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K E L L E R , P
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i l e d a c o n c u r r i n g o p i n i o n . The ra mification of the position taken by the State and by

the dissenting opinion would be

that the leg islature could abrog ate the double-jeopa rdy protec tion ag ainst succe ssive prosec utions.

I f t aken to its logic al conc lusion, their view would per mit the legislature to cre ate a dozen murder

offe nses with identical elements and allow a person to be succe ssively prosec uted for eac h one. Or

the leg islature could authorize succe ssive prosec utions for any lesser- included offe nse of an ear lier

char g ed offe nse. Even an acquittal in an ear lier prosec ution could be rende red meaning less, beca use
the leg islature could define offe nses as not the same in a way that would eff ectively abolish any rules

of cla im or issue prec lusion.

This view simply cannot be rig ht. The Double J eopar dy Clause has been construed to rea chCHADDOCK CONCURR ENCE — 2

many situations, but at t he core of its protec tions is t he prote ction ag ainst succe ssive prosec utions

for the same offe nse. The g overnme nt cannot be allowed t o re -f i l e its char g es ag ain and ag ain simply beca

use the ear lier prosec ution did not achie ve the results the g overnme nt desired. I do not
believe that the protec tion ag ainst succe ssive prosec utions can be abolished throug h leg islative fiat. 1

Wit h these c omments, I join the opinion that announces the judg ment of the Court.
Filed: June 27, 2012 Publis h

And neither, I think, does J ustice Scalia, who authore d the portion of Dixon , 509 U.S. 688

1 (1993), upon which the State and the dissenting opinion rely

. J ustice Scalia’s view is that the Double J eopar dy Clause does not contain a “multiple punishments” component, and that multip l epunishment issues should instead b e co n s i d ere d under the Due Process Clause. See Dep’ t of R ev en u e v. Kurth Ranch , 511 U.S. 767, 802-03 (1994) (Scalia, J ., dissenting) (“The difficulty o f ap p l y i n g Halper ’s analy sis to Montana’s Dang erous Drug Tax has prompted me to focus on t h e antec edent question whether t h er e is a multipl e-punishments component of the Double J eopar dy Clause. As indicated above, I have conclude d

. . . that there is not. I nstead, the Due Process Clause keeps punishment within the bounds established by the leg islature

. . .[ Halper ] produce s results too strang e for judge s to endure , and reg ularly demands judgme nts of the most p ro blematic sort.”). Under that view, Missouri v. Hunter , 459 U.S. 359 (1983), would be removed from the doublejeopar dy discussion beca use i t was a

multipl e-punishments ca se. And onc e it is out of the picture, along with its holding that leg islatures may authorize multipl e punishments for offe nses that are the
same under Blockburge r , all that is left is Blockburge r as the sole criter ion for asce rtaining a doublejeopar dy violation. See Kurth Ranc h , 511 U.S. a t 800 (Scalia, J ., dissenting) . We should not rea d too much into the cited statement in Dixon

.