Barrett v. United States

JUSTICE GORSUCH, concurring in part.¶

On the morning of December 12, 2011, Dwayne Barrett participated in an armed robbery that left a man dead. For this, Mr. Barrett was convicted twice in federal court. Once for using a firearm during a crime of violence under 18 U. S. C. §924(c)(1)(A). And once for causing a death during a §924(c) violation in violation of §924(j). 102 F. 4th 60, 67 (CA2 2024). For his two convictions, the Second Circuit ordered two separate punishments: a prison term for his §924(c)(1)(A) violation, plus another, consecutive prison term for his §924(j) violation. All of which raises the question: If Mr. Barrett is convicted and punished for both crimes, has he been “twice put in jeopardy” for “the same offence” in violation of the Double Jeopardy Clause? U. S. Const., Amdt. 5.¶

There is no doubt how we would answer that question if the government had prosecuted Mr. Barrett under §924(c)(1)(A) and §924(j) in two successive proceedings. The analysis would begin and end with Blockburger v. United States , 284 U. S. 299 (1932). Under Blockburger , two provisions create the same offense for double jeopardy purposes unless each provision has an element the other lacks. Id ., at 304. Here, all agree that §924(c)(1)(A) has no element that §924(j) lacks. So the two provisions create the same offense, and the Double Jeopardy Clause would bar the second prosecution. United States v. Dixon , 509 U. S. 688, 696 (1993).¶

What happens, though, where (as here) the government brings two charges for the same offense concurrently in the same proceeding rather than successively in two separate ones? That question does not appear to have arisen much in our Nation’s early years. Maybe it didn’t in part because criminal codes were considerably thinner then, affording prosecutors fewer opportunities to bring overlapping charges. Maybe it didn’t in part, too, because of the traditional maxim that “an indictment should not include more than one felony,” which left multiple-count indictments vulnerable to being quashed by trial judges. Pointer v. United States , 151 U. S. 396, 403 (1894). But if the question didn’t arise much in the past, it is of obvious relevance in our times. These days, federal and state criminal codes have exploded, with scores of repetitive offenses on the books. Frequently, also, today’s prosecutors bring as many overlapping felony charges as they can in a single case to see what will stick, and courts often tolerate the practice.¶

The litigants before us proceed on the unexamined premise that Blockburger works differently in concurrent prosecutions than it does in successive ones. In concurrent prosecutions, they assume, Blockburger operates as a mere “presumption” for ascertaining congressional “inten[t].” E.g., Brief for Petitioner 2 (internal quotation marks omitted). Because §924(c)(1)(A) and §924(j) create the same offense under Blockburger , they say, we should presume that just one of Mr. Barrett’s convictions can stand unless Congress has clearly directed otherwise. The only question that divides the litigants is whether, in fact, Congress included clear directions in §924 authorizing both convictions. See Brief for Petitioner 18–26; Brief for United States 15–23; Brief for Court-Appointed Amicus Curiae 15–28.¶

Addressing the case as the litigants have framed it, the Court today holds that nothing in §924 overcomes the¶

“ Blockburger presumption,” so only one of Mr. Barrett’s convictions can stand. Ante, at 1–2, 9. I agree with that as far as it goes. But it’s also hard not to wonder where the litigants’ presumptive version of Blockburger comes from. If the Constitution always prohibits the government from securing two convictions for the same offense in successive prosecutions, why would it sometimes tolerate a different result in concurrent prosecutions?¶

One thing here is certain. The litigants framed this case the way they did because our cases speak confusingly about the role of the Double Jeopardy Clause in concurrent prosecutions. This Court has sometimes said that the Clause ''protects against multiple punishments for the same offense.'' Schiro v. Farley , 510 U. S. 222, 229 (1994) (quoting North Carolina v. Pearce , 395 U. S. 711, 717 (1969)). And we have held that multiple convictions for the same offense—even when secured in a single proceeding—count as multiple punishments. Ball v. United States , 470 U. S. 856, 865 (1985). From this, it would seem to follow that Congress cannot authorize multiple convictions for the same offense in concurrent prosecutions. But this Court has also sometimes said that, in the concurrent-prosecution context, the Clause merely directs courts to ascertain statutory meaning accurately. “ ‘The question of what punishments are constitutionally permissible,'' we once wrote, ''is no different from the question of what punishments the Legislative Branch intended to be imposed.’ ” Missouri v. Hunter , 459 U. S. 359, 368 (1983) (quoting Albernaz v. United States , 450 U. S. 333, 344 (1981); emphasis added; alteration omitted); see also Garrett v. United States , 471 U. S. 773, 778 (1985).¶

