Whalen v. United States

445 U.S. 684, 100 S. Ct. 1432, 63 L. Ed. 2d 715, 1980 U.S. LEXIS 15

• Court: Supreme Court of the United States
• Decided: April 16, 1980
• Docket: 78-5471
• Status: Published

Opinions

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 fife 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.

I

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 . . . suggests] 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.

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. 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; see also Griffin v. United States, 336 U. S. 704, 717-718; Fisher v. United States, 328 U. S. 463, 476. 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 law — both 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 (footnote omitted).

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. Ill 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; Scripto, Inc. v. Carson, 362 U. S. 207, 210; Murdock v. Memphis, 20 Wall. 590, 632-633.

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 (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; id., at 394 (Warren, C. J., dissenting on statutory grounds); Bell v. United States, 349 U. S. 81, 82; Ex parte Lange, 18 Wall. 163, 176; see also Brown v. Ohio, 432 U. S. 161, 165; United States v. Universal C. I. T. Credit Corp., 344 U. S. 218; Blockburger v. United States, 284 U. S. 299; Ebeling v. Morgan, 237 U. S. 625.

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. Cf. Bozza v. United States, 330 U. S. 160, 167. 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 imper-missibly sentenced. The dispositive question, therefore, is whether Congress did so provide.

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; United States v. Hudson & Goodwin, 7 Cranch 32, 34.³ 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

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 iii 1970. That statute is § 23-112 of the District of Columbia Code (1973), and it provides as follows:

“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.)

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 rüle of statutory construction stated by this Court in Blockburger v. United States, 284 U. S. 299, 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. See also Brown v. Ohio, 432 U. S., at 166; Iannelli v. United States, 420 U. S. 770; Gore v. United States, 357 U. S. 386.

The legislative history rather clearly confirms that Congress intended the federal courts to adhere strictly to the Block-burger 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 Committee 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:

“To obviate the need for the courts to search for legislative intent, section 23-112 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.”

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.

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. The Government contends that felony murder and rápe 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 kidnap-ing or arson, etc. Where the offense to be proved does not include proof of a rape — for example, where the offense is a killing in the perpetration of a robbery — the 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; 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

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.

It is so ordered.

1 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.

2 The statute also provides for a sentence of death upon conviction for first-degree 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).

3 This is not to say that there are not constitutional limitations upon this power. See, e. g., Coker v. Georgia, 433 U. S. 584; Roe v. Wade, 410 U. S. 113, 164; Stanley v. Georgia, 394 U. S. 557, 568; Loving v. Virginia, 388 U. S. 1, 12; Robinson v. California, 370 U. S. 660, 666-667.

4 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. See Mayor of Philadelphia v. Educational Equality League, 415 U. S. 605, 615, and n. 13; Sweezy v. New Hampshire, 354 U. S. 234, 255; id., at 255, 256-257 (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.

5 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 offenses — an 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 693.

7 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.

8 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 708-712. 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.

9 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, quoting Rewis v. United States, 401 U. S. 808, 812. See Simpson v. United States, 435 U. S. 6; Ladner v. United States, 358 U. S. 169; Bell v. United States, 349 U. S. 81. 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.