# Jones v. Thomas/Dissent Scalia

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* Opinion of the Court
* Dissenting Opinions Brennan Scalia
Justice SCALIA, with whom Justice STEVENS joins, and with whom Justice BRENNAN and Justice MARSHALL join as to all but the footnote, dissenting.
This is not the first time we have been called upon to consider whether a criminal defendant's satisfaction of one of two alternative penalties prevents a court from imposing (or reimposing) the second penalty in a subsequent proceeding. In Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874), the first case to recognize the Double Jeopardy Clause's protection against multiple punishment, petitioner was convicted of stealing mailbags from the Post Office, under a statute carrying a punishment of either imprisonment for up to one year or a fine of up to $200. The presiding judge erroneously imposed the maximum of both punishments. After petitioner had paid his fine (which was remitted by the Clerk of Court to the United States Treasury) and had spent five days in prison, the judge realized his mistake and entered an order vacating the former judgment and resentencing petitioner to one year in prison. This Court stated that because petitioner had "fully performed, completed, and endured one of the alternative punishments which the law prescribed for that offence," id., at 176, the court's "power to punish for that offence was at an end," ibid. (emphasis added). Holding that the judge's second order violated petitioner's rights under the Double Jeopardy Clause, the Court ordered that petitioner be freed.
More recently, in In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943), a District Judge found petitioner guilty of contempt and sentenced him to six months in prison and a $500 fine. Petitioner began serving his prison sentence, and his attorney paid the fine to the Clerk of the Court three days later. The fine was not paid into the Treasury. Later that day, having discovered that the relevant statute permitted imprisonment or fine, but not both, the court issued a new order amending the sentence to omit the fine and instructed the Clerk to return the $500 to petitioner. Petitioner refused to accept the money. We held that order to be "a nullity." Id., at 52, 63 S.Ct., at 471.
"When, on October 1, the fine was paid to the clerk and
receipted for by him, the petitioner had complied with a portion of the sentence which could lawfully have been imposed. As the judgment of the court was thus executed so as to be a full satisfaction of one of the two alternative penalties of the law, the power of the court was at an end." Ibid.
The present case is indistinguishable from Lange and Bradley. Here, as there, only one of two available punishments could lawfully be imposed for the conduct in question; and here, as there, the defendant fully satisfied one of the two. Under the law of the State of Missouri, respondent's actions in the Reid Auto Parts store on November 8, 1972, allowed the State to convict him of attempted armed robbery, with a maximum penalty of 15 years in prison, or of felony murder, with a maximum penalty of life imprisonment. The State could not convict him or punish him for both offenses. Therefore, once respondent "fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone." Ex parte Lange, supra, 18 Wall. at 176. In the present case, as in Bradley, the State attempted in a second proceeding to "give back" the detriment respondent had suffered as a result of the fully satisfied alternative-by crediting the 15-year sentence for attempted armed robbery that he had already served against the second (life) sentence that had been imposed. But I see no more reason to allow a crediting here than there was to allow a refund in Bradley. Does this produce, as the Court alleges, an "anomalous resul[t]," ante, at 386, and an "unjustified windfal[l]," ante, at 387? Undoubtedly. Just as it did in Bradley. And just as the Double Jeopardy Clause often does (to an even greater degree) in other contexts-where, for example, a prosecutorial error after the jury has been impaneled permits the defendant to go off scot free. E.g., Downum v. United States, 372 U.S. 734, 737-738, 83 S.Ct. 1033, 1035-1036, 10 L.Ed.2d 100 (1963).
The Court candidly recognizes that a "[s]trict application of Bradley," ante, at 383, compels the conclusion that requiring respondent to serve the life sentence after completion of the 15-year sentence violates the Double Jeopardy Clause. It advances three related arguments, however, to explain why "strict application" can be avoided. I find none of them persuasive.
Most readily answered is the contention tha "Bradley and Lange both involved alternative punishments that were prescribed by the legislature for a single criminal act." Ante, at 384. This in no way distinguishes those cases, since it describes the facts of this case just as well. Although the sentencing court undoubtedly thought attempted armed robbery and felony murder "to be separately punishable offenses," ibid., that court, we now know, was wrong. Under the correct view of Missouri law, the 15-year sentence and the life sentence were "alternative punishments . . . prescribed by the legislature for a single criminal act," ibid. The Court states that "[i]t cannot be suggested seriously that the legislature intended an attempted robbery conviction to suffice as an alternative sanction for murder," ante, at 384-385. Perhaps not, but it might also have been said in Lange that the legislature did not intend a mere $200 fine for the gravity of offense at issue there. Just as the judge in that case frustrated the probable legislative intent by inadvertently imposing the lesser penalty that was available, unaware that it would preclude the greater, so the judge in the present case frustrated the probable legislative intent by inadvertently entering the lesser conviction and sentence, unaware that it would preclude the greater. But that is beside the point. The Double Jeopardy Clause is not a device designed to assure effectuation of legislative intent-but to the contrary is often the means of frustrating it. The relevant question pertaining to legislative intent is not whether the Missouri Legislature intended an attempted armed robbery sentence for the crime of murder, but whether it intended that both a felony-murder sentence and an attempted armed robbery sentence could be imposed for the same crime. The Missouri Supreme Court has said not. See State v. Morgan, 612 S.W.2d 1 (1981); State v. Olds, 603 S.W.2d 501, 510 (1980). That being so, if respondent has served one of the two alternative sentences that could lawfully be imposed, he cannot be required to serve the other as well.