Someday, we will need to resolve the tension in our case law. And when we do, I see two likely solutions. One would be to say out loud what some of our cases imply: that the constitutional phrase “the same offence,” Amdt. 5, means different things in different contexts. In the successive-prosecution context, two charges amount to the same offense if they fail the Blockburger test. But in the concurrent-prosecution context, two charges amount to the same offense only if they fail the Blockburger test and Congress has not clearly intended punishment under both. That solution, though, would be a curious one indeed. Not only would it allow Congress to permit in the concurrent-prosecution context what we have long held the Constitution forbids in the successive-prosecution context. Really, it is a little “embarrassing to assert that the single term ‘same offence’ ” in the Double Jeopardy Clause “has two different meanings.” Dixon , 509 U. S., at 704.¶

A second solution would be to recognize, as others of our cases imply, that two charges amount to the same offense under the Double Jeopardy Clause if they fail the Blockburger test—full stop. So a defendant cannot be prosecuted for both charges in successive proceedings. Nor may he be convicted twice (much less sentenced twice) for both charges just because they happen to be brought concurrently. True, this approach would require us to admit that Blockburger is not, after all, a mere presumption in the concurrent-prosecution context. But saying that much would give the constitutional phrase “the same offence” a consistent meaning and treat like cases alike.¶

Nor would taking that step represent some giant leap. Our cases discussing Blockburger as a mere presumption in the concurrent-prosecution context were decided during a relatively brief period when this Court didn’t take Blockburger very seriously in any context, even when it came to successive prosecutions. See Grady v. Corbin , 495 U. S. 508, 510 (1990) (finding a double jeopardy violation based on a same-transaction test, divorced from Blockburger ). Since then, however, we have expressly renounced that approach, reaffirming that Blockburger ’s “long-settled rule” controls what counts as “an ‘offence’ for double jeopardy purposes” in successive prosecutions. Gamble v. United¶

States , 587 U. S. 678, 710 (2019); see also Dixon , 509 U. S., at 696, 704 (overruling Grady ). Tellingly, too, in all the years since Dixon , we have not found a single case in which the “ Blockburger presumption” against concurrent prosecutions for the same offense was, in fact, overcome by a clear congressional command. Cf. Rutledge v. United States , 517 U. S. 292, 303 (1996) (rejecting the government’s argument that “the presumption against allowing multiple punishments for the same crime” was “overcome”). In short, the analytical foundations of the presumptive version of Blockburger have been gravely undermined by subsequent developments.¶

Perhaps some might worry about the consequences of this second solution. Today, after all, prosecutors routinely bring concurrent charges for greater offenses and their lesser included variants, giving juries several degrees of culpability to choose from. One might wonder whether affording the Double Jeopardy Clause the same meaning in the concurrent-prosecution context that it already enjoys in the successive-prosecution context would render this practice illegal. It would not. A jury could reach a guilty verdict on two charges that constitute the same offense, but no double jeopardy problem would arise so long as the court does not enter judgments of conviction on both. It may not be clear at a trial’s outset which charge (if any) will yield a conviction. But it will be certain all along that, when judgment day comes, the defendant will be convicted and punished only once for any given offense. See Ball , 470 U. S., at 865.¶

Today, to be sure, the Court has no occasion to tangle with any of this. The parties have not asked us to address the tension in our case law. Nor does anything here turn on its resolution, given the Court’s holding that one of Mr. Barrett’s convictions must go even under the merely presumptive version of Blockburger . All this, the Court rightly takes care to acknowledge. See ante, at 8, n. 10 (“Because we conclude that Congress did not authorize two convictions in this context, we need not revisit whether Congress could do so consistent with the Double Jeopardy Clause”).¶

On that understanding, I join all but Part IV–C of JUSTICE JACKSON’s opinion. But while today’s decision is correct as far as it goes, sooner or later we will have to clear up the confusion—and to my eyes, this case serves as a poster child for how that confusion should be resolved. Mr. Barrett really was charged twice for one offense. He really was convicted twice. Before our intervention, he really was set to be criminally punished twice. And whatever Congress might or might not intend, that is double jeopardy.¶