in the manner of "black letter law" that the
Double Jeopardy Clause serves three primary purposes. First, it protects against
a second prosecution for the same offense after an acquittal. Second, it protects
against a second prosecution for the same offense after a conviction. Third, it
protects against multiple punishments for the same offense. See North Carolina
v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969);
Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187
(1977). See also ante, at 688 (opinion of the Court). Obviously, the scope of
each of these three protections turns upon the meaning of the words "same
offense," a phrase deceptively simple in appearance but virtually kaleidoscopic
in application. Indeed, we have indicated on at least one prior occasion that the
meaning of this phrase may vary from context to context, so that two charges
considered the same offense so as to preclude prosecution on one charge after
an acquittal or conviction on the other need not be considered the same offense
so as to bar separate punishments for each charge at a single proceeding. See
Brown v. Ohio, supra, at 166-167, n. 6, 97 S.Ct., at 2225-2226.

31

In the present case we are asked to decide whether the Double Jeopardy Clause
bars the imposition of separate punishments for the crimes of rape and felony
murder based on rape. Because the sentences challenged by petitioner were
imposed at a single criminal proceeding, this case obviously is not controlled
by precedents developed in the context of successive prosecutions. Thus, the
Court rightly eschews reliance upon Harris v. Oklahoma, 433 U.S. 682, 97
S.Ct. 2912, 53 L.Ed.2d 1054 (1977), where we concluded that the crimes of
robbery and felony murder predicated on that robbery were similar enough to
prevent the State of Oklahoma from prosecuting a person for the former
offense after convicting him of the latter offense. See ante, at 694 (opinion of
the Court). See also ante, at 698-699 (BLACKMUN, J., concurring in
judgment).

32

Having determined that this case turns on the permissibility of "multiple

punishments" imposed at a single criminal proceeding, the Court takes a
tentative step in what I believe to be the right direction by indicating that the

"dispositive question" here is whether Congress intended to authorize separate

punishments for the two crimes. Ante, at 689 (opinion of the Court). As Mr.
Justice BLACKMUN notes in his concurrence, this Court has not always been
so forthright in recognizing that Congress could, if it so desired, authorize
cumulative punishments for violation of two separate statutes, whether or not
those statutes defined "separate offenses" in some abstract sense. See ante, at
698. While we have hinted at this proposition in prior opinions, see, e. g.,
Brown v. Ohio, supra, at 165, 97 S.Ct., at 2225; Gore v. United States, 357 U.S.
386, 394, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958) (Warren, C. J.,
dissenting), we have just as often hedged our bets with veiled hints that a
legislature might offend the Double Jeopardy Clause by authorizing too many
separate punishments for any single "act." See, e. g., Simpson v. United States,
435 U.S. 6, 11-12, 98 S.Ct. 909, 912-913, 55 L.Ed.2d 70 (1978); Sanabria v.
United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 2181, 57 L.Ed.2d 43 (1978);
Jeffers v. United States, 432 U.S. 137, 155, 97 S.Ct. 2207, 2218, 53 L.Ed.2d
168 (1977) (plurality opinion). To the extent that this latter thesis assumes that
any particular criminal transaction is made up of a determinable number of
constitutional atoms that the legislature cannot further subdivide into separate
offenses, "it demands more of the Double Jeopardy Clause than it is capable of
supplying." Westen & Drubel, Toward a General Theory of Double Jeopardy,
1978 S.Ct.Rev. 81, 113. See also Note, Twice in Jeopardy, 75 Yale L.J. 262,
311-313 (1965).
33

Having come thus far with the Court and the concurrence, I here part company,
for it seems clear to me that, if the only question confronting this Court is
whether Congress intended to authorize cumulative punishments for rape and
for felony murder based upon rape, this Court need decide no constitutional
question whatsoever. Axiomatically, we are obligated to avoid constitutional
rulings where a statutory ruling would suffice. See Hagans v. Lavine, 415 U.S.
528, 549, 94 S.Ct. 1372, 1385, 39 L.Ed.2d 577 (1974); Ashwander v. TVA, 297
U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J.,
concurring). Thus, to the extent that the trial court exceeded its legislative
authorization in sentencing petitioner to consecutive sentences for rape and
felony murder where Congress intended the offenses to merge, our holding
should rest solely on our interpretation of the relevant statutes rather than on
vague references to "the principle of the separation of governmental powers
embodied in the Double Jeopardy Clause of the Fifth Amendment . . . ." Ante,
at 695 (opinion of the Court).