Second, the Court distinguishes Bradley on the ground that there "[t]he alternative sentences . . . were of a different type, fine and imprisonment," ante, at 384, so that it would not have been possible to credit the satisfied fine against the as-yet-unserved sentence. It is difficult to imagine, however, why the difference between a credit and a refund (which could have been made in Bradley ) should be of constitutional dimensions insofar as the Double Jeopardy Clause is concerned. Bradley, of course, did not rely upon any difference in the nature of the two punishments, but upon the mere fact that one of them had been completely executed. "As the judgment of the court was thus executed so as to be a full satisfaction of one of the alternative punishments of the law, the power of the court was at an end." 318 U.S., at 52, 63 S.Ct., at 471. Likewise Lange:
"[I]n that very case, and for that very offence, the prisoner had fully performed, completed, and endured one of the alternative punishments which the law prescribed. . . . [T]hus . . . [the court's] power to punish for that offence was at an end. . . . [T]he authority of the court to punish the prisoner was gone. The power was exhausted; its further exercise was prohibited." 18 Wall., at 176.
Finally, the Court states that in the multiple punishments context, " 'the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.' " Ante, at 381, quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). If that were true it would certainly permit proceedings quite foreign to our criminal-law tradition. If, for example, a judge imposed only a 15-year sentence under a statute that permitted 15 years to life, he could-as far as the Court's understanding of the Double Jeopardy Clause is concerned-have second thoughts after the defendant has served that time, and add on another 10 years. I am sure that cannot be done, because the Double Jeopardy Clause is a statute of repose for sentences as well as for proceedings. Done is done. The Court is able to quote Hunter for this unusual result only because its quotation is incomplete. What we said in that case, and have subsequently repeated in other cases, is that "[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Ibid. See also id., at 368, 103 S.Ct., at 679 (The Double Jeopardy Clause does not "preclud[e] the imposition, in a single trial, of cumulative punishments pursuant to those statutes") (emphasis added); id., at 368-369, 103 S.Ct., at 679-680 ("Where . . . a legislature specifically authorizes cumulative punishment under two statutes . . . the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial ") (emphasis added).
In both of the cases in which we have applied the Court's "legislative intent" formulation of the Double Jeopardy Clause to uphold the imposition of multiple penalties, the penalties had been imposed (or would have been imposed) in a single proceeding. See Missouri v. Hunter, supra (defendant convicted of both armed criminal action and the underlying felony of armed robbery in single trial); Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (defendant pleaded guilty to two lesser offenses and trial court dismissed three greater offenses, stating that prosecution would be barred under Double Jeopardy Clause). But when the added punishment, even though authorized by the legislature, was imposed in a later proceeding, we held that the Double Jeopardy Clause was a bar. In United States v. Halper, 490 U.S. 435, 451, n. 10, 109 S.Ct. 1892, 1903 n. 10, 104 L.Ed.2d 487 (1989), we said:
"That the Government seeks the civil penalty in a second proceeding is critical in triggering the protections of the Double Jeopardy Clause. Since a legislature may authorize cumulative punishment under two statutes for a single course of conduct, the multiple-punishment inquiry in the context of a single proceeding focuses on whether the legislature actually authorized the cumulative punishment. See Ohio v. Johnson, 467 U.S. 493, 499-500 [104 S.Ct. 2536, 2540-2541, 81 L.Ed.2d 425] (1984). On the other hand, when the Government has already imposed a criminal penalty and seeks to impose additional punishment in a second proceeding, the Double Jeopardy Clause protects against the possibility that the Government is seeking the second punishment because it is dissatisfied with the sanction obtained in the first proceeding."
See also id., at 450, 109 S.Ct., at 1903 ("In a single proceeding the multiple punishment issue would be limited to ensuring that the total punishment did not exceed that authorized by the legislature") (emphasis added); ibid. ("Nor does the decision [in Halper ] prevent the Government from seeking and obtaining both the full civil penalty and the full range of statutorily authorized civil penalties in the same proceeding ") (emphasis added).
