author: Justice Rehnquist Justice Stevens, Justice Marshall,

text:
    UNITED STATES v. GOUVEIA et al.
    No. 83-128.
    Argued March 20, 1984
    Decided May 29, 1984

      Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Trott, Carolyn F. Corwin, and John F. De Pue.

      Charles P. Diamond, by appointment of the Court, 464 U. S. 1035, argued the cause for respondents Mills et al. With him on the brief were M. Randall Oppenheimer and Edwin S. Saul. Joel Levine, by appointment of the Court, 464 U. S. 1035, argued the cause for respondents Gouveia et al. and filed a brief for respondent Segura. Joseph F. Walsh, by appointment of the Court, 464 U. S. 1035, filed a brief for respondent Ramirez. Michael J. Treman, by appointment of the Court, 464 U. S. 1035, filed a brief for respondent Gouveia. Manuel U. A. Araujo filed a brief for respondent Reynoso.

      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union Foundation by Richard F. Ziegler and Charles S. Sims; and for the National Legal Aid and Defender Association by Richard J. Wilson.

   Justice Rehnquist

delivered the opinion of the Court.

Respondents William Gouveia, Robert Ramirez, Adolpho Reynoso, and Philip Segura were convicted of murdering a fellow inmate at a federal prison in Lompoc, Cal. Respondents Robert Mills and Richard Pierce were convicted of a later murder of another inmate at the same institution. Prison officials placed each respondent in administrative detention shortly after the murders, and they remained there for an extended period of time before they were eventually indicted on criminal charges. On appeal of respondents’ convictions, the en banc Court of Appeals for the Ninth Circuit held by divided vote that they had a Sixth Amendment right to an attorney during the period in which they were held in administrative detention before the return of indictments against them, and that because they had been denied that right, their convictions had to be overturned and their indictments dismissed. 704 F. 2d 1116 (1983). We granted cer-tiorari to review the Court of Appeals’ novel application of our Sixth Amendment precedents, 464 U. S. 913 (1983), and we now reverse.

On November 11, 1978, Thomas Trejo, an inmate at the Federal Correctional Institution in Lompoc, Cal., was found dead from 45 stab wounds in the chest. Prison officials and agents from the Federal Bureau of Investigation began independent investigations of the murder. Prison officials immediately suspected respondents Reynoso and Gouveia and placed them in the Administrative Detention Unit (ADU) at Lompoc. They were released back into the general prison population on November 22, 1978, but after officials obtained further information about the murder, on December 4, 1978, they returned Reynoso and Gouveia to the ADU, and placed respondents Segura and Ramirez in the ADU as well. Later in December, prison officials held disciplinary hearings, determined that all four respondents had participated in the murder of inmate Trejo, and ordered their continued confinement in the ADU. While in the ADU, respondents were separated from the general prison population and confined to individual cells. Although their participation in various prison programs was curtailed, they were still allowed regular visitation rights, exercise periods, access to legal materials, and unmonitored phone calls. 704 F. 2d, at 1118; see generally 28 CFR §§541.19, 541.20(d) (1983). Respondents remained in the ADU without appointed counsel for approximately 19 months. On June 17, 1980, a federal grand jury returned an indictment against respondents on charges of first-degree murder and conspiracy to commit murder in violation of 18 U. S. C. §§1111 and 1117 respectively. On July 14, 1980, respondents were arraigned in federal court, at which time a Federal Magistrate appointed counsel for them.

Before trial respondents filed a motion to dismiss their indictments, arguing that the delay of approximately 19 months between the commission of the crime and the return of the indictments violated their due process rights under the Fifth Amendment or, alternatively, their Sixth Amendment right to a speedy trial, and that their confinement in the ADU without appointment of counsel during that period violated their Sixth Amendment right to counsel. The District Court for the Central District of California denied their motion, and respondents proceeded to trial. Their first trial, which lasted approximately four weeks, ended in a mistrial. On retrial, respondents were convicted on both counts and were sentenced to consecutive life and 99-year terms of imprisonment.

The scenario is much the same in the case of Mills and Pierce. Inmate Thomas Hall was stabbed to death at Lom-poc on August 22, 1979. Immediately afterwards Mills and Pierce were examined by a prison doctor and questioned by FBI agents regarding the murder. Prison officials suspected them of involvement in the murder and placed them in the ADU pending further investigation. On September 13, 1979, prison officials conducted a disciplinary hearing, concluded that respondents had murdered inmate Hall, and ordered their continued confinement in the ADU where they remained for the next eight months. On March 27, 1980, a federal grand jury returned an indictment against Mills and Pierce on charges of first-degree murder in violation of 18 U. S. C. §1111 and of conveyance of a weapon in prison in violation of 18 U. S. C. § 1792, and against Pierce on a charge of assault in violation of 18 U. S. C. § 113(c). At the time of their arraignment on April 21, 1980, Mills and Pierce were appointed counsel and were released from the ADU.

Before trial Mills and Pierce also filed a motion to dismiss their indictments, alleging that the 8-month preindictment delay violated their Fifth Amendment due process rights and their Sixth Amendment speedy trial right, and that their confinement without counsel for that period violated their Sixth Amendment right to counsel. The District Court for the Central District of California granted the motion to dismiss. A panel of the Court of Appeals for the Ninth Circuit reversed and remanded for trial, holding that respondents’ Sixth Amendment rights were not triggered during their administrative segregation because they had not yet been arrested and accused, and that respondents had made an insufficient showing of actual prejudice from the preindictment delay so as to justify dismissal of the indictments on due process grounds. United States v. Mills, 641 F. 2d 785, cert. denied, 454 U. S. 902 (1981). Respondents Mills and Pierce were then convicted on all counts and sentenced to life imprisonment.

The Court of Appeals, proceeding en banc, consolidated the appeals of all six respondents and addressed only the issue of whether the Sixth Amendment requires the appointment of counsel before indictment for indigent inmates confined in administrative detention while being investigated for criminal activities. 704 F. 2d, at 1119. The Court of Appeals majority recognized that a plurality of this Court had concluded in Kirby v. Illinois, 406 U. S. 682 (1972), that the Sixth Amendment right to counsel attaches only when formal judicial proceedings are initiated against an individual by way of indictment, information, arraignment, or preliminary hearing. The majority recognized that no such proceedings had been initiated against respondents during the period of time for which they asserted a right to appointed counsel in this case.

The majority went on to note, however, that Kirby is not a prison case and that the point at which the Sixth Amendment right to counsel is triggered is different in the prosecution of prison crimes. 704 F. 2d, at 1120. In so holding the majority analogized to Sixth Amendment speedy trial cases, where this Court has held that the Sixth Amendment speedy trial right is triggered when an individual is arrested and held to answer criminal charges. See United States v. Marion, 404 U. S. 307, 320 (1971). The en banc majority reasoned that just as such an arrest constitutes an “accusation” for Sixth Amendment speedy trial purposes, the administrative detention of an inmate for more than 90 days because of a pending felony investigation constitutes an “accusation” for Sixth Amendment right to counsel purposes. Thus, according to the Court of Appeals’ holding, an indigent inmate isolated in administrative detention while the subject of a felony investigation must be afforded counsel after 90 days, or else be released back into the prison population, in order to ensure that he or his lawyer will be able to take preindictment investigatory steps to preserve his defense at trial. 704 F. 2d, at 1124.

Applying its test to the facts of this case, the Court of Appeals majority held that each respondent had been denied his Sixth Amendment right to counsel. It concluded that the record showed that each respondent had been held in administrative detention longer than 90 days, that each had been held at least in part because of a pending felony investigation, and that each had requested and had been denied counsel during his confinement in the ADU. The majority went on to conclude that the appropriate remedy for redressing the Sixth Amendment violations in this case was reversal of respondents’ convictions and dismissal of the indictments against them.

Five judges dissented from the en banc majority’s Sixth Amendment holding. Relying on Kirby v. Illinois, supra, the dissent concluded that the Sixth Amendment right to counsel is triggered by the initiation of formal criminal proceedings even in the prison context, and that the majority’s conclusion to the contrary shows a misunderstanding of the purpose of the counsel guarantee. 704 F. 2d, at 1127-1129. We agree with the dissenting judges’ application of our precedents to this situation, and, accordingly, we reverse the en banc majority’s holding that respondents had a Sixth Amendment right to the appointment of counsel during their preindictment segregation.

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” As the Court of Appeals majority noted, our cases have long recognized that the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant. In Kirby v. Illinois, supra, a plurality of the Court summarized our prior cases as follows:

“In a line of constitutional cases in this Court stemming back to the Court’s landmark opinion in Powell v. Alabama, 287 U. S. 45, it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U. S. 458; Hamilton v. Alabama, 368 U. S. 52; Gideon v. Wainwright, 372 U. S. 335; White v. Maryland, 373 U. S. 59; Massiah v. United States, 377 U. S. 201; United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263; Coleman v. Alabama, 399 U. S. 1.
. . [Wjhile members of the Court have differed as to the existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Id., at 688-689 (emphasis in original).