34

Like many of the false trails we have followed in this area, the Court's
confusion of statutory and constitutional inquiries is not without precedent.
Brown v. Ohio, contains dictum to the effect that, "[w]here consecutive

sentences are imposed at a single criminal trial," the Double Jeopardy Clause
prevents the sentencing court from "exceed[ing] its legislative authorization by
imposing multiple punishments for the same offense." 432 U.S., at 165, 97
S.Ct., at 2225. In support of this dictum, which I believe ill-considered, Brown
cited three cases: Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874); Bell v.
United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); and Gore v.
United States, supra. In doing so, it tied together three separate strands of cases
in what may prove to be a true Gordian knot.
35

In Ex parte Lange petitioner had been convicted under a statute authorizing a

punishment of either fine or imprisonment. The District Court nevertheless
sentenced him to a fine and imprisonment. Petitioner had paid his fine and had
begun to serve his sentence when the District Court, apparently recognizing its
mistake, held a new sentencing proceeding and resentenced him to
imprisonment only. Noting that petitioner had fully satisfied the relevant statute
by paying the fine, this Court held that he was entitled to protection from a
second punishment "in the same court, on the same facts, for the same statutory
offence." 18 Wall., at 168, 21 L.Ed. 872. As is borne out by subsequent cases,
the Double Jeopardy Clause as interpreted in Ex parte Lange prevents a
sentencing court from increasing a defendant's sentence for any particular
statutory offense, even though the second sentence is within the limits set by
the legislature. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23
L.Ed.2d 656 (1969); United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113,
114, 75 L.Ed. 354 (1931). See also United States v. Sacco, 367 F.2d 368 (CA2
1966); United States v. Adams, 362 F.2d 210 (CA6 1966); Kennedy v. United
States, 330 F.2d 26 (CA9 1964).

36

In Bell v. United States, supra, this Court considered a question wholly different
from that considered in Ex parte Lange and its progeny: the proper units into
which a statutory offense was to be divided. The petitioner in Bell had been
convicted of two counts of violating the Mann Act, 18 U.S.C. 2421 et seq.,
for carrying two women across state lines for an immoral purpose. Both counts
dealt with the same trip in the same car. The question presented to the Court
was whether simultaneous transportation of more than one woman in violation
of the Mann Act constituted multiple violations of that Act subjecting the
offender to multiple punishments. The Court noted that Congress could, if it so
desired, hinge the severity of the punishment on the number of women
involved. Finding no evidence of such an intent, the Court applied the
traditional "rule of lenity" and held that petitioner could only be punished for a
single count.

37

Most significantly for our purposes, Bell was based entirely upon this Court's

interpretation of the statute and the relevant legislative intent; it did not mention
the Double Jeopardy Clause at all. In finding congressional intent on the
appropriate unit of prosecution dispositive, the Court acted consistently with a
long line of cases based in English common law. In Crepps v. Durden, 2 Cowp.
640, 98 Eng.Rep. 1283 (K.B.1777), Lord Mansfield, writing for a unanimous
court, held that the sale of four loaves of bread on Sunday in violation of a
statute forbidding such sale constituted one offense, not four. According to
Lord Mansfield: "If the Act of Parliament gives authority to levy but one
penalty there is an end of the question. . . ." Id., at 646, 98 Eng.Rep., at 1287.
One hundred years later, this Court expressly adopted the reasoning of Crepps
that the proper unit of prosecution was completely dependent upon the
legislature's intent. See In re Snow, 120 U.S. 274, 283-286, 7 S.Ct. 556, 560562, 30 L.Ed. 658 (1887). We have consistently abided by this rule since that
time, noting on at least one occasion that "[t]here is no constitutional issue
presented" in such cases. See Ladner v. United States, 358 U.S. 169, 173, 79
S.Ct. 209, 211, 3 L.Ed.2d 199 (1958). See also United States v. Universal C. I.
T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952); Ebeling v.
Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915). Cf. Sanabria v.
United States, 437 U.S., at 69-70, 98 S.Ct., at 2181-2182 (successive
prosecutions).
38