In the present case, of course, it was not the same proceeding but a second proceeding that added time to the 15-year sentence the defendant had already satisfied for his crime. In those circumstances, our cases establish that the relevant double jeopardy criterion is not only whether the total punishment authorized by the legislature has been exceeded, but also whether the addition upsets the defendant's legitimate "expectation of finality in the original sentence," United States v. DiFrancesco, 449 U.S. 117, 139, 101 S.Ct. 426, 438, 66 L.Ed.2d 328 (1980). In the latter case w upheld against a double jeopardy challenge a statute that allowed the Government to appeal as inadequate a District Court's sentence for a "dangerous special offender." We did so because, by reason of the appeal provision itself, the defendant had no legitimate expectation of finality in the original sentence. See id., at 136-137, 101 S.Ct., at 437-438.
We applied the same rule in Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985) (per curiam ). There the defendant was convicted of 56 counts of forgery and 56 counts of theft. The trial court sentenced him to a term of imprisonment on one theft count and a term of probation on one forgery count, and suspended sentence on the remaining counts. On appeal, the Supreme Court of Pennsylvania held that the theft count on which the defendant had been sentenced was barred by the applicable statute of limitations, and denied, on double jeopardy grounds, the State's request that the case be remanded for resentencing on the nonbarred theft counts. We did not reverse that disposition outright, but remanded so that the Supreme Court of Pennsylvania might consider, pursuant to DiFrancesco, "whether the Pennsylvania laws in effect at the time allowed the State to obtain review of the sentences on the counts for which the sentence had been suspended." 474 U.S., at 30, 106 S.Ct., at 354. It is clear from DiFrancesco and Goldhammer that when a sentence is increased in a second proceeding "the application of the double jeopardy clause . . . turns on the extent and legitimacy of a defendant's expectation of finality in that sentence. If a defendant has a legitimate expectation of finality, then an increase in that sentence is prohibited. . . ." United States v. Fogel, 264 U.S.App.D.C. 292, 302, 829 F.2d 77, 87 (1987) (Bork, J.).
The principle enunciated in DiFrancesco also explains our decision in Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947). There the defendant was convicted of operating an illegal still, a crime which carried a mandatory sentence of a $100 fine and a term in prison. The trial court originally sentenced the defendant only to the term of imprisonment. When the court realized its mistake five hours later, it recalled the defendant for resentencing and imposed the $100 fine as well. We held that the resentencing did not violate the defendant's rights under the Double Jeopardy Clause. There, as in DiFrancesco, the defendant could not argue that his legitimate expectation of finality in the original sentence had been violated, because he was charged with knowledge that the court lacked statutory authority to impose the subminimum sentence in the first instance. See 330 U.S., at 166, 167, 67 S.Ct., at 648, 649. See also United States v. Arrellano-Rios, 799 F.2d 520, 524 (CA9 1986) (stating that defendant can have no legitimate expectation of finality in an illegal sentence); United States v. Edmondson, 792 F.2d 1492, 1496, n. 4 (CA9 1986) (same).
Applying DiFrancesco and Bozza here, it seems to me respondent must prevail. There is no doubt that the court had authority to impose the 15-year sentence, and respondent therefore had a legitimate expectation of its finality. There are only two grounds on which that could possibly be contested: (1) that the court had authority to impose a 15-year sentence, but not both a 15-year sentence and life, or (2) that his legitimate expectation was not necessarily 15 years, but rather either 15 years (on the one sentence) or life (on the other sentence). But at least where, as here, the one sentence has been fully served, these alternative approaches to defining his legitimate expectation are ruled out by Bradley. There also it could have been said that the court had no authority to impose both the $500 fine and the six months' imprisonment; and there also it could have been said that the defendant's legitimate expectation was n t necessarily a $500 fine, but either a $500 fine or six months' imprisonment. But we in effect rejected those approaches, holding that once the fine had been paid a subsequent proceeding could not replace it with the alternative penalty. There is simply no basis for departing from that holding here.
The Double Jeopardy Clause is and has always been, not a provision designed to assure reason and justice in the particular case, but the embodiment of technical, prophylactic rules that require the Government to turn square corners. Whenever it is applied to release a criminal deserving of punishment it frustrates justice in the particular case, but for the greater purpose of assuring repose in the totality of criminal prosecutions and sentences. There are many ways in which these technical rules might be designed. We chose one approach in Bradley -undoubtedly not the only possible approach, but also not one that can be said to be clearly wrong. (The fact that it produces a "windfall" separates it not at all from other applications of the double jeopardy guarantee.) With technical rules, above all others, it is imperative that we adhere strictly to what we have stated the rules to be. A technical rule with equitable exceptions is no rule at all. Three strikes is out. The State broke the rules here, and must abide by the result.
For these reasons, I believe the Court of Appeals was correct to set aside respondent's life sentence. I would therefore affirm the judgment of the Court of Appeals, and respectfully dissent from the Court's disposition of this case. #fn-s