The view that the right to counsel does not attach until the initiation of adversary judicial proceedings has been confirmed by this Court in cases subsequent to Kirby. See Estelle v. Smith, 451 U. S. 454, 469-470 (1981); Moore v. Illinois, 434 U. S. 220, 226-227 (1977); Brewer v. Williams, 430 U. S. 387, 398-399 (1977); United States v. Mandujano, 425 U. S. 564, 581 (1976) (opinion of Burger, C. J.).

That interpretation of the Sixth Amendment right to counsel is consistent not only with the literal language of the Amendment, which requires the existence of both a “criminal prosecutio[n]” and an “accused,” but also with the purposes which we have recognized that the right to counsel serves. We have recognized that the “core purpose” of the counsel guarantee is to assure aid at trial, “when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor.” United States v. Ash, 413 U. S. 300, 309 (1973). Indeed the right to counsel

“embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.” Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938).

Although we have extended an accused’s right to counsel to certain “critical” pretrial proceedings, United States v. Wade, 388 U. S. 218 (1967), we have done so recognizing that at those proceedings, “the accused [is] confronted, just as at trial, by the procedural system, or by his expert adversary, or by both,” United States v. Ash, supra, at 310, in a situation where the results of the confrontation “might well settle the accused’s fate and reduce the trial itself to a mere formality.” United States v. Wade, supra, at 224.

Thus, given the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings “is far from a mere formalism.” Kirby v. Illinois, 406 U. S., at 689. It is only at that time “that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” Ibid.

The Court of Appeals departed from our consistent interpretation of the Sixth Amendment in these cases, and in so doing, fundamentally misconceived the nature of the right to counsel guarantee. We agree with the dissent that the majority’s analogy to Sixth Amendment speedy trial cases is inapt. Our speedy trial cases hold that that Sixth Amendment right may attach before an indictment and as early as the time of “arrest and holding to answer a criminal charge,” United States v. MacDonald, 456 U. S. 1, 6-7 (1982); United States v. Lovasco, 431 U. S. 783, 788-789 (1977); Dillingham v. United States, 423 U. S. 64 (1975) (per curiam); United States v. Marion, 404 U. S., at 320, but we have never held that the right to counsel attaches at the time of arrest. This difference is readily explainable, given the fact that the speedy trial right and the right to counsel protect different interests. While the right to counsel exists to protect the accused during trial-type confrontations with the prosecutor, the speedy trial right exists primarily to protect an individual’s liberty interest, “to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.” United States v. MacDonald, supra, at 8. See Barker v. Wingo, 407 U. S. 514, 532-533 (1972); United States v. Marion, supra, at 320. Thus, the majority’s attempt to draw an analogy between an arrest and an inmate’s administrative detention pending investigation may have some relevance in analyzing when the speedy trial right attaches in this context, but it is not relevant to a proper determination of when the right to counsel attaches.

The Court of Appeals’ holding also confuses the purpose of the right to counsel with purposes that are served by the Fifth Amendment due process guarantee and the statutes of limitations applicable to the particular crime being investigated. The majority concludes that the extension of the right to counsel to this prison context is necessary to protect against the possibility that the Government may delay the initiation of formal charges, thus delaying the appointment of counsel, while it develops its case against the isolated and unaided inmate. 704 F. 2d, at 1122. By the time the Government decides to bring charges, the majority felt, witnesses’ memories could have dimmed, alibi witnesses could have been transferred to other facilities, and physical evidence could have deteriorated. Id., at 1126.

Those concerns, while certainly legitimate ones, are simply not concerns implicating the right to counsel, and we reaffirm that the mere “possibility of prejudice [to a defendant resulting from the passage of time] ... is not itself sufficient reason to wrench the Sixth Amendment from its proper context.” United States v. Marion, supra, at 321-322. In holding that the appointment of counsel or the release of the inmate from segregation could remedy its concerns, the Court of Appeals must have concluded, quite illogically we believe, that the presence of the inmate in the general prison population or the appointment of a lawyer could somehow prevent the deterioration of physical evidence, or that the inmate or his counsel could begin an effective investigation of the crime within the restricted prison walls before even being able to discover the nature of the Government’s case. Of course, both inside and outside the prison, it may well be true that in some cases preindictment investigation could help a defendant prepare a better defense. But, as we have noted, our cases have never suggested that the purpose of the right to counsel is to provide a defendant with a preindictment private investigator, and we see no reason to adopt that novel interpretation of the right to counsel in this case.

Thus, at bottom, the majority’s concern is that because an inmáte suspected of a crime is already in prison, the prosecution may have little incentive promptly to bring formal charges against him, and that the resulting preindictment delay may be particularly prejudicial to the inmate, given the problems inherent in investigating prison crimes, such as the transient nature of the prison population and the general reluctance of inmates to cooperate. But applicable statutes of limitations protect against the prosecution’s bringing stale criminal charges against any defendant, United States v. Lovasco, supra, at 788-789; United States v. Marion, supra, at 322, and, beyond that protection, the Fifth Amendment requires the dismissal of an indictment, even if it is brought within the statute of limitations, if the defendant can prove that the Government’s delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice in presenting his defense. United States v. Lovasco, supra, at 789-790; United States v. Marion, supra, at 324. Those protections apply to criminal defendants within and without the prison walls, and we decline to depart from our traditional interpretation of the Sixth Amendment right to counsel in order to provide additional protections for respondents here.

We conclude that the Court of Appeals was wrong in holding that respondents were constitutionally entitled to the appointment of counsel while they were in administrative segregation and before any adversary judicial proceedings had been initiated against them. Accordingly, we reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.

It is so ordered.

Justice Stevens,

with whom Justice Brennan joins,

concurring in the judgment.

“Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him — ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’” Brewer v. Williams, 430 U. S. 387, 398 (1977) (emphasis supplied) (quoting Kirby v. Illinois, 406 U. S. 682, 689 (1972) (plurality opinion)). That statement, which does not foreclose the possibility that the right to counsel might under some circumstances attach prior to the formal initiation of judicial proceedings, has been the rule this Court has consistently followed. Today the Court seems to adopt a broader rule, stating that “the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant.” Ante, at 187 (emphasis supplied). Because I believe this statement is unjustified by our prior cases and unnecessary to decide this case, I cannot join the opinion of the Court.

In Escobedo v. Illinois, 378 U. S. 478 (1964), this Court squarely held that the Sixth Amendment’s right to counsel can attach before formal charges have been filed. Escobedo had been denied access to his lawyer while he was in custody but before any formal charges had been filed. The Court explained:

“The interrogation here was conducted before petitioner was formally indicted. But in the context of this case, that fact should make no difference. When petitioner requested, and was denied, an opportunity to consult with his lawyer, the investigation had ceased to be a general investigation of ‘an unsolved crime.’ Petitioner had become the accused, and the purpose of the interrogation was to ‘get him’ to confess his guilt despite his constitutional right not to do so.” Id., at 485 (citation omitted) (quoting Spano v. New York, 360 U. S. 315, 327 (1959) (Stewart, J., concurring)).

The Court added: “It would exalt form over substance to make the right to counsel, under the circumstances, depend on whether at the time of the interrogation, the authorities had secured a formal indictment. Petitioner had, for all practical purposes, already been charged with murder.” 378 U. S., at 486.

The Court’s dictum concerning the right to counsel is likewise inconsistent with Miranda v. Arizona, 384 U. S. 436 (1966). There, the Court held that during custodial interrogation the suspect has a right to have counsel present, and that if he cannot afford counsel he is entitled to have counsel appointed to represent him free of charge. See id., at 469-473. The Court recognized that custodial interrogation was the true beginning of adversarial proceedings: “It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries.” Id., at 477. See also Coleman v. Alabama, 399 U. S. 1, 20 (1970) (Harlan, J., concurring in part and dissenting in part); Dickey v. Florida, 398 U. S. 30, 44 (1970) (Brennan, J., concurring); United States v. Oliver, 505 P. 2d 301, 305, n. 12 (CA7 1974).

United States v. Wade, 388 U. S. 218 (1967), illustrates how Sixth Amendment jurisprudence has turned not on the formal initiation of judicial proceedings but rather on the nature of the confrontation between the authorities and the citizen. The Court began its Sixth Amendment analysis concerning the right to counsel at lineup identifications by noting that “in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” Id., at 226. The Court then reviewed its prior cases and concluded:

“[W]e scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” Id., at 227 (emphasis in original).