Gore v. United States, the third case cited in Brown, presented an issue
analogous to, but slightly different from, that presented in Bell and the other
unit-of-prosecution cases, namely, the permissibility of consecutive sentences
when a defendant committed a single act that violated two or more criminal
provisions. This issue, the precise one confronting us today, has been litigated
in an astonishing number of statutory contexts with little apparent analytical
consistency. See, e. g., Simpson v. United States; Harris v. United States, 359
U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597 (1959); Heflin v. United States, 358 U.S.
415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Prince v. United States, 352 U.S. 322,
77 S.Ct. 403, 1 L.Ed.2d 370 (1957); Pereira v. United States, 347 U.S. 1, 74
S.Ct. 358, 98 L.Ed. 435 (1954); American Tobacco Co. v. United States, 328
U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); Holiday v. Johnston, 313 U.S.
342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941); Blockburger v. United States, 284
U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Morgan v. Devine, 237 U.S. 632,
35 S.Ct. 712, 59 L.Ed. 1153 (1915); Burton v. United States, 202 U.S. 344, 26
S.Ct. 688, 50 L.Ed. 1057 (1906); Carter v. McClaughry, 183 U.S. 365, 22 S.Ct.
181, 46 L.Ed. 236 (1902). In some of these cases the Court seems to have
recognized that it was attempting to divine legislative intent. See, e. g. Prince v.
United States, supra, at 328, 77 S.Ct., at 406; Morgan v. Devine, supra, at 638639, 35 S.Ct., at 713; Burton v. United States, supra, at 377, 26 S.Ct., at 697. In
other cases, the Court seemed to apply a "same evidence" test borrowed from

cases involving successive prosecutions.1 See, e. g. Pereira v. United States,

supra, at 9, 74 S.Ct., at 363; Carter v. McClaughry, supra, at 394-395, 22 S.Ct.,
at 192-193. In still others it is difficult to determine the precise basis for the
Court's decision. See, e. g. Harris v. United States, supra. As in the unit-ofprosecution cases, this Court has specified on at least one occasion that the
erroneous imposition of cumulative sentences in a single case raises no
constitutional issue at all. See Holiday v. Johnston, supra, at 349, 61 S.Ct., at
1017.
39

Unlike the Court, I believe that the Double Jeopardy Clause should play no role
whatsoever in deciding whether cumulative punishments may be imposed
under different statutes at a single criminal proceeding. I would analogize the
present case to our unit-of-prosecution decisions and ask only whether
Congress intended to allow a court to impose consecutive sentences on a person
in petitioner's position. To paraphrase Lord Mansfield's statement in Crepps v.
Durden, supra, that should be the end of the question. As even the Court's
analysis of the merits here makes clear, see ante, at 690-694, traditional
statutory interpretation as informed by the rule of lenity completely supplants
any possible additional protection afforded petitioner by the Double Jeopardy
Clause.

40

The difference in this context between a constitutional decision and a statutory

decision is not merely one of judicial semantics. Both the Court and the
concurrence appear to invoke the Double Jeopardy Clause to justify their
refusal to defer to the District of Columbia Court of Appeals' interpretation of
these locally applicable statutes. See ante, at 688 (opinion of the Court); ante,
at 696 (BLACKMUN, J., concurring in judgment). The mischief in this
approach, I believe, is well illustrated in a footnotefairly described as either
cryptic or tautological stating that "[t]he Due Process Clause of the Fourteenth
Amendment . . . would presumably prohibit state courts from depriving persons
of liberty or property as punishment for criminal conduct except to the extent
authorized by state law." Ante, at 690, n. 4 (opinion of the Court). The effect of
this and similar statements in the opinion of the Court, I fear, will be to raise
doubts about questions of state law that heretofore had been thought to be
exclusively the province of the highest courts of the individual States. To the
extent that the Court implies that a state court can ever err in the interpretation
of its own law and that such an error would create a federal question reviewable
by this Court, I believe it clearly wrong.2 For the question in such cases is not
whether the lower court "misread" the relevant statutes or its own common law,
but rather who does the reading in the first place.

II

41

Because the question before us is purely one of statutory interpretation, I

believe that we should adhere to our "longstanding practice of not overruling
the courts of the District on local law matters 'save in exceptional situations
where egregious error has been committed.' " Pernell v. Southall Realty, 416
U.S. 363, 369, 94 S.Ct. 1723, 1726, 40 L.Ed.2d 198 (1974), quoting from
Griffin v. United States, 336 U.S. 704, 718, 69 S.Ct. 814, 820, 93 L.Ed. 993
(1949). In the present case I would suggest that the lower court, far from
committing "egregious error," engaged in analysis much more sophisticated
than that employed by the Court herein and reached a conclusion that is not
only defensible, but quite probably correct.

