In The

Supreme Court of the United States




Decided December 3, 1985

Justice O’Connor, For the Court


Heath v. Alabama, 474 U.S. 82 (1985), is a case in which the United States Supreme Court ruled that, because of the doctrine of "dual sovereignty" (the concept that the United States and each state possess sovereignty – a consequence of federalism), the double jeopardy clause of the Fifth Amendment to the Constitution does not prohibit one state from prosecuting and punishing somebody for an act of which they had already been convicted of and sentenced for in another state. This decision is one of several that holds that the Fifth Amendment does not forbid the U.S. federal government and a state government, or the governments of more than one state, from prosecuting the same individual separately for the same illegal act.

Topic: Criminal Procedure*Court vote: 7–2
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Joining O'Connor opinion: Justice BLACKMUN Justice BLACKMUN Chief Justice BURGER Chief Justice BURGER Justice POWELL Justice POWELL Justice REHNQUIST Justice REHNQUIST Justice STEVENS Justice STEVENS Justice WHITE Justice WHITE
Holding: The Fifth Amendment rule against double jeopardy does not prohibit two different states from separately prosecuting and convicting the same individual for the same illegal act.
Citation: 474 U.S. 82 Docket: 84–5555Audio: Listen to this case's oral arguments at Oyez

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JUSTICE O'CONNOR delivered the opinion of the Court.

The question before the Court is whether the Double Jeopardy Clause of the Fifth Amendment bars Alabama from trying petitioner for the capital offense of murder during a kidnaping after Georgia has convicted him of murder based on the same homicide. In particular, this case presents the issue of the applicability of the dual sovereignty doctrine to successive prosecutions by two States.


In August, 1981, petitioner, Larry Gene Heath, hired Charles Owens and Gregory Lumpkin to kill his wife, Rebecca Heath, who was then nine months pregnant, for a sum of $2,000. On the morning of August 31, 1981, petitioner left the Heath residence in Russell County, Alabama, to meet with Owens and Lumpkin in Georgia, just over the Alabama border from the Heath home. Petitioner led them back to the Heath residence, gave them the keys to the Heaths' car and house, and left the premises in his girlfriend's truck. Owens and Lumpkin then kidnaped Rebecca Heath from her home. The Heath car, with Rebecca Heath's body inside, was later found on the side of a road in Troup County, Georgia. The cause of death was a gunshot wound in the head. The estimated time of death and the distance from the Heath residence to the spot where Rebecca Heath's body was found are consistent with the theory that the murder took place in Georgia, and respondent does not contend otherwise.

Georgia and Alabama authorities pursued dual investigations in which they cooperated to some extent. On September 4, 1981, petitioner was arrested by Georgia authorities. Petitioner waived his Miranda rights and gave a full confession admitting that he had arranged his wife's kidnaping and murder. In November, 1981, the grand jury of Troup County, Georgia, indicted petitioner for the offense of "malice" murder under Ga.Code Ann. § 16-5-1 (1984). [ Footnote 1 ] Georgia then served petitioner with notice of its intention to seek the death penalty, citing as the aggravating circumstance the fact that the murder was "caused and directed" by petitioner. Record 742. See Ga.Code Ann. § 17-10-30(b)(6) (1982). On February 10, 1982, petitioner pleaded guilty to the Georgia murder charge in exchange for a sentence of life imprisonment, which he understood could involve his serving as few as seven years in prison. See Record 495.

On May 5, 1982, the grand jury of Russell County, Alabama, returned an indictment against petitioner for the capital offense of murder during a kidnaping. [ Footnote 2 ] See Ala.Code § 13A-5-40(a)(1) (1982). Before trial on this indictment, petitioner entered pleas of autrefois convict and former jeopardy under the Alabama and United States Constitutions, arguing that his conviction and sentence in Georgia barred his prosecution in Alabama for the same conduct. Petitioner also entered a plea contesting the jurisdiction of the Alabama court on the ground that the crime had occurred in Georgia.

After a hearing, the trial court rejected petitioner's double jeopardy claims. It assumed, arguendo, that the two prosecutions could not have been brought in succession by one State, but held that double jeopardy did not bar successive prosecutions by two different States for the same act. See Record 776. The court postponed a ruling on petitioner's plea to jurisdiction until the close of the State's case in chief. See id. at 778.

At the close of the State's case, petitioner argued that Alabama did not have jurisdiction under state law, because there had been no evidence of kidnaping and all the evidence showed that Rebecca Heath was killed in Georgia. The State responded that a kidnaping had been proved, and that, under Ala.Code § 15-2-3 (1982), if a crime commences in Alabama it may be punished in Alabama regardless of where the crime is consummated. The court rejected both petitioner's jurisdictional plea and his renewed double jeopardy claims. See Record 590.