The Court has adhered to this formulation in subsequent cases. See United States v. Henry, 447 U. S. 264, 269 (1980); Gerstein v. Pugh, 420 U. S. 103, 122-123 (1975); Schneckloth v. Bustamonte, 412 U. S. 218, 238-240 (1973); Coleman v. Alabama, 399 U. S., at 9 (plurality opinion). Perhaps most telling is United States v. Ash, 413 U. S. 300 (1973), dealing with the right to counsel at a pretrial photographic identification of the accused as the perpetrator by a Government witness. While Justice Stewart argued that “this constitutional ‘right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated,”’ id., at 322 (opinion concurring in judgment) (quoting Kirby v. Illinois, 406 U. S., at 688 (plurality opinion)), that was not the path the Court took. It acknowledged that “extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered part of the trial itself,” 413 U. S., at 310. It concluded that “the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary.” Id., at 313.

If the authorities take a person into custody in order to interrogate him or to otherwise facilitate the process of making a case against him, then under the rationale of Escobedo, Miranda, and our other cases, the person is sufficiently “accused” to be entitled to the protections of the Sixth Amendment. In these circumstances, subjecting the uncounseled suspect to questioning or other prosecutorial techniques may present “the high probability of substantial harm identified as controlling in Wade,” Gerstein, 420 U. S., at 123. Thus, when a person is deprived of liberty in order to aid the prosecution in its attempt to convict him, and when the deprivation is likely to have the intended effect, that person is, in my judgment, “an accused.”

I join the Court’s judgment because I agree that respondents’ detention in the Administrative Detention Unit (ADU) did not serve an accusatorial function. Under relevant regulations, respondents could be kept in the ADU simply because of the security risk they posed. After hearings, prison administrators had concluded that respondents likely had murdered fellow inmates. Under such circumstances there can be no doubt that concern for the welfare of other inmates or respondents themselves fully justified administrative detention entirely apart from its relation to an ongoing criminal investigation. See Hewitt v. Helms, 459 U. S. 460, 473-476 (1983). Indeed, there is no finding in either of these consolidated cases that respondents were placed in the ADU at the behest of prosecutorial authorities or in order to aid prosecutorial efforts, nor is there a finding that their detention facilitated the investigation of the two murders at issue. On this record there is no reason to believe that the segregation of suspected murderers from the general prison population either was intended to or had the effect of facilitating a criminal investigation rather than simply serving legitimate institutional policies.

Accordingly, while I find no Sixth Amendment violation in this case, to the extent that the Court purports to formulate a rule broader than necessary to decide the case before it, I cannot join its opinion.

Justice Marshall,

dissenting.

The majority misreads the development of Sixth Amendment doctrine when it states that “our cases have long recognized that the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant.” Ante, at 187. As Justice Stevens demonstrates, ante, at 198-197, we have recognized that in certain situations an individual’s right to counsel is triggered before the formal initiation of adversary judicial proceedings. See, e. g., Escobedo v. Illinois, 378 U. S. 478, 485-492 (1964). This recognition has stemmed from an appreciation that the government can transform an individual into an “accused” without officially designating him as such through the ritual of arraignment. Moreover, I agree with Justice Stevens that the government treats an individual as an accused when that individual “is deprived of liberty in order to aid the prosecution in its attempt to convict him, and when the deprivation is likely to have the intended effect. . . .” Ante, at 197.

Unlike Justice Stevens, however, I reject the judgment as well as the reasoning of the Court. Justice Stevens concurs in the judgment of the Court because, in his view, the transfer of respondents from the general prison population to the far harsher constraints of administrative detention did not in any way serve “an accusatorial function” but served instead to further the security interests of the correctional institution and the welfare of respondents themselves. Ibid. My reading of the record and of the factfinding of the courts below leads me to a different conclusion. With respect to respondents Mills and Pierce, the District Court stated, in the portion of its opinion entitled “Factual Background,” that by the time they were committed to administrative detention, “the finger of suspicion” had already been pointed at them. App. to Pet. for Cert. 45a-46a. This finding is corroborated by prison officials’ own notation that respondents were to be detained in administrative detention “pending investigation or trial for a criminal act,” App. 138-139, and by the odd course of events that transpired after respondents’ detention: the Government’s delay in seeking indictments alongside the unusually long period during which respondents were confined to their cells. See App. to Pet. for Cert. 42a-47a. The District Court was therefore justified in concluding that respondents’ “commitment to [administrative detention] was neither a form of prison discipline nor an attempt to ensure prison security,” but was instead “part and parcel of a sequence of prosecutive acts integrally related to the application of criminal sanctions.” Id., at 47a-48a. The District Court’s findings and conclusion were noted and affirmed by the Court of Appeals. 704 F. 2d 1116, 1125 (1983). This Court has repeatedly stated that it “‘cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error.’” See Berenyi v. District Director, INS, 385 U. S. 630, 635 (1967), quoting Graver Mfg. Co. v. Linde Co., 336 U. S. 271, 275 (1949). In this case no such showing of error has been made.

We do not have the benefit of a trial judge’s explicit factual findings with respect to respondents Reynoso, Segura, Ramirez, and Gouveia. However, we do have the Government’s admission that one reason all of the respondents were kept in administrative detention was “because of the pend-ency of the criminal investigation . . . .” Brief for United States 26. This admission further supports the Court of Appeals’ conclusion that “each [respondent] was held in [administrative detention] at least in part as a result of pending criminal charges.” 704 F. 2d, at 1125.

Because of their disposition of the Sixth Amendment issue, neither the majority nor Justice Stevens reaches the other issue posed by this case: whether the Court of Appeals erred by dismissing the indictments against respondents. The Government claims that dismissing the indictments was inconsistent with this Court’s decision in United States v. Morrison, 449 U. S. 361 (1981). In Morrison, we reversed the dismissal of an indictment in a case in which it was assumed, arguendo, that a Sixth Amendment violation had occurred and in which the defendant “demonstrated no prejudice of any kind ... to the ability of her counsel to provide adequate representation . . . .” Id., at 366. We stated that, in right-to-counsel cases, dismissal of an indictment is inappropriate “absent demonstrable prejudice, or substantial threat thereof,” id., at 365, because a presumption of prejudice would contravene “the general rule that remedies should be tailored to the injury suffered . . . and should not unnecessarily infringe on competing interests.” Id., at 364.

The Court of Appeals concluded that dismissal of respondents’ indictments was warranted under both the Morrison standard and a presumption-of-prejudice standard that it found to be appropriate to the facts of this case. The Court of Appeals felt compelled to articulate an alternative to the Morrison standard because, in its view, this case was “fundamentally different” insofar as the right-to-counsel violation affected inmate-suspects held in administrative detention. 704 F. 2d, at 1126. The Court of Appeals concluded that in such a setting a presumption of prejudice would be appropriate “because ordinarily it will be impossible adequately either to prove or refute its existence.” Ibid. I disagree with the Court of Appeals; its own application of Morrison to the facts of this case demonstrates that even in the context of a Sixth Amendment violation affecting prisoners, the usual process of case-specific inquiry will be adequate to determine whether dismissal of an indictment is warranted. The Court of Appeals concluded that even without an assumption of prejudice “there is evidence that ‘substantial prejudice’ may have occurred” in this case. 704 F. 2d, at 1126. This conclusion satisfies the Morrison requirement that persons seeking dismissal of their indictments must show either “demonstrable prejudice, or substantial threat thereof. . . .” 449 U. S., at 365 (emphasis added). Moreover, it is a conclusion amply supported by the record.

Because I agree with the result reached by the Court of Appeals, though not with all of its reasoning, I respectfully dissent.

       The narrow issue before the Court of Appeals and before us today is whether the Sixth Amendment requires the appointment of counsel for indigent inmates in respondents’ situation. Respondents have not contended that they were denied the opportunity to retain their own private counsel while they were in administrative segregation. 704 F. 2d, at 1119. As the Court of Appeals noted, respondents had visitation privileges and the opportunity to make unmonitored phone calls to attorneys while in the ADU. Ibid. See 28 CFR §§ 541.19(c)(10), 541.20(d) (1983). Respondents also have not asserted a Sixth Amendment ineffective-assistance-of-counsel claim nor have they questioned our holding in Wolff v. McDonnell, 418 U. S. 539, 570 (1974), that inmates have no right to retained or appointed counsel at prison disciplinary proceedings. See Baxter v. Palmigiano, 425 U. S. 308, 315 (1976).

       The majority arrived at the 90-day figure based on its own interpretation of the current federal prison regulations as allowing detention for up to 90 days for disciplinary reasons. See 28 CFR § 641.20(c) (1983).