42

The Court's attempt to determine whether Congress intended multiple

punishment in a case like petitioner's is really quite cramped. It looks first to
the legislative history surrounding the adoption of the relevant provisions and
finds that history inconclusive. See, ante, at 690, and n. 5. It then attempts to
mechanistically apply the rule of statutory construction employed by this Court
in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306
(1932). See ante, at 691-694. Under that test, two statutory provisions are
deemed to constitute the "same offense" so as to preclude imposition of
multiple punishments unless "each provision requires proof of a fact which the
other does not." 284 U.S., at 304, 52 S.Ct., at 182. In Blockburger, for example,
this Court determined that a provision forbidding the sale of certain drugs
except in or from the original stamped package and a provision forbidding the
selling of the same drugs "not in pursuance of a written order of the" purchaser
defined separate offenses because "Each of the offenses created requires proof
of a different element." Ibid. Thus, separate penalties could be imposed under
each statute, even though both offenses were based on the same sale.

43

Two observations about the Blockburger test are especially relevant in this
case. First, the test is a rule of statutory construction, not a constitutional
talisman.3 See Iannelli v. United States, 420 U.S. 770, 785, n. 17, 95 S.Ct.
1284, 1293, n. 17, 43 L.Ed.2d 616 (1975). Having already posited that the
Double Jeopardy Clause imposes no restraint upon a legislature's ability to
provide for multiple punishments, I believe it clear that a legislature could, if it
so desired, provide for separate punishments under two statutory provisions,
even though those provisions define the "same offense" within the meaning of
Blockburger. To take a simple example, a legislature might set the penalty for
assault at two years' imprisonment while setting the penalty for assault with a
deadly weapon as "two years for assault and an additional two years for assault
with a deadly weapon." Even though the former crime is obviously a lesser
included offense of the latter crimeor, in the rubric of Blockburger, the first
offense does not require proof of any fact that the second does notneither

Blockburger nor the Double Jeopardy Clause would preclude the imposition of
the "cumulative" sentence of two years.4
44

Second, the Blockburger test, although useful in identifying statutes that define
greater and lesser included offenses in the traditional sense, is less satisfactory,
and perhaps even misdirected, when applied to statutes defining "compound"
and "predicate" offenses. Strictly speaking, two crimes do not stand in the
relationship of greater and lesser included offenses unless proof of the greater
necessarily entails proof of the lesser. See Brown v. Ohio, 432 U.S., at 167-168,
97 S.Ct., at 2226. See also Black's Law Dictionary 1048 (rev. 4th ed. 1968). In
the case of assault and assault with a deadly weapon, proof of the latter offense
will always entail proof of the former offense, and this relationship holds true
regardless whether one examines the offenses in the abstract or in the context of
a particular criminal transaction.

45

On the other hand, two statutes stand in the relationship of compound and
predicate offenses when one statute incorporates several other offenses by
reference and compounds those offenses if a certain additional element is
present. To cite one example, 18 U.S.C. 924(c)(1) states that "[w]hoever . . .
uses a firearm to commit any felony for which he may be prosecuted in a court
of the United States . . . shall . . . be sentenced to a term of imprisonment for not
less than one year nor more than ten years." Clearly, any one of a plethora of
felonies could serve as the predicate for a violation of 924(c)(1).

46

This multiplicity of predicates creates problems when one attempts to apply

Blockburger. If one applies the test in the abstract by looking solely to the
wording of 924(c)(1) and the statutes defining the various predicate felonies,
Blockburger would always permit imposition of cumulative sentences, since no
particular felony is ever "necessarily included" within a violation of 924(c)
(1). If, on the other hand, one looks to the facts alleged in a particular
indictment brought under 924(c)(1), then Blockburger would bar cumulative
punishments for violating 924(c)(1) and the particular predicate offense
charged in the indictment, since proof of the former would necessarily entail
proof of the latter.

47

Fortunately, in the case of 924(c)(1) Congress made its intention explicit,

stating unequivocally that the punishment for violation of that statute should be
imposed "in addition to the punishment provided for the commission of [the
predicate] felony . . . ." 18 U.S.C. 924(c). But in the present case, where the
statutes at issue also stand in the relationship of compound and predicate
offenses, Congress has not stated its intentions so explicitly. The felony-murder
statute under consideration here provides:

48

"Whoever, being of sound memory and discretion, kills another purposely,

either of deliberate and premeditated malice or by means of poison, or in
perpetrating or attempting to perpetrate any offense punishable by
imprisonment in the penitentiary, or without purpose so to do kills another in
perpetrating or in attempting to perpetrate any arson, . . . rape, mayhem,
robbery, or kidnapping, or in perpetrating or attempting to perpetrate any
housebreaking while armed with or using a dangerous weapon, is guilty of
murder in the first degree." D.C.Code 22-2401 (1973).

