source: Caselaw Access Project

author: Mr. Justice Blackmun Mr. Chief Justice Burger, Mr. Justice Stevens,

license: Public Domain

text:
    BIFULCO v. UNITED STATES
    No. 79-5010.
    Argued February 27, 1980
    Decided June 16, 1980

      Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Marshall, and Powell, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 401. Stevens, J., filed a dissenting opinion, in which White and Rehnquist, JJ., joined, post, p. 402.

      Steven Lloyd Barrett, by appointment of the Court, 444 U. S. 939, argued the cause for petitioner. With him on the briefs were William E. Hellerstein and Phylis Skloot Bamberger.

      Harlon L. Dalton argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Frey, and John F. De Pue.

   Mr. Justice Blackmun

delivered the opinion of the Court.

The issue presented in this case is whether § 406 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (Act), 84 Stat. 1265, 21 U. S. C. § 846, authorizes a sentencing court to impose a term of special parole upon a defendant who is convicted of conspiracy to manufacture or distribute a controlled substance.

I

Section 406 provides:

“Any person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”

The object of the conspiracy at issue in this case was the commission of the substantive offense defined in § 401 (a) of the Act, 21 U. S. C. § 841 (a). That subsection reads:

“Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally—
“(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
“(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.”

The penalties for violations of § 401 (a) are set forth in § 401 (b). That subsection authorizes the imposition of terms of imprisonment, fines, and, in some instances, mandatory minimum terms of special parole. The range of permissible punishments varies depending on the nature of the controlled substance involved, and on whether the defendant has been convicted previously of a drug offense. The penalty provision at issue is § 401 (b)(1)(B). It states:

“Except as otherwise provided in section 405 [which deals with distribution to minors], any person who violates subsection (a) of this section shall be sentenced as follows:
“In the case of a controlled substance in schedule I or II which is not a narcotic drug or in the case of any controlled substance in schedule III, such person shall be sentenced to a term of imprisonment of not more than 5 years, a fine or not more than $15,000, or both. If any person commits such a violation after one or more prior convictions of him for an offense punishable under this paragraph, or for a felony under any other provision of this title or title III or other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment of not more than 10 years, a fine of not more than $30,000, or both. Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a special parole term of at least 2 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a special parole term of at least 4 years in addition to such term of imprisonment.”

Section 401 (c) describes the operation of the special parole term provisions in greater detail. It states:

“A special parole term imposed under this section or section 405 may be revoked if its terms and conditions are violated. In such circumstances the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parole term provided for in this section or section 405 shall be in addition to, and not in lieu of, any other parole provided for by law.”

The narrow, but important, question presented in this case is whether § 406, which states the penalty for conspiracy as “imprisonment or fine or both,” but limits maximum punishment by reference to the penalty provisions of the substantive target offense, authorizes the imposition of a special parole term where that sanction is included within the penalty provisions of the target offense.

II

In an indictment filed in December 1976 with the United States District Court for the Eastern District of New York, petitioner Alphonse Bifulco and others were charged with a single count of conspiring to violate §401 (a)(1) by knowingly and intentionally manufacturing, distributing, and possessing substantial quantities of phencyclidine, a schedule III controlled substance. This conspiracy was charged as a violation of § 406. A jury found petitioner and several codefend-ants guilty of the offense charged, and petitioner was sentenced to a 4-year term of imprisonment, a fine of $1,000, and a 5-year special parole term. The United States Court of Appeals for the Second Circuit subsequently affirmed petitioner’s conviction in an unpublished order.

In January 1979, petitioner, pursuant to 28 U. S. C. § 2255, filed pro se a motion to vacate his sentence. He claimed that the sentence was unlawful because § 406 does not authorize the imposition of a special parole term to be served upon completion of a term of imprisonment. The District Court held that petitioner had been properly sentenced, and dismissed his complaint. App. 7.

On appeal, the Second Circuit affirmed. 600 F. 2d 407 (1979). In a per curiam opinion, that court followed two other Courts of Appeals that had held that § 406 authorizes the imposition of a special parole term. See United States v. Burman, 584 F. 2d 1354, 1356-1358 (CA4 1978), cert. denied, 439 U. S. 1118 (1979), and United States v. Jacobson, 578 F. 2d 863, 867-868 (CA10), cert. denied, 439 U. S. 932 (1978). It also relied on the decision in United States v. Dankert, 507 F. 2d 190 (CA5 1975), which reached a similar result with respect to the closely analogous sentencing provisions of § 1013 of the Act, 21 U. S. C. § 963 (proscribing any conspiracy to import a controlled substance).