       Relying on his interpretation of current prison regulations, the Solicitor General vehemently argues that, whatever additional reasons legitimately may have contributed to the decision to confine respondents in the ADU, the primary reason for their confinement was to ensure the security of the institution. Thus he argues that that security-related detention cannot be equated with an arrest or accusation for Sixth Amendment purposes. Brief for United States 23-27; Tr. of Oral Arg. 9-12. But our holding today makes the reason for the detention irrelevant for purposes of the only issue before us, the point at which the Sixth Amendment right to counsel is triggered. Respondents have not challenged “the legitimacy of administrative detention in general or its appropriateness” in their particular cases. 704 F. 2d, at 1121.

       The Solicitor General argues here that dismissal of the indictments is an inappropriate remedy absent a showing of actual and specific prejudice to respondents and that they have not made that showing in this case. Brief for United States 44-60. Given our holding on the substantive Sixth Amendment issue, however, we have no occasion to address the remedy question.

       The only arguable deviations from that consistent line of cases are Miranda v. Arizona, 384 U. S. 436 (1966), and Escobedo v. Illinois, 378 U. S. 478 (1964). Although there may be some language to the contrary in United States v. Wade, 388 U. S. 218 (1967), we have made clear that we required counsel in Miranda and Escobedo in order to protect the Fifth Amendment privilege against self-incrimination rather than to vindicate the Sixth Amendment right to counsel. See Rhode Island v. Innis, 446 U. S. 291, 300, n. 4 (1980); Kirby v. Illinois, 406 U. S., at 689; Johnson v. New Jersey, 384 U. S. 719, 729-730 (1966).

       Of course we express no view as to when the Sixth Amendment speedy-trial right attaches in this context because that issue is not before us. The Court of Appeals for the Ninth Circuit, like several other Circuits, see, e. g., United States v. Daniels, 698 P. 2d 221, 223 (CA4 1983); United States v. Blevins, 593 F. 2d 646, 647 (CA5 1979) (per curiam), however, has held that the segregation of an inmate from the general population pending criminal charges does not constitute an “arrest” for purposes of the speedy trial right. United States v. Clardy, 540 F. 2d 439, 441, cert. denied, 429 U. S. 963 (1976). Given its own Clardy holding, the Court of Appeals’ analogy here seems somewhat strained.

       We have of course rejected the arguments that prosecutors are constitutionally obligated to file charges against a suspect as soon as they have probable cause but before they believe that they can establish guilt beyond a reasonable doubt, United States v. Lovasco, 431 U. S., at 791, and that prosecutors must file charges as soon as they marshal enough evidence to prove guilt beyond a reasonable doubt but before their investigations are complete. Id., at 792-795.

       See also 378 U. S., at 487, n. 6 (“The English Judges’ Rules also recognize that a functional rather than a formal test must be applied and that, under circumstances such as those here, no special significance should be attached to formal indictment”). Indeed, the rule the majority seems to embrace is similar to the rule advocated in dissent in Escobedo. See id., at 493-494 (Stewart, J., dissenting).

       To say, as did the Court in Johnson v. New Jersey, 384 U. S. 719 (1966), that the “prime purpose” of Escobedo and Miranda was “to guarantee full effectuation of the privilege against self-incrimination,” 384 U. S., at 729, is merely to state a central rationale for attachment of the right to counsel prior to the formal commencement of the adversary process; it in no way contradicts the proposition that the Sixth Amendment can apply prior to the initiation of judicial proceedings. Escobedo elaborates:
      “It is argued that if the right to counsel is afforded prior to indictment, the number of confessions obtained by the police will diminish significantly, because most confessions are obtained during the period between arrest and indictment, and ‘any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.’ This argument, of course, cuts two ways. The fact that many confessions are obtained during this period points up its critical nature as a ‘stage when legal aid and advice’ are surely needed. The right to counsel would indeed be hollow if it began at a period when few confessions were obtained. There is necessarily a direct relationship between the importance of a stage to the police in their quest for a confession and the criticalness of that stage to the accused in his need for legal advice. Our Constitution, unlike some others, strikes the balance in favor the right of the accused to be advised by his lawyer of his privilege against self-incrimination.” 378 U. S., at 488 (footnotes and citations omitted).

       Contrary to the majority’s intimations, the cases it cites ante, at 187-188, do not indicate that a majority of the Court has embraced the broad rule suggested by the majority’s dictum. The statement in Kirby v. Illinois, 406 U. S. 682 (1972), that the right to counsel “attaches only at or after the time that adversary judicial proceedings have been initiated,” id., at 688 (plurality opinion), was not joined by a majority. Similarly, The Chief Justice’s opinion in United States v. Mandujano, 425 U. S. 564, 581 (1976) (plurality opinion), was not joined by a majority of the Court. Estelle v. Smith, 451 U. S. 454, 469-470 (1981), and Moore v. Illinois, 434 U. S. 220, 226-227 (1977), merely describe what the Kirby plurality had required for the Sixth Amendment to attach, and held that the plurality’s test was satisfied. In neither case did the Court have occasion to consider whether the right to counsel could ever attach prior to the point identified by the Kirby plurality. As the quotation supra, at 193, demonstrates, Brewer v. Williams, 430 U. S. 387 (1977), left this issue open.

       The relevant regulation indicates that respondents could be placed in the ADU while a criminal investigation is pending because they pose a threat to themselves or others:
      “The Warden may also place an inmate in administrative detention when the inmate’s continued presence in the general population poses a serious threat to life, property, self, staff, or other inmates or to the security or orderly running of the institution and when the inmate:
      “(1) Is pending a hearing for a violation of Bureau regulations;
      “(2) Is pending an investigation of a violation of Bureau regulations;
      “(3) Is pending investigation or trial for a criminal act. . . .” 28 CFR § 541.22(a) (1983).
      The Court of Appeals construed the Bureau of Prisons’ regulations to permit detention for disciplinary purposes for no more than 90 days. See 704 F. 2d 1116,1124-1125 (CA9 1983) (en bane). Assuming that construction is correct, the fact that respondents’ detention after that point was not disciplinary does not mean it was therefore accusatory. To the contrary, the applicable regulation states: “Administrative detention is to be used only for short periods of time except where an inmate needs long-term protection ... , or where there are exceptional circumstances, ordinarily tied to security or complex investigative concerns.” 28 CFR § 541.22(c)(1) (1983) (emphasis supplied). Thus, the regulation permits continued detention for security reasons alone. Finally, even if respondents’ detention was in violation of the regulations, that does not establish that the detention, even if improper, had the purpose or effect of facilitating the criminal investigation.

       Justice Marshall disagrees with this view of the record, relying on the District Court’s statement that respondents Mills and Pierce’s confinement to the ADU “was neither a form of prison discipline nor an attempt to ensure prison security,” see post, at 200 (dissenting opinion). However, the District Court did not denominate this statement as a “finding of fact,” but rather as a “conclusion of law.” App. to Pet. for Cert. 47a-48a. The only factual predicate to this conclusion, indeed the only fact the District Court found with respect to the purpose and effect of respondents’ segregation, was that the Bureau of Prisons’ usual policies “would have required the [respondents’ release back into the general prison population or their transfer to a more secure facility within the first few months after their ADU commitment,” id., at 43a. For the reasons stated in n. 4, supra, this finding is insufficient as a matter of law to support the Court of Appeals’ judgment.

       Subjection to administrative detention meant that respondents were confined in individual cells except for short daily exercise periods, that their participation in various prison programs was curtailed, and that they were denied access to the general prison population. See 704 F. 2d 1116, 1118 (1983).

       The conclusion that respondents Mills and Pierce were prejudiced is especially reliable due to the District Court’s specific finding that “[b]ecause the passage of time has resulted in the irrevocable loss of exculpatory testimony and evidence, the government’s failure to take steps to preserve the defendants’ right to prepare a defense cannot be remedied other than by dismissing the indictment [with prejudice].” App. to Pet. for Cert. 50a.


source: Caselaw Access Project

author: Justice O’Connor Justice Rehnquist,

license: Public Domain

text:
    ARIZONA v. RUMSEY
    No. 83-226.
    Argued April 23, 1984
    Decided May 29, 1984

      William J. Schafer III argued the cause for petitioner. With him on the brief was Robert K. Corbin, Attorney General of Arizona.

      James R. Rummage, by appointment of the Court, 465 U. S. 1019, argued the cause and filed a brief for respondent.

        Timothy K. Ford, Jack Greenberg, James M. Nabrit III, and Anthony G. Amsterdam filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging affirmance.

   Justice O’Connor

delivered the opinion of the Court.

The question presented is whether the Double Jeopardy Clause prohibits the State of Arizona from sentencing respondent to death after the life sentence he had initially received was set aside on appeal. We agree with the Supreme Court of Arizona that Bullington v. Missouri, 451 U. S. 430 (1981), squarely controls the disposition of this case. Under the interpretation of the Double Jeopardy Clause adopted in that decision, imposition of the death penalty on respondent would be unconstitutional.