49

The rape statute under consideration reads, in relevant part:

50

"Whoever has carnal knowledge of a female forcibly and against her will . . .
shall be imprisoned for any term of years or for life." D.C.Code 22-2801
(1973).

51

If one tests the above-quoted statutes in the abstract, one can see that rape is not
a lesser included offense of felony murder, because proof of the latter will not
necessarily require proof of the former. One can commit felony murder without
rape and one can rape without committing felony murder. If one chooses to
apply Blockburger to the indictment in the present case, however, rape is a
"lesser included offense" of felony murder because, in this particular case, the
prosecution could not prove felony murder without proving the predicate rape.

52

Because this Court has never been forced to apply Blockburger in the context of
compound and predicate offenses,5 we have not had to decide whether
Blockburger should be applied abstractly to the statutes in question or
specifically to the indictment as framed in a particular case. Our past decisions
seem to have assumed, however, that Blockburger analysis stands or falls on
the wording of the statutes alone. Thus, in Blockburger itself the Court stated
that "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." 284 U.S., at 304, 52 S.Ct., at 182
(emphasis added). More recently, we framed the test as whether " 'each statute
requires proof of an additional fact which the other does not. . . ." Brown v.
Ohio, supra, at 166, 97 S.Ct., at 2226 quoting Morey v. Commonwealth, 108
Mass. 433, 434 (1871) (emphasis added). See also Iannelli v. United States,
420 U.S., at 785, n. 17, 95 S.Ct., at 1294 n. 17 ("[T]he Court's application of
the [Blockburger] test focuses on the statutory elements of the offense"); M.
Friedland, Double Jeopardy 212-213 (1969) (noting the two possible
interpretations and pointing out that "the word 'provision' is specifically used in
the test" as stated in Blockburger ). Moreover, because the Blockburger test is

simply an attempt to determine legislative intent, it seems more natural to apply

it to the language as drafted by the legislature than to the wording of a
particular indictment.
53

The Court notes this ambiguity but chooses instead to apply the test to the
indictment in the present case.6 See ante, at 693-694. In doing so, it offers only
two reasons for rejecting what would seem to be the more plausible
interpretation of Blockburger. First, the Court notes that Congress could have
broken felony murder down in six separate statutory provisions, one for each of
the predicate offenses specified in 22-2401, thereby insuring that, under
Blockburger, rape would be a lesser included offense of murder in the course of
rape. According to the Court, "[i]t is doubtful that Congress could have
imagined that so formal a difference in drafting had any practical significance,
and we ascribe none to it." Ante, at 694. The short answer to this argument is
that Congress did not break felony murder down into six separate statutory
provisions. Thus, it hardly avails the Court to apply Blockburger to a statute
that Congress did not enact. More significantly, however, I believe that the
Court's example illustrates one of my central points: when applied to compound
and predicate offenses, the Blockburger test has nothing whatsoever to do with
legislative intent, turning instead on arbitrary assumptions and syntactical
subtleties. Cf. n. 6, supra. If the polestar in this case is to be legislative intent, I
see no reason to apply Blockburger unless it advances that inquiry.

54

Second, the Court asserts that "To the extent that . . . the matter is not entirely
free of doubt, the doubt must be resolved in favor of lenity." Ante, at 694. This
assertion, I would suggest, forms the real foundation of the Court's decision.
Finding no indication in the legislative history whether Congress intended
cumulative punishment, and applying Blockburger with insolubly ambiguous
results, the Court simply resolves its doubts in favor of petitioner and concludes
that the rape committed by petitioner must merge into his conviction for felony
murder. In doing so, the Court neglects the one source that should have been
the starting point for its entire analysis: the lower court's construction of the
relevant statutes.

55

Unlike this Court, the District of Columbia Court of Appeals looked beyond the
ambiguous legislative history and the inconclusive Blockburger test to examine
the common-law roots of the crime of felony murder and to consider the
societal interests protected by the relevant statutes. As for the first source, the
lower court concluded from the history of felony murder at common law that
"while the underlying felony is an element of felony murder it serves a more
important function as an intent-divining mechanism" and that merger of the two
offenses was therefore "inappropriate." 379 A.2d 1152, 1160 (1977). In so

reasoning, the lower court acted in conformity with this Court's long tradition of
reading criminal statutes enacted by Congress "in the light of the common law.
. . ." United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882). See also
Morissette v. United States, 342 U.S. 246, 262-263, 72 S.Ct. 240, 249, 96 L.Ed.
288 (1952).
56

In addition to looking to the common law for assistance in determining

Congress' intent, the lower court examined "the societal interests protected by
the statutes under consideration." 379 A.2d, at 1158-1159. Because 22-2801
was designed "to protect women from sexual assault" while 22-2401 was
intended "to protect human life," the court concluded that cumulative
punishment was permissible. 379 A.2d, at 1159. Indeed, the Blockburger test
itself could be viewed as nothing but a rough proxy for such analysis, since, by
asking whether two separate statutes each include an element the other does
not, a court is really asking whether the legislature manifested an intention to
serve two different interests in enacting the two statutes.