On January 12, 1983, the Alabama jury convicted petitioner of murder during a kidnaping in the first degree. After a sentencing hearing, the jury recommended the death penalty. Pursuant to Alabama law, a second sentencing hearing was held before the trial judge. The judge accepted the jury's recommendation, finding that the sole aggravating factor, that the capital offense was "committed while the defendant was engaged in the commission of a kidnapping," outweighed the sole mitigating factor, that the

defendant was convicted of the murder of Rebecca Heath in the Superior Court of Troup County, Georgia,... and received a sentence of life imprisonment in that court.

Id. at 718-720. See Ala.Code §§ 13A-5-49(4), 13A-5-50 (1982).

On appeal, the Alabama Court of Criminal Appeals rejected petitioner's pleas of autrefois convict and former jeopardy under the Alabama and United States Constitutions and affirmed his conviction. 456 So.2d 898 (1988). Petitioner then filed a petition for writ of certiorari with the Alabama Supreme Court, stating the sole issue to be "whether or not the prosecution in the State of Alabama constituted double jeopardy in violation of the 5th Amendment of the United States Constitution." App. 92. The court granted his petition, and unanimously affirmed his conviction. Ex parte Heath, 455 So.2d 905 (1984).

The Alabama Supreme Court noted that "[p]rosecutions under the laws of separate sovereigns do not improperly subject an accused twice to prosecutions for the same offense," citing this Court's cases applying the dual sovereignty doctrine. Id. at 906. The court acknowledged that this Court has not considered the applicability of the dual sovereignty doctrine to successive prosecutions by different States. It reasoned, however, that

[i]f, for double jeopardy purposes, Alabama is considered to be a sovereign entity vis-a-vis the federal government, then surely it is a sovereign entity vis-a-vis the State of Georgia.


Petitioner sought a writ of certiorari from this Court, raising double jeopardy claims and claims based on Alabama's exercise of jurisdiction. No due process objections were asserted. We granted certiorari limited to the question whether petitioner's Alabama conviction was barred by this Court's decision in Brown v. Ohio, 432 U. S. 161 (1977), and requested the parties to address the question of the applicability of the dual sovereignty doctrine to successive prosecutions by two States. 470 U.S. 1026 (1985). For the reasons explained below, we affirm the judgment of the Alabama Supreme Court.

Despite the fact that this Court did not grant certiorari on the constitutional objection to Alabama's exercise of jurisdiction, petitioner has continued to argue in this Court his jurisdictional claim. See Tr. of Oral Arg. 11-22, 29-31; Brief for Petitioner 15. We decline to decide the issue, because petitioner did not claim lack of jurisdiction in his petition to the Alabama Supreme Court, and he raised the claim for the first time in his petition to this Court. Pet. for Cert. 4. Even if we were not jurisdictionally barred from considering claims not pressed or passed upon in the state court, as has sometimes been stated, see, e.g., State Farm Mutual Automobile Ins. Co. v. Duel, 324 U. S. 154, 324 U. S. 160 (1945); Crowell v. Randell, 10 Pet. 368, 35 U. S. 392 (1836), the longstanding rule that this Court will not consider such claims creates, at the least, a weighty presumption against review. See, e.g., Illinois v. Gates, 462 U. S. 213, 462 U. S. 218 -222 (1983).


Successive prosecutions are barred by the Fifth Amendment only if the two offenses for which the defendant is prosecuted are the "same" for double jeopardy purposes. Respondent does not contravene petitioner's contention that the offenses of "murder during a kidnaping" and "malice murder," as construed by the courts of Alabama and Georgia respectively, may be considered greater and lesser offenses and, thus, the "same" offense under Brown v. Ohio, supra, absent operation of the dual sovereignty principle. See id. at 432 U. S. 169 ; Illinois v. Vitale, 447 U. S. 410 (1980). We therefore assume, arguendo, that, had these offenses arisen under the laws of one State, and had petitioner been separately prosecuted for both offenses in that State, the second conviction would have been barred by the Double Jeopardy Clause.

The sole remaining question upon which we granted certiorari is whether the dual sovereignty doctrine permits successive prosecutions under the laws of different States which otherwise would be held to "subject [the defendant] for the same offence to be twice put in jeopardy." U.S.Const., Amdt. 5. Although we have not previously so held, we believe the answer to this query is inescapable. The dual sovereignty doctrine, as originally articulated and consistently applied by this Court, compels the conclusion that successive prosecutions by two States for the same conduct are not barred by the Double Jeopardy Clause.

The dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offences." United States v. Lanza, 260 U. S. 377, 260 U. S. 382 (1922). As the Court explained in Moore v. Illinois, 14 How. 13, 55 U. S. 19 (1852), "[a]n offence, in its legal signification, means the transgression of a law." Consequently, when the same act transgresses the laws of two sovereigns,

it cannot be truly averred that the offender has been twice punished for the same offence, but only that by one act he has committed two offences, for each of which he is justly punishable.