I

An Arizona jury convicted respondent of armed robbery and first degree murder. The trial judge, with no jury, then conducted a separate sentencing hearing to determine, according to the statutory scheme for considering aggravating and mitigating circumstances, Ariz. Rev. Stat. Ann. § 13-703 (Supp. 1983-1984), whether death was the appropriate sentence for the murder conviction. Petitioner, relying entirely on the evidence presented at trial, argued that three statutory aggravating circumstances were present. Respondent, presenting only one witness, countered that no aggravating circumstances were present but that several mitigating circumstances were. One of the principal points of contention concerned the scope of Ariz. Rev. Stat. Ann. § 13-703(F)(5) (Supp. 1983-1984), which defines as an aggravating circumstance the murder’s commission “as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.” Respondent argued that this provision applies only to murders for hire, whereas petitioner argued that it applies to all murders committed in order to obtain money.

Several days after the sentencing hearing, the trial judge, who imposes sentence without the assistance of a jury under the Arizona scheme, returned a “special verdict” setting forth his findings on each of the statutory aggravating and mitigating circumstances. The judge found that no aggravating or mitigating circumstances were present. App. 53-58. In particular, with respect to the aggravating circumstance defined in § 13-703(F)(5), the trial judge found:

“5. The defendant did not commit the offense as consideration for the receipt or in expectation of the receipt of anything of pecuniary value.
“In this regard, the Court does not agree with the State’s interpretation of A. R. S. 13-703(F)(5) and State v. Madsen filed March 26, 1980. The Court believes that when A. R. S. 13-703(F)(4) and (5) are read together that they are intended to apply to a contract-type killing situation and not to a robbery, burglary, etc.” App. 54-55.

Having found no aggravating circumstances, the trial court was statutorily barred from sentencing respondent to death. Ariz. Rev. Stat. Ann. § 13-703(E) (Supp. 1983-1984); App. to Pet. for Cert. A-3. The court accordingly sentenced respondent to life imprisonment without possibility of parole-for 25 years, the sentence statutorily mandated for first degree murder when the death penalty is not imposed. Ariz. Rev. Stat. Ann. § 13-703(A) (Supp. 1983-1984). With respect to the armed robbery conviction, the court found that respondent had committed a “dangerous offense” involving use of a deadly weapon and that there was an aggravating circumstance not outweighed by any mitigating circumstance — respondent had “planned this robbery ... in order to obtain what [he] knew was only a few hundred dollars . . . .” App. 66. As authorized by Arizona law, Ariz. Rev. Stat. Ann. §§ 13-604 and 13-702 (1978 and Supp. 1983-1984), the court accordingly sentenced respondent to 21 years’ imprisonment for armed robbery. The prison terms for the two convictions were to run consecutively.

Respondent appealed the judgment to the Supreme Court of Arizona, arguing that imposition of consecutive sentences in his case violated both federal and state law. Under Arizona law, Ariz. Rev. Stat. Ann. § 13-4032(4) (1978), respondent’s appeal permitted petitioner to file a cross-appeal from the life sentence; in that cross-appeal petitioner contended that the trial court had committed an error of law in interpreting the pecuniary gain aggravating circumstance to apply only to contract killings. The State Supreme Court rejected respondent’s challenge to his sentence. It agreed with petitioner, however, that the trial court had misinterpreted § 13-703(F)(5): “theft committed in the course of a murder” could constitute an aggravating circumstance under that section. 130 Ariz. 427, 431, 636 P. 2d 1209, 1213 (1981). Because of the trial court’s misinterpretation, the State Supreme Court concluded, “the sentence of life imprisonment previously imposed will have to be set aside and the matter remanded for redetermination of aggravating and mitigating circumstances and resentencing.” Id., at 432, 636 P. 2d, at 1214. The sentence for armed robbery was left undisturbed.

On remand the trial court held a new sentencing hearing. Neither petitioner nor respondent presented any new evidence, although they had the opportunity to do so. The court heard argument, however, both on the lawfulness of imposing the death penalty on resentencing and on the presence of aggravating and mitigating circumstances.

Petitioner argued that neither federal nor state law barred sentencing respondent to death. Petitioner also urged the court to find the three statutory aggravating circumstances identified at the first sentencing, largely repeating the arguments it had made at the first proceeding. App. 78-94. Respondent argued that imposing the death penalty would violate Bullington v. Missouri, 451 U. S. 430 (1981), North Carolina v. Pearce, 395 U. S. 711 (1969), and Arizona Rule of Criminal Procedure 26.14, which implements the resentenc-ing principles of the Pearce case. With respect to aggravating and mitigating circumstances, respondent effectively conceded the presence of the pecuniary gain aggravating circumstance, thinking the issue foreclosed by a statement in the opinion of the State Supreme Court. See App. 104; 130 Ariz., at 431, 636 P. 2d, at 1213 (“In the instant case, the hope of financial gain was a cause of the murder . . .”). But respondent contended that this aggravating circumstance was outweighed by a statutory mitigating circumstance not among the five enumerated in the death sentencing statute: according to the testimony of the jury foreperson, the conviction for first degree murder was based on the felony-murder instruction, not on the premeditation instruction; thus, respondent contended, to regard the theft as an aggravating circumstance after using it to elevate second degree murder into first would be a form of double counting. App. 94-108.

Several days after the hearing, the trial court returned a special verdict reciting findings on each of the statutory aggravating and mitigating circumstances and on the one nonstatutory mitigating circumstance urged by respondent. The court found to be present only one of the seven statutory aggravating circumstances, namely, § 13-703(F)(5), concerning commission of the murder for pecuniary gain. The court also found that none of the five statutory mitigating circumstances was present and that the fact that the murder conviction was for felony murder, if a mitigating circumstance at all, was not sufficiently substantial to call for leniency. App. 118-124. Accordingly, as required under Arizona law, Ariz. Rev. Stat. Ann. §13-703(E) (Supp. 1983-1984), the court sentenced respondent to death.

In his mandatory appeal to the Supreme Court of Arizona, respondent argued that imposition of the death sentence on resentencing, after he had effectively been “acquitted” of death at his initial sentencing, violated the Double Jeopardy Clause of the Fifth Amendment, as applied to the States by the Fourteenth Amendment. Benton v. Maryland, 395 U. S. 784 (1969). He also argued that the death sentence violated the Due Process Clause of the Fourteenth Amendment, as interpreted in North Carolina v. Pearce, supra. The Supreme Court of Arizona addressed only the first argument. It concluded that, under this Court’s decision in Bullington v. Missouri, supra, respondent’s sentence violated the constitutional prohibition on double jeopardy. 136 Ariz. 166, 665 P. 2d 48 (1983). The court therefore ordered respondent’s sentence for first degree murder reduced to life imprisonment without possibility of parole for 25 years.

The State of Arizona filed a petition for a writ of certiorari. We granted certiorari, 464 U. S. 1038 (1983), and now affirm.

1 — 1

In Bullington v. Missouri this Court held that the Double Jeopardy Clause applies to Missouri’s capital sentencing proceeding and thus bars imposition of the death penalty upon reconviction after an initial conviction, set aside on appeal, has resulted in rejection of the death sentence. The Court identified several characteristics of Missouri’s sentencing proceeding that make it comparable to a trial for double jeopardy purposes. The discretion of the sentencer — the jury in Missouri — is restricted to precisely two options: death, and life imprisonment without possibility of release for 50 years. In addition, the sentencer is to make its decision guided by substantive standards and based on evidence introduced in a separate proceeding that formally resembles a trial. Finally, the prosecution has to prove certain statutorily defined facts beyond a reasonable doubt in order to support a sentence of death. 451 U. S., at 438. For these reasons, when the Missouri sentencer imposes a sentence of life imprisonment in a capital sentencing proceeding, it has determined that the prosecution has failed to prove its case. Because the Court believed that the anxiety and ordeal suffered by a defendant in Missouri’s capital sentencing proceeding are the equal of those suffered in a trial on the issue of guilt, the Court concluded that the Double Jeopardy Clause prohibits the State from resentencing the defendant to death after the sentencer has in effect acquitted the defendant of that penalty.

The capital sentencing proceeding in Arizona shares the characteristics of the Missouri proceeding that make it resemble a trial for purposes of the Double Jeopardy Clause. The sentencer — the trial judge in Arizona — is required to choose between two options: death, and life imprisonment without possibility of parole for 25 years. The sentencer must make the decision guided by detailed statutory standards defining aggravating and mitigating circumstances; in particular, death may not be imposed unless at least one aggravating circumstance is found, whereas death must be imposed if there is one aggravating circumstance and no mitigating circumstance sufficiently substantial to call for leniency. The sentencer must make findings with respect to each of the statutory aggravating and mitigating circumstances, and the sentencing hearing involves the submission of evidence and the presentation of argument. The usual rules of evidence govern the admission of evidence of aggravating circumstances, and the State must prove the existence of aggravating circumstances beyond a reasonable doubt. See Ariz. Rev. Stat. Ann. §13-703 (Supp. 1983-1984); 136 Ariz., at 171-172, 665 P. 2d, at 53-54. As the Supreme Court of Arizona held, these characteristics make the Arizona capital sentencing proceeding indistinguishable for double jeopardy purposes from the capital sentencing proceeding in Missouri. Id., at 171-174, 665 P. 2d, at 53-56.