III
57

In sum, I find the lower court's reliance upon articulated considerations much
more persuasive than this Court's capitulation to supposedly hopeless
ambiguity. But even if the case were closer, I do not see how the lower court's
conclusion could be classified as "egregious error" so as to justify our
superimposing our own admittedly dubious construction of the statutes in
question on the District of Columbia. Unless we are going to forgo deference to
the interpretation of the highest court of the District of Columbia on matters of
local applicability and are going to push several other well-recognized
principles of statutory and constitutional construction out of shape, with
consequences for the federal system for the 50 States, I would hope that the
Court's decision would be one ultimately based on the "rule of lenity." Because
I believe that the question confronting us is purely one of statutory construction
and because I believe the analysis indulged in by the Court of Appeals for the
District of Columbia comes far closer to the proper ascertainment of
congressional intent than does this Court's opinion, I would affirm the judgment
of the District of Columbia Court of Appeals.

The jury also convicted the petitioner of other felonies, but these convictions
were set aside by the District of Columbia Court of Appeals, except for a
second-degree murder conviction upon which the petitioner had received a
concurrent sentence. The sentence itself was vacated by the appellate court.

The statute also provides for a sentence of death upon conviction for firstdegree murder, but that provision has been held to be unconstitutional. See
United States v. Stokes, 365 A.2d 615, 616 n. 4 (D.C.1976); United States v.
Lee, 160 U.S.App.D.C. 118, 123, 489 F.2d 1242, 1247 (1973).

This is not to say that there are not constitutional limitations upon this power.
See, e. g., Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982; Roe
v. Wade, 410 U.S. 113, 164, 93 S.Ct. 705, 732, 35 L.Ed.2d 147; Stanley v.
Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542; Loving v.
Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010; Robinson v.
California, 370 U.S. 660, 666-667, 82 S.Ct. 1417, 1420-21, 8 L.Ed.2d 758.

Although the courts of the District of Columbia were created by Congress

pursuant to its plenary Art. I power to legislate for the District, see Art. I, 8,
cl. 17; D.C.Code 11-101(2) (1973), and are not affected by the salary and
tenure provisions of Art. III, those courts, no less than other federal courts, may
constitutionally impose only such punishments as Congress has seen fit to
authorize.
The Court has held that the doctrine of separation of powers embodied in the
Federal Constitution is not mandatory on the States. Dreyer v. Illinois, 187 U.S.
71, 84, 23 S.Ct. 28, 32, 47 L.Ed. 79. See Mayor of Philadelphia v. Educational
Equality League, 415 U.S. 605, 615, 94 S.Ct. 1323, 1330, 39 L.Ed.2d 630, and
n. 13; Sweezy v. New Hampshire, 354 U.S. 234, 255, 77 S.Ct. 1203, 1214, 1
L.Ed.2d 1311; id., at 255, 256-257, 77 S.Ct., at 1214, 1214-1215 (Frankfurter,
J., concurring in result). It is possible, therefore, that the Double Jeopardy
Clause does not, through the Fourteenth Amendment, circumscribe the penal
authority of state courts in the same manner that it limits the power of federal
courts. The Due Process Clause of the Fourteenth Amendment, however, would
presumably prohibit state courts from depriving persons of liberty or property
as punishment for criminal conduct except to the extent authorized by state law.