Id. at 55 U. S. 20.

In applying the dual sovereignty doctrine, then, the crucial determination is whether the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns. This determination turns on whether the two entities draw their authority to punish the offender from distinct sources of power. See, e.g., United States v. Wheeler, 435 U. S. 313, 435 U. S. 320 (1978); Waller v. Florida, 397 U. S. 387, 397 U. S. 393 (1970); Puerto Rico v. Shell Co.,302 U. S. 253,302 U. S. 264-265 (1937);Lanza, supra,at260 U. S. 382;Grafton v. United States,206 U. S. 333,206 U. S. 354-355 (1907). Thus, the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute is derived from its own "inherent sovereignty," not from the Federal Government.Wheeler, supra,at435 U. S. 320, n. 14.See Abbate v. United States,359 U. S. 187,359 U. S. 193-194 (1959) (collecting cases);Lanza, supra.As stated inLanza, supra,at260 U. S. 382:

Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other. It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both, and may be punished by each.

See also Bartkus v. Illinois, 359 U. S. 121 (1959); Westfall v. United States, 274 U. S. 256, 274 U. S. 258 (1927) (Holmes, J.) (the proposition that the State and Federal Governments may punish the same conduct "is too plain to need more than statement").

The States are no less sovereign with respect to each other than they are with respect to the Federal Government. Their powers to undertake criminal prosecutions derive from separate and independent sources of power and authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment. See Lanza, supra, at 260 U. S. 382. The States are equal to each other

in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself.

Coyle v. Oklahoma, 221 U. S. 559, 221 U. S. 567 (1911). See Skiriotes v. Florida, 313 U. S. 69, 313 U. S. 77 (1941). Thus,

[e]ach has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each 'is exercising its own sovereignty, not that of the other.'

Wheeler, supra, at 435 U. S. 320 (quoting Lanza, supra, at 260 U. S. 382 ).

The cases in which the Court has applied the dual sovereignty principle outside the realm of successive federal and state prosecutions illustrate the soundness of this analysis. United States v. Wheeler, supra, is particularly instructive, because there the Court expressly refused to find that only the State and Federal Governments could be considered distinct sovereigns with respect to each other for double jeopardy purposes, stating that "so restrictive a view of [the dual sovereignty] concept... would require disregard of the very words of the Double Jeopardy Clause." Id. at 435 U. S. 330. Instead, the Wheeler Court reiterated the principle that the sovereignty of two prosecuting entities for these purposes is determined by "the ultimate source of the power under which the respective prosecutions were undertaken." Id. at 435 U. S. 320. On the basis of this reasoning, the Court held that the Navajo Tribe, whose power to prosecute its members for tribal offenses is derived from the Tribe's "primeval sovereignty," rather than a delegation of federal authority, is an independent sovereign from the Federal Government for purposes of the dual sovereignty doctrine. Id. at 435 U. S. 328.

In those instances where the Court has found the dual sovereignty doctrine inapplicable, it has done so because the two prosecuting entities did not derive their powers to prosecute from independent sources of authority. Thus, the Court has held that successive prosecutions by federal and territorial courts are barred because such courts are "creations emanating from the same sovereignty." Puerto Rico, 302 U.S. at 302 U. S. 264. See id. at 302 U. S. 264 -266. See also Grafton, supra (the Philippine Islands). Similarly, municipalities that derive their power to try a defendant from the same organic law that empowers the State to prosecute are not separate sovereigns with respect to the State. See, e.g., Waller, supra. These cases confirm that it is the presence of independent sovereign authority to prosecute, not the relation between States and the Federal Government in our federalist system, that constitutes the basis for the dual sovereignty doctrine.

Petitioner argues that Nielsen v. Oregon, 212 U. S. 315 (1909), indicates, albeit in dicta, that where States have concurrent jurisdiction over a criminal offense, the first State to prosecute thereby bars prosecution by any other State. We find that Nielsen is limited to its unusual facts and has continuing relevance, if at all, only to questions of jurisdiction between two entities deriving their concurrent jurisdiction from a single source of authority. In Nielsen, the Court set aside a conviction obtained by the State of Oregon against a resident of the State of Washington for his operation of a purse net for fish in the Columbia River pursuant to a valid license to do so from the State of Washington. The Court noted:

By the legislation of Congress, the Columbia River is made the common boundary between Oregon and Washington, and to each of those States is given concurrent jurisdiction on the waters of that river.

Id. at 212 U. S. 319.

[T]he grant of concurrent jurisdiction may bring up from time to time... some curious and difficult questions, so we properly confine ourselves to the precise question presented.... It is enough to decide, as we do, that for an act done within the territorial limits of the State of Washington under authority and license from that State, one cannot be prosecuted and punished by the State of Oregon.