That the sentencer in Arizona is the trial judge rather than the jury does not render the sentencing proceeding any less like a trial. See United States v. Morrison, 429 U. S. 1, 3 (1976) (Double Jeopardy Clause treats bench and jury trials alike). Nor does the availability of appellate review, including reweighing of aggravating and mitigating circumstances, make the appellate process part of a single continuing sentencing proceeding. The Supreme Court of Arizona noted that its role is strictly that of an appellate court, not a trial court. Indeed, no appeal need be taken if life imprisonment is imposed, and the appellate reweighing can work only to the defendant’s advantage. 136 Ariz., at 173-174, 665 P. 2d, at 55-56. In short, a sentence imposed after a completed Arizona capital sentencing hearing is a judgment like the sentence at issue in Bullington v. Missouri, which this Court held triggers the protections of the Double Jeopardy Clause.

The double jeopardy principle relevant to respondent’s case is the same as that invoked in Bullington: an acquittal on the merits by the sole decisionmaker in the proceeding is final and bars retrial on the same charge. Application of the Bullington principle renders respondent’s death sentence a violation of the Double Jeopardy Clause because respondent’s initial sentence of life imprisonment was undoubtedly an acquittal on the merits of the central issue in the proceeding— whether death was the appropriate punishment for respondent’s offense. The trial court entered findings denying the existence of each of the seven statutory aggravating circumstances, and as required by state law, the court then entered judgment in respondent’s favor on the issue of death. That judgment, based, on findings sufficient to establish legal entitlement to the life sentence, amounts to an acquittal on the merits and, as such, bars any retrial of the appropriateness of the death penalty.

In making its findings, the trial court relied on a misconstruction of the statute defining the pecuniary gain aggravating circumstance. Reliance on an error of law, however, does not change the double jeopardy effects of a judgment that amounts to an acquittal on the merits. “[T]he fact that ‘the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles’ . . . affects the accuracy of that determination, but it does not alter its essential character.” United States v. Scott, 437 U. S. 82, 98 (1978) (quoting id., at 106 (Brennan, J., dissenting)). Thus, this Court’s cases hold that an acquittal on the merits bars retrial even if based on legal error.

United States v. Wilson, 420 U. S. 332 (1975), held that the prosecution could appeal from a judgment of acquittal entered by the trial judge after the jury had returned a verdict of guilty. But that holding has no application to this case. No double jeopardy problem was presented in Wilson because the appellate court, upon reviewing asserted legal errors of the trial judge, could simply order the jury’s guilty verdict reinstated; no new factfinding would be necessary, and the defendant therefore would not be twice placed in jeopardy. By contrast, in respondent’s initial capital sentencing, there was only one decisionmaker and only one set of findings of fact, all favorable to respondent. The trial court “acquitted” respondent of the death penalty, and there was no verdict of “guilty” for the appellate court to reinstate. The Supreme Court of Arizona accordingly “remanded for redetermination of aggravating and mitigating circumstances and resentencing,” 130 Ariz., at 432, 636 P. 2d, at 1214 — that is, for a second sentencing proceeding similar to the first. Whereas the defendant in Wilson was not to be subjected to a second trial after an acquittal at his first, that is precisely what has happened to respondent.

rH I — I l-H

Bullington v. Missouri held that double jeopardy protections attach to Missouri’s capital sentencing proceeding because that proceeding is like a trial. The capital sentencing proceeding in Arizona is indistinguishable for double jeopardy purposes from the proceeding in Missouri. Under Bullington, therefore, respondent’s initial sentence of life imprisonment constitutes an acquittal of the death penalty, and the State of Arizona cannot now sentence respondent to death on his conviction for first degree murder.

Petitioner has invited the Court to overrule Bullington, decided only three years ago. We decline the invitation. Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands special justification. See, e. g., Swift & Co. v. Wickham, 382 U. S. 111, 116 (1965); Smith v. Allwright, 321 U. S. 649, 665 (1944). Petitioner has suggested no reason sufficient to warrant our taking the exceptional action of overruling Bullington.

The judgment of the Supreme Court of Arizona is therefore

Affirmed.

Justice Rehnquist,

with whom Justice White joins,

dissenting.

Today the Court affirms the decision of the Arizona Supreme Court vacating the death sentence imposed on respondent for a murder committed in the course of an armed robbery. Applying the interpretation given the Double Jeopardy Clause by a bare majority of this Court in Bullington v. Missouri, 451 U. S. 430 (1981), the Court concludes that in this case the first sentencing also amounted to an implied acquittal of respondent’s eligibility for the death penalty. I continue to believe that Bullington was wrongly decided for the reasons expressed in Justice Powell’s dissent in that case. But even apart from those views, I do not believe that the reasoning underlying Bullington applies to this remand for resentencing to correct a legal error. Accordingly, I dissent.

The central premise of the Court’s holding today is that the trial court’s first finding — that there were no aggravating and no mitigating circumstances and therefore only a life sentence could be imposed — amounted to an “implied acquittal” on the merits of respondent’s eligibility for the death sentence, thereby barring the possibility of an enhanced sentence upon resentencing by virtue of the Double Jeopardy Clause. But the Court’s continued reliance on the “implied acquittal” rationale of Bullington is simply inapt. Unlike the jury’s decision in Bullington, where the jury had broad discretion to decide whether capital punishment was appropriate, the trial judge’s discretion in this case was carefully confined and directed to determining whether certain specified aggravating factors existed. Compare Mo. Rev. Stat. §565.008 (1979) with Ariz. Rev. Stat. Ann. §13-703(E) (Supp. 1983-1984). It is obvious from the record that the State established at the first hearing that respondent murdered his victim in the course of an armed robbery, a fact which was undisputed at sentencing. In no sense can it be meaningfully argued that the State failed to “prove” its case — the existence of at least one aggravating circumstance. It is hard to see how there has been an “implied acquittal” of a statutory aggravating circumstance when the record explicitly establishes the factual basis that such an aggravating circumstance existed. But for the trial judge’s erroneous construction of governing state law, the judge would have been required to impose the death penalty.

If, as a matter of state law, the Arizona Supreme Court had simply corrected the erroneous sentence itself without remanding, there could be no argument that Bullington would prevent the imposition of the death sentence. That much was made clear in our decision in United States v. Wilson, 420 U. S. 332 (1975). After stating the well-settled rule that an appellate court’s order reversing a conviction is subject to further review without subjecting a defendant to double jeopardy, we wrote:

“It is difficult to see why the rule should be any different simply because the defendant has gotten a favorable postverdict ruling of law from the District Judge rather than from the Court of Appeals, or because the District Judge has relied to some degree on evidence presented at trial in making his ruling. Although review of any ruling of law discharging a defendant obviously enhances the likelihood of conviction and subjects him to continuing expense and anxiety, a defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact.” Id., at 345.

The fact that in this case the legal error was ultimately corrected by the trial court did not mean that the State sought to marshal the same or additional evidence against a capital defendant which had proved insufficient to prove the State’s “case” against him the first time. There is no logical reason for a different result here simply because the Arizona Supreme Court remanded the case to the trial court for the purpose of correcting the legal error, particularly when the resentencing did not constitute the kind of “retrial” which the BuWmgton Court condemned. Accordingly, I would reverse the decision of the Arizona Supreme Court in this case.


author: Justice Marshall Justice Rehnquist,

text:
    BERNAL v. FAINTER, SECRETARY OF STATE OF TEXAS, et al.
    No. 83-630.
    Argued March 28, 1984
    Decided May 30, 1984

      Cornish F. Hitchcock argued the cause for petitioner. With him on the brief were Alan B. Morrison, John Cary Sims, Thomas Sullivan, and Denis A. Downey.

      Mary F. Keller, Assistant Attorney General of Texas, argued the cause for respondents. With her on the brief were Jim Mattox, Attorney General, Fernando Gomez, Assistant Attorney General, and David R. Richards.

   Justice Marshall

delivered the opinion of the Court.

The question posed by this case is whether a statute of the State of Texas violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by denying aliens the opportunity to become notaries public. The Court of Appeals for the Fifth Circuit held that the statute does not offend the Equal Protection Clause. We granted certiorari, 464 U. S. 1007 (1983), and now reverse.