Before 1962, conviction of first-degree murder in the District of Columbia led

to a mandatory sentence of death by hanging. See Act of Mar. 3, 1901, 801,
31 Stat. 1321. Accordingly, the question did not arise whether the sentence for
another felony could run consecutively to that for first-degree murder. In 1962
Congress replaced the mandatory death penalty with the present language of
D.C.Code 22-2404 (1973), which allows, as an alternative to a penalty of
death, a sentence of 20 years to life imprisonment. Pub.L. 87-423, 76 Stat. 46.
Congress did not, however, address the matter of consecutive sentences in this
amendatory legislation.
The parties in the present case are in agreement that Congress intended a

person convicted of felony murder to be subject to the same penalty as a person

convicted of premeditated murder, see, e. g., 108 Cong.Rec. 4128-4129 (1962)
(remarks of Sen. Hartke), and subject to more severe punishment than persons
convicted of second-degree murder, see S.Rep.No.373, 87th Cong., 1st Sess., 2
(1961); H.R.Rep.No.677, 87th Cong., 1st Sess., 2 (1961). The parties disagree
as to whether the consecutive sentences in this case are in accord with that
congressional intent. The petitioner argues that if a consecutive sentence for
rape were permitted, he would be punished more severely than if he had
committed premeditated murder. The Government counters that the relevant
comparison is with the sentences permitted for premeditated murder plus rape,
which can be consecutive. Likewise, the Government argues that since
consecutive sentences would be permissible for second-degree murder and
rape, such sentences should be permitted here to avoid punishing felony murder
and rape less harshly. In our view of this case, this controversy need not now be
resolved.
6

The Government would read D.C.Code 23-112 to mean that courts may
ignore the Blockburger rule and freely impose consecutive sentences "whether
or not" the statutory offenses are different under the rule. While this may be a
permissible literal reading of the statute, it would lead to holding that the
statute authorizes consecutive sentences for all greater and lesser included
offensesan extraordinary view that the Government itself disavows. Such an
improbable construction of the statute would, moreover, be at odds with the
evident congressional intention of requiring federal courts to adhere to the
Blockburger rule in construing the penal provisions of the District of Columbia
Code. See infra, this page and 1439.

There may be instances in which Congress has not intended cumulative

punishments even for offenses that are different under the general provision
contained in 23-112. For example, in this case the District of Columbia Court
of Appeals vacated the petitioner's sentence for second-degree murder, for the
reason that, in the court's view, second-degree murder is a lesser included
offense of first-degree felony murder, notwithstanding the fact that each offense
requires proof of an element that the other does not. The correctness of the
Court of Appeals' ruling in this regard is not an issue in this case.

Contrary to the view of the dissenting opinion, we do not in this case apply the
Blockburger rule to the facts alleged in a particular indictment. Post, at 708712. We have simply concluded that, for purposes of imposing cumulative
sentences under D.C.Code 23-112, Congress intended rape to be considered a
lesser offense included within the offense of a killing in the course of rape.

See n. 5, supra.

10

This view is consistent with the settled rule that " 'ambiguity concerning the
ambit of criminal statutes should be resolved in favor of lenity,' " United States
v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488, quoting Rewis v.
United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493. See
Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70; Ladner v.
United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199; Bell v. United States,
349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905. As the Court said in the Ladner
opinion: "This policy of lenity means that the Court will not interpret a federal
criminal statute so as to increase the penalty that it places on an individual
when such an interpretation can be based on no more than a guess as to what
Congress intended." 358 U.S., at 178, 79 S.Ct., at 214.

The Court in Brown cited the following decisions in support of its observations
concerning the role of the Double Jeopardy Clause in multiple punishment
cases: Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405
(1958); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955);
and Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874). See also Ashe v.
Swenson, 397 U.S. 436, 460, n. 14, 90 S.Ct. 1189, 1202, 25 L.Ed.2d 469 (1970)
(BRENNAN, J., concurring); M. Friedland, Double Jeopardy 205, 212 (1969);
Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978
S.Ct.Rev. 81, 112-113, 158-159; Note, Twice in Jeopardy, 75 Yale L.J. 262,
302-313 (1965).

See People v. Hughes, 85 Mich.App. 674, 272 N.W.2d 567 (1978); id., at 683687, 272 N.W.2d, at 569-571 (Bronson, J., concurring); id., at 687-696, 272
N.W.2d, at 571-575 (Walsh, J., dissenting); Ennis v. State, 364 So.2d 497
(Fla.App.1978); id., at 500 (Grimes, C. J., concurring); and State v. Frye, 283
Md. 709, 393 A.2d 1372 (1978); id., at 725-726, 393 A.2d, at 1380-1381
(Murphy, C. J., concurring). In each of these state cases, the panels divided on
the meaning of this Court's pronouncements respecting the Double Jeopardy
Clause's prohibition against multiple punishments. See also cases cited in n. 3,
infra.