Id. at 212 U. S. 320 -321. It is obvious that the Nielsen Court did not attempt to decide, or even to consider, the double jeopardy effect of successive state prosecutions for offenses proscribed by both States; the case, therefore, has no bearing on the issue of the applicability of the dual sovereignty doctrine presented in this case.


Petitioner invites us to restrict the applicability of the dual sovereignty principle to cases in which two governmental entities, having concurrent jurisdiction and pursuing quite different interests, can demonstrate that allowing only one entity to exercise jurisdiction over the defendant will interfere with the unvindicated interests of the second entity, and that multiple prosecutions therefore are necessary for the satisfaction of the legitimate interests of both entities. This balancing of interests approach, however, cannot be reconciled with the dual sovereignty principle. This Court has plainly and repeatedly stated that two identical offenses are not the "same offence" within the meaning of the Double Jeopardy Clause if they are prosecuted by different sovereigns. See, e.g., United Skates v. Lanza, 260 U. S. 377 (1922) (same conduct, indistinguishable statutes, same "interests"). If the States are separate sovereigns, as they must be under the definition of sovereignty which the Court consistently has employed, the circumstances of the case are irrelevant.

Petitioner, then, is asking the Court to discard its sovereignty analysis and to substitute in its stead his difficult and uncertain balancing of interests approach. The Court has refused a similar request on at least one previous occasion, see Abbate v. United States, 359 U. S. 187 (1959); id. at 359 U. S. 196 (BRENNAN, J., separate opinion), and rightfully so. The Court's express rationale for the dual sovereignty doctrine is not simply a fiction that can be disregarded in difficult cases. It finds weighty support in the historical understanding and political realities of the States' role in the federal system and in the words of the Double Jeopardy Clause itself, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S.Const., Amdt. 6 (emphasis added). See Wheeler, 435 U.S. at 435 U. S. 330.

It is axiomatic that,

[i]n America, the powers of sovereignty are divided between the government of the Union and those of the States. They are each sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other. McCulloch v. Maryland, 4 Wheat. 316, 17 U. S. 410 (1819). It is as well established that the States, 'as political communities, [are] distinct and sovereign, and consequently foreign to each other.' Bank of United States v. Daniel, 12 Pet. 32, 37 U. S. 54 (1838). See also Skiriotes v. Florida, 313 U.S. at 313 U. S. 77 ; Coyle v. Oklahoma, 221 U.S. at 221 U. S. 567. The Constitution leaves in the possession of each State 'certain exclusive and very important portions of sovereign power.' The Federalist No. 9, p. 55 (J. Cooke ed.1961). Foremost among the prerogatives of sovereignty is the power to create and enforce a criminal code. See, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 458 U. S. 601 (1982); McCulloch, supra, at 17 U. S. 418. To deny a State its power to enforce its criminal laws because another State has won the race to the courthouse would be a shocking and untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines.

Bartkus, 359 U.S. at 359 U. S. 137.

Such a deprivation of a State's sovereign powers cannot be justified by the assertion that, under "interest analysis," the State's legitimate penal interests will be satisfied through a prosecution conducted by another State. A State's interest in vindicating its sovereign authority through enforcement of its laws, by definition, can never be satisfied by another State's enforcement of its own laws. Just as the Federal Government has the right to decide that a state prosecution has not vindicated a violation of the "peace and dignity" of the Federal Government, a State must be entitled to decide that a prosecution by another State has not satisfied its legitimate sovereign interest. In recognition of this fact, the Court consistently has endorsed the principle that a single act constitutes an "offence" against each sovereign whose laws are violated by that act. The Court has always understood the words of the Double Jeopardy Clause to reflect this fundamental principle, and we see no reason why we should reconsider that understanding today.

The judgment of the Supreme Court of Alabama is affirmed.

It is so ordered.


[ Footnote 1 ]

The indictment read as follows:

[The grand jurors] in the name and on behalf of the citizens of Georgia, charge and accuse LARRY GENE HEATH [ et al. ] with the offense of MURDER (26-1101); for that the said LARRY GENE HEATH [ et al. ] on the date of August 31, 1981, in the county aforesaid, did then and there unlawfully and with malice aforethought cause the death of Rebecca McGuire Heath, a human being, by shooting her with a gun, a deadly weapon.

Record 740.

[ Footnote 2 ]

The indictment stated:

Larry Gene Heath did intentionally cause the death of Rebecca Heath, by shooting her with a gun, and Larry Gene Heath caused said death during Larry Gene Heath's abduction of, or attempt to abduct, Rebecca Heath with intent to inflict physical injury upon her, in violation of § 13A-5-40(a)(1) of the Code of Alabama 1975, as amended, against the peace and dignity of the State of Alabama.

Id. at 728.

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