Petitioner, a native of Mexico, is a resident alien who has lived in the United States since 1961. He works as a paralegal for Texas Rural Legal Aid, Inc., helping migrant farm-workers on employment and civil rights matters. In order to administer oaths to these workers and to notarize their statements for use in civil litigation, petitioner applied in 1978 to become a notary public. Under Texas law, notaries public authenticate written instruments, administer oaths, and take out-of-court depositions. The Texas Secretary of State denied petitioner’s application because he failed to satisfy the statutory requirement that a notary public be a citizen of the United States. Tex. Rev. Civ. Stat. Ann., Art. 5949(2) (Vernon Supp. 1984) (hereafter Article 5949(2)). After an unsuccessful administrative appeal, petitioner brought suit in the Federal District Court, claiming that the citizenship requirement mandated by Article 5942(2) violated the Federal Constitution.

The District Court ruled in favor of petitioner. Vargas v. Strake, C. A. No. B-79-147 (SD Tex., Oct. 9, 1981) (mem.). It reviewed the State’s citizenship requirement under a strict-scrutiny standard and concluded that the requirement violated the Equal Protection Clause. The District Court also suggested that even under a rational-relationship standard, the state statute would fail to pass constitutional muster because its citizenship requirement “is wholly unrelated to the achievement of any valid state interest.” App. to Pet. for Cert. 11a. A divided panel of the Court of Appeals for the Fifth Circuit reversed, concluding that the proper standard for review was the rational-relationship test and that Article 5949(2) satisfied that test because it “bears a rational relationship to the state’s interest in the proper and orderly handling of a countless variety of legal documents of importance to the state.” Vargas v. Stroke, 710 F. 2d 190, 195 (1983).

II

As a general matter, a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny. In order to withstand strict scrutiny, the law must advance a compelling state interest by the least restrictive means available. Applying this principle, we have invalidated an array of state statutes that denied aliens the right to pursue various occupations. In Sugar-man v. Dougall, 413 U. S. 634 (1973), we struck down a state statute barring aliens from employment in permanent positions in the competitive class of the state civil service. In In re Griffiths, 413 U. S. 717 (1973), we nullified a state law excluding aliens from eligibility for membership in the State Bar. And in Examining Board v. Flores de Otero, 426 U. S. 572 (1976), we voided a state law that excluded aliens from the practice of civil engineering.

We have, however, developed a narrow exception to the rule that discrimination based on alienage triggers strict scrutiny. This exception has been labeled the “political function” exception and applies to laws that exclude aliens from positions intimately related to the process of democratic self-government. The contours of the “political function” exception are outlined by our prior decisions. In Foley v. Connelie, 435 U. S. 291 (1978), we held that a State may require police to be citizens because, in performing a fundamental obligation of government, police “are clothed with authority to exercise an almost infinite variety of discretionary powers” often involving the most sensitive areas of daily life. Id., at 297. In Ambach v. Norwick, 441 U. S. 68 (1979), we held that a State may bar aliens who have not declared their intent to become citizens from teaching in the public schools because teachers, like police, possess a high degree of responsibility and discretion in the fulfillment of a basic governmental obligation. They have direct, day-to-day contact with students, exercise unsupervised discretion over them, act as role models, and influence their students about the government and the political process. Id., at 78-79. Finally, in Cabell v. Chavez-Salido, 454 U. S. 432 (1982), we held that a State may bar aliens from positions as probation officers because they, like police and teachers, routinely exercise discretionary power, involving a basic governmental function, that places them in a position of direct authority over other individuals.

The rationale behind the political-function exception is that within broad boundaries a State may establish its own form of government and limit the right to govern to those who are full-fledged members of the political community. Some public positions are so closely bound up with the formulation and implementation of self-government that the State is permitted to exclude from those positions persons outside the political community, hence persons who have not become part of the process of democratic self-determination.

“The exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community’s process of political self-definition. Self-government, whether direct or through representatives, begins by defining the scope of the community of the governed and thus of the governors as well: Aliens are by definition those outside of this community.” Id., at 439-440.

We have therefore lowered our standard of review when evaluating the validity of exclusions that entrust only to citizens important elective and nonelective positions whose operations “go to the heart of representative government.” Sugarman v. Dougall, supra, at 647. “While not retreating from the position that restrictions on lawfully resident aliens that primarily affect economic interests are subject to heightened judicial scrutiny... we have concluded that strict scrutiny is out of place’when the restriction primarily serves a political function. . . .” Cabell v. Chavez-Salido, supra, at 439 (citation omitted).

To determine whether a restriction based on alienage fits within the narrow political-function exception, we devised in Cabell a two-part test.

“First, the specificity of the classification will be examined: a classification that is substantially overinclusive or underinclusive tends to undercut the governmental claim that the classification serves legitimate political ends. . . . Second, even if the classification is sufficiently tailored, it may be applied in the particular case only to ‘persons holding state elective or important nonelective executive, legislative, and judicial positions,’ those officers who ‘participate directly in the formulation, execution, or review of broad public policy’ and hence ‘perform functions that go to the heart of representative government.’” 454 U. S., at 440 (quoting Sugarman v. Dougall, supra, at 647).

III

We now turn to Article 5949(2) to determine whether it satisfies the Cabell test. The statute provides that “[t]o be eligible for appointment as a Notary Public, a person shall be a resident citizen of the United States and of this state ...” Unlike the statute invalidated in Sugarman, Article 5949(2) does not indiscriminately sweep within its ambit a wide range of offices and occupations but specifies only one particular post with respect to which the State asserts a right to exclude aliens. Clearly, then, the statute is not overinclusive; it applies narrowly to only one category of persons: those wishing to obtain appointments as notaries. Less clear is whether Article 5949(2) is fatally underinclusive. Texas does not require court reporters to be United States citizens even though they perform some of the same services as notaries. Nor does Texas require that its Secretary of State be a citizen, even though he holds the highest appointive position in the State and performs many important functions, including supervision of the licensing of all notaries public. We need not decide this issue, however, because of our decision with respect to the second prong of the Cabell test.

In support of the proposition that notaries public fall within that category of officials who perform functions that “go to the heart of representative government,” the State emphasizes that notaries are designated as public officers by the Texas Constitution. Texas maintains that this designation indicates that the State views notaries as important officials occupying posts central to the State’s definition of itself as a political community. This Court, however, has never deemed the source of a position — whether it derives from a State’s statute or its Constitution — as the dispositive factor in determining whether a State may entrust the position only to citizens. Rather, this Court has always looked to the actual function of the position as the dispositive factor. The focus of our inquiry has been whether a position was such that the officeholder would necessarily exercise broad discretionary power over the formulation or execution of public policies importantly affecting the citizen population — power of the sort that a self-governing community could properly entrust only to full-fledged members of that community. As the Court noted in Cabell, in determining whether the function of a particular position brings the position within the narrow ambit of the exception, “the Court will look to the importance of the function as a factor giving substance to the concept of democratic self-government.” 454 U. S., at 441, n. 7.

The State maintains that even if the actual function of a post is the touchstone of a proper analysis, Texas notaries public should still be classified among those positions from which aliens can properly be excluded because the duties of Texas notaries entail the performance of functions sufficiently consequential to be deemed “political.” The Court of Appeals ably articulated this argument:

“With the power to acknowledge instruments such as wills and deeds and leases and mortgages; to take out-of-court depositions; to administer oaths; and the discretion to refuse to perform any of the foregoing acts, notaries public in Texas are involved in countless matters of importance to the day-to-day functioning of state government. The Texas political community depends upon the notary public to insure that those persons executing documents are accurately identified, to refuse to certify any identification that is false or uncertain, and to insist that oaths are properly and accurately administered. Land titles and property succession depend upon the care and integrity of the notary public, as well as the familiarity of the notary with the community, to verify the authenticity of the execution of the documents.” 710 F. 2d, at 194.

We recognize the critical need for a notary’s duties to be carried out correctly and with integrity. But a notary’s duties, important as they are, hardly implicate responsibilities that go to the heart of representative government. Rather, these duties are essentially clerical and ministerial. In contrast to state troopers, Foley v. Connelie, 435 U. S. 291 (1978), notaries do not routinely exercise the State’s monopoly of legitimate coercive force. Nor do notaries routinely exercise the wide discretion typically enjoyed by public school teachers when they present materials that educate youth respecting the information and values necessary for the maintenance of a democratic political system. See Ambach v. Norwich, 441 U. S., at 77. To be sure, considerable damage could result from the negligent or dishonest performance of a notary’s duties. But the same could be said for the duties performed by cashiers, building inspectors, the janitors who clean up the offices of public officials, and numerous other categories of personnel upon whom we depend for careful, honest service. What distinguishes such personnel from those to whom the political-function exception is properly applied is that the latter are invested either with policymaking responsibility or broad discretion in the execution of public policy that requires the routine exercise of authority over individuals. Neither of these characteristics pertains to the functions performed by Texas notaries.