Compare People v. Anderson, 62 Mich.App. 475, 233 N.W.2d 620 (1975) (a

case in which a state court concluded, based on relevant indicia of legislative
intent, that cumulative punishments for armed robbery and a felony murder
based upon that robbery were not intended), with State v. Pinder, 375 So.2d
836 (Fla.1979); State v. Frye, 283 Md. 709, 393 A.2d 1372 (1978); State v.
Innis, R.I., 391 A.2d 1158 (1978), cert. granted, 440 U.S. 934, 99 S.Ct. 1277,
59 L.Ed.2d 492 (1979); Mitchell v. State, Ind., 382 N.E.2d 932 (1978); Briggs
v. State, 573 S.W.2d 157 (Tenn.1978) (the latter decisions, erroneously I
believe, gave controlling effect to Harris in challenges to cumulative
punishments for felony murder and the underlying felony).

The "same evidence" test was first formulated in Morey v. Commonwealth, 108
Mass. 433, 434 (1871), where the Supreme Judicial Court of Massachusetts
held:
"A conviction or acquittal upon one indictment is no bar to a subsequent
conviction and sentence upon another, unless the evidence required to support a
conviction upon one of them would have been sufficient to warrant a conviction
upon the other. The test is not whether the defendant has already been tried for
the same act, but whether he has been put in jeopardy for the same offence. A
single act may be an offence against two statutes; and if each statute requires
proof of an additional fact which the other does not, an acquittal or conviction
under either statute does not exempt the defendant from prosecution and
punishment under the other."
This Court has placed varying degrees of reliance upon this test both in the
context of successive prosecutions, see, e. g., Brown v. Ohio, 432 U.S. 161, 97
S.Ct. 2221, 53 L.Ed.2d 187 (1977); Gavieres v. United States, 220 U.S. 338,
342, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911), and in the context of multiple
punishments imposed at a single criminal proceeding. See, e. g., Blockburger v.
United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Carter v.
McClaughry, 183 U.S. 365, 22 S.Ct. 181, 46 L.Ed. 236 (1902). See also infra,
at 707-714.

We are not dealing here, of course, with a case where a state court has engaged
in "retroactive lawmaking" by interpreting a local statute in an unforeseeable
manner. Compare Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12
L.Ed.2d 894 (1964), with Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d
185 (1975).

It should not matter whether the Blockburger test enters this case as a common
canon of statutory construction, see Iannelli v. United States, 420 U.S. 770,
785, n. 17, 95 S.Ct. 1284, 1293, n. 17, 43 L.Ed.2d 616 (1975), or through the
"less than felicitous" phrasing of D.C.Code 23-112. See ante, at 691 (opinion
of the Court). In either case, the dispositive question is whether the legislature
intended to allow multiple punishments, and the Blockburger test should be
employed only to the extent that it advances that inquiry.

In this regard, see also the discussion of the sentencing scheme under 18 U.S.C.
924(c)(1), infra, at 709.

But see Simpson v. United States, 435 U.S. 6, 11-12, and n. 6, 98 S.Ct. 909,
912-913, n. 6, 55 L.Ed.2d 70 (1978) (reserving application of Blockburger in
context of 18 U.S.C. 924(c)); Jeffers v. United States, 432 U.S. 137, 149-150,
97 S.Ct. 2207, 2215-2216, 53 L.Ed.2d 168 (1977) (BLACKMUN, J.)

(assuming, arguendo, that 21 U.S.C. 846 is a lesser included offense of 21

U.S.C. 848). But see also American Tobacco Co. v. United States, 328 U.S.
781, 788, 66 S.Ct. 1125, 1128, 90 L.Ed. 1575 (1946) (finding, under
Blockburger, that conspiracies to violate 1 and 2 of the Sherman Act could
be punished separately).
6

The Court denies that it applies the Blockburger test to the indictment in this
case, asserting instead that it merely concludes that "rape [is] to be considered a
lesser offense included within the offense of a killing in the course of rape."
Ante, at 694, n. 8. Our disagreement on this matter turns on the elusive meaning
of the word "offense." Technically, 22-2401 defines only one offense, murder
in the first degree, which can be committed in any number of ways. Even if the
inquiry is limited to the "sub-offense" of felony murder, 22-2401 indicates
that a person may be convicted if he kills purposely in the course of committing
any felony or kills even accidentally in the course of committing one of six
specified felonies. Only by limiting the inquiry to a killing committed in the
course of a rape, a feat that cannot be accomplished without reference to the
facts alleged in this particular case, can the Court conclude that the predicate
offense is necessarily included in the compound offense under Blockburger.
Because this Court has never before had to apply the Blockburger test to
compound and predicate offenses, see n. 5, supra, and accompanying text, there
is simply no precedent for parsing a single statutory provision in this fashion.