The inappropriateness of applying the political-function exception to Texas notaries is further underlined by our decision in In re Griffiths, 413 U. S. 634 (1973), in which we subjected to strict scrutiny a Connecticut statute that prohibited noncitizens from becoming members of the State Bar. Along with the usual powers and privileges accorded to members of the bar, Connecticut gave to members of its Bar additional authority that encompasses the very duties performed by Texas notaries — authority to “ 'sign writs and subpoenas, take recognizances, administer oaths and take depositions and acknowledgements of deeds.’” Id,., at 723 (quoting Connecticut statute). In striking down Connecticut’s citizenship requirement, we concluded that “[i]t in no way denigrates a lawyer’s high responsibilities to observe that [these duties] hardly involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens.” Id., at 724. If it is improper to apply the political-function exception to a citizenship requirement governing eligibility for membership in a state bar, it would be anomalous to apply the exception to the citizenship requirement that governs eligibility to become a Texas notary. We conclude, then, that the “political function” exception is inapplicable to Article 5949(2) and that the statute is therefore subject to strict judicial scrutiny.

IV

To satisfy strict scrutiny, the State must show that Article 5949(2) furthers a compelling state interest by the least restrictive means practically available. Respondents maintain that Article 5949(2) serves its “legitimate concern that notaries be reasonably familiar with state law and institutions” and “that notaries may be called upon years later to testify to acts they have performed.” Brief for Respondents 24-25. However, both of these asserted justifications utterly fail to meet the stringent requirements of strict scrutiny. There is nothing in the record that indicates that resident aliens, as a class,- are so incapable of familiarizing themselves with Texas law as to justify the State’s absolute and classwide exclusion. The possibility that some resident aliens are unsuitable for the position cannot justify a wholesale ban against all resident aliens. Furthermore, if the State’s concern with ensuring a notary’s familiarity with state law were truly “compelling,” one would expect the State to give some sort of test actually measuring a person’s familiarity with the law. The State, however, administers no such test. To become a notary public in Texas, one is merely required to fill out an application that lists one’s name and address and that answers four questions pertaining to one’s age, citizenship, residency, and criminal record — nothing that reflects the State’s asserted interest in ensuring that notaries are familiar with Texas law. Similarly inadequate is the State’s purported interest in ensuring the later availability of notaries’ testimony. This justification fails because the State fails to advance a factual showing that the unavailability of notaries’ testimony presents a real, as opposed to a merely speculative, problem to the State. Without a factual underpinning, the State’s asserted interest lacks the weight we have required of interests properly denominated as compelling.

V

We conclude that Article 5949(2) violates the Fourteenth Amendment of the United States Constitution. Accordingly the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Rehnquist,

dissenting.

I dissent for the reasons stated in my dissenting opinion in Sugarman v. Dougall, 413 U. S. 634, 649 (1973).

       Prior to his employment in Texas, petitioner worked in a legal services program in Indiana and held a commission as a notary in that State. Vargas v. Strake, 710 F. 2d 190, 191 (CA5 1983).

       “Notaries Public shall have the same authority to take acknowledgments or proofs of written instruments, protest instruments permitted by law to be protested, administer oaths, and take depositions, as is now or may hereafter be conferred by law upon County Clerks . . . .” Tex. Rev. Civ. Stat. Ann., Art. 5954 (Vernon Supp. 1984); see also R. Rothman, Notary Public: Practices & Glossary (1978).

       This suit was initially brought by Margarita M. Vargas whom petitioner joined as a coplaintiff. Vargas is no longer a party to this suit because subsequent to filing her complaint she obtained United States citizenship. Vargas v. Strake, supra, at 192.

       The holding of the Court of Appeals conflicts with the holding of every other state and federal court decision that has considered the constitutionality of statutes barring aliens from eligibility to become notaries public. See, e. g., Jii v. Rhodes, 577 F. Supp. 1128 (SD Ohio 1983) (invalidating Ohio statute); Cheng v. Illinois, 438 F. Supp. 917 (ND Ill. 1977) (invalidating Illinois statute); Taggart v. Mandel, 391 F. Supp. 733 (Md. 1975) (invalidating Maryland statute) (three-judge court); Graham v. Ramani, 383 So. 2d 634 (Fla. 1980) (invalidating Florida statute).

       “[Cjlassifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a ‘discrete and insular’ minority ... for whom such heightened judicial solicitude is appropriate.” Graham v. Richardson, 403 U. S. 365, 372 (1971) (footnotes and citations omitted).

       Only rarely are statutes sustained in the face of strict scrutiny. As one commentator observed, strict-scrutiny review is “strict” in theory but usually “fatal” in fact. Gunther, The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).

       We emphasize, as we have in the past, that the political-function exception must be narrowly construed; otherwise the exception will swallow the rule and depreciate the significance that should attach to the designation of a group as a “discrete and insular” minority for whom heightened judicial solicitude is appropriate. See Nyquist v. Mauclet, 432 U. S. 1, 11 (1977).

       Like notaries public, court reporters are authorized to administer oaths and take depositions. Tex. Rev. Civ. Stat. Ann., Art. 2324a(1) (Vernon 1971).

       Texas appears to require only that the Secretary of State be appointed by the Governor with the advice and consent of the Senate. See Tex. Const., Art. IV, § 21. Respondents, moreover, implicitly concede that the State imposes no citizenship requirement upon the position of Secretary of State. See Brief for Respondents 21-24 (distinguishing notaries public and other officers subject to a citizenship requirement from Secretary of State).

       See Tex. Rev. Civ. Stat. Ann., Art. 5949(3) (Vernon Supp. 1984).

       The Texas Constitution provides that “[t]he Secretary of State shall appoint a convenient number of Notaries Public for the state. ...” Art. IV, § 26. Texas is one of only six States in which the State Constitution provides for the appointment of notaries. 1 G. Braden et ah, The Constitution of the State of Texas: An Annotated and Comparative Analysis 361-362 (1977) (hereinafter Braden).

       We note, moreover, that although authorization for the appointment of notaries public has long been a feature of the Texas Constitution, the significance of the position has necessarily been diluted by changes in the appointment process and by the wholesale proliferation of notaries. The Texas Constitution of 1845 authorized the appointment of only six notaries per county and directed that they be appointed by the Governor with the advice and consent of the State Senate. Braden 361. By contrast, the Texas Constitution now authorizes the Secretary of State to appoint a “convenient” number of notaries for each county. Art. IV, § 26; see also Braden 361-362. Counsel for respondents conceded at oral argument that the number of Texas notaries exceeds 100,000. Tr. of Oral Arg. 17 (“I believe, reading Petitioner’s brief, that there are in excess of 100,000. Maybe there are 300,000 notaries”).

       Notaries Public shall have the same authority to take acknowledgments or proofs of written instruments, protest instruments permitted by law to be protested, administer oaths, and take depositions, as is now or may hereafter be conferred by law upon County Clerks. ...” Tex. Rev. Civ. Stat. Ann., Art. 5954 (Vernon Supp. 1984). County clerks are authorized to record and acknowledge a wide range of documents. Art. 6591 (Vernon 1969) (“County clerks shall be the recorders for their respective counties”).

       At oral argument, counsel for respondents observed in passing that Texas authorizes notaries to subpoena witnesses for the purpose of obtaining testimony regarding the authenticity of a document, Tex. Rev. Civ. Stat. Ann., Art. 6616 (Vernon 1969), and also authorizes notaries to enforce this authority with civil contempt powers. Art. 6618. We do not consider the notary’s apparent power to hold persons in contempt at all analogous to the coercive power routinely exercised by policemen, judges, or other officers charged with the administration of justice. One indication that this power is merely formal with no relevance to day-to-day experience is that it seems to have figured in only two reported cases, the most recent of which was decided over 40 years ago in 1942. See Ex parte Wolf, 116 Tex. Crim. 127, 34 S. W. 2d 277 (1930); Harbison v. McMurray, 138 Tex. 192, 158 S. W. 2d 284 (1942). That it was not even mentioned in respondents’ brief is a further indication that this power is moribund. Cf. Jii v. Rhodes, 577 F. Supp., at 1131 (political-function exception not applicable to notary public notwithstanding notary’s statutory authorization to hold recalcitrant witness in contempt).

       In Connecticut, members of the Bar were empowered to function both as attorneys and as commissioners of the Superior Court. The former position entailed lawyer’s work; the latter, work that is often performed by notaries public. See In Re Griffiths, 413 U. S., at 723-725.

       See Tex. Rev. Civ. Stat. Ann., Art. 5949(3)(a) (Vernon Supp. 1984).

       The State did not even attempt to defend the statute against strict scrutiny, perhaps recognizing that such a defense would be futile. Rather, the State simply asserted that the statute could withstand the lesser scrutiny of rationality review. See Brief for Respondents 24.