Shortly after the Second Circuit’s decision in this case, the United States Court of Appeals for the Third Circuit reached the opposite conclusion on the issue and held that a special parole term may not be imposed under § 406. United States v. Mearns, 599 F. 2d 1296 (1979), aff’g 461 F. Supp. 641 (Del. 1978), cert. pending, No. 79-415. We granted certiorari, 444 U. S. 897 (1979), to resolve this conflict among the Courts of Appeals.

III

The Government recognizes, Brief for United States 31, n. 26, that our examination of the meaning of § 406 must be informed by the policy that the Court has expressed as “the rule of lenity.” In past cases the Court has made it clear that this principle of statutory construction applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose. See, e. g., United States v. Batchelder, 442 U. S. 114, 121 (1979); Simpson v. United States, 435 U. S. 6, 14-15 (1978). The Court’s opinion in Ladner v. United States, 358 U. S. 169, 178 (1958), states the rule: “This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” See Whalen v. United States, 445 U. S. 684, 695, n. 10 (1980); Simpson v. United States, 435 U. S., at 15.

The Court has emphasized that the “touchstone” of the rule of lenity “is statutory ambiguity.” See, e. g., Lewis v. United States, 445 U. S. 55, 65 (1980). Where Congress has manifested its intention, we may not manufacture ambiguity in order to defeat that intent. The Government argues here that there can be no uncertainty about Congress’ intent to authorize a special parole term as a penalty for a conspiracy offense, whenever that penalty is authorized for the offense that was the target of the conspiracy. In advancing this argument, it focuses on the language and structure, legislative history, and motivating policies of the Act. We examine these three factors in turn.

A

Language and structure of the Act. Several reviewing courts have adopted the view that the special parole term specified in § 401 (b)(1) (B) is necessarily included within the “term of imprisonment” to which it is appended. See, e. g., United States v. Jacobson, 578 F. 2d, at 868. Thus, when Congress stated in § 406 that a person guilty of attempt or conspiracy “is punishable by imprisonment,” it meant to include within the term “imprisonment” any special parole term made applicable by the penalty provisions of the substantive offense. This argument is not' too persuasive, however, because special parole is not authorized for all substantive offenses to which § 406 refers. Therefore, “imprisonment” within the meaning of § 406 does not always include special parole. As a period of supervision served upon completion of a prison term, special parole is also functionally distinct from incarceration. Finally, the penalty provisions of those substantive offenses that authorize special parole terms reflect this functional dichotomy. Section 401(b)(1)(B), for example, twice provides that a special parole term of years is to be imposed “in addition to such term of imprisonment.” (Emphasis added.) We agree, therefore, with the conclusion of those courts that have rejected the argument that “imprisonment” in § 406 plainly means a term of incarceration plus special parole. See. e. g., United States v. Jacquinto, 464 F. Supp. 728, 729-730 (ED Pa. 1979).

Faced with these obstacles, the Government cannot rely solely on a “plain meaning” interpretation of the term “imprisonment.” Thus, in its principal argument, the Government asks this Court to take a broader view of the relationship between § 406 and the penalty provisions for substantive offenses and to conclude that the structure of the Act, viewed as a whole, creates an inference that § 406 incorporates by reference those substantive penalty provisions. The Government contends that the language of the statute supports this reading because § 406 authorizes penalties “which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” While this argument is not wholly without force, it ignores the immediately preceding words of § 406, which state that “[a]ny person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both.” (Emphasis added.) Petitioner argues that § 406 defines the types of punishment authorized for conspirators — imprisonment, fine, or both — and sets maximum limits on those sanctions through reference to the penalty provisions of the target offense. Petitioner’s reading of the language of § 406, and the sentencing scheme that it proposes, is no less plausible than the Government’s. Moreover, it is petitioner’s reading that finds further support in the structure of the Act read as a whole.

Section 406 is not the only provision of the Act that defines sentences by reference to the penalty provisions of other offenses. Section 405 (a) of the Act, 21 U. S. C. § 845 (a), which enhances punishment for one convicted of distributing a controlled substance to a minor, provides:

“Any person at least eighteen years of age who violates section 401 (a)(1) by distributing a controlled substance to a person under twenty-one years of age is . . . punishable by (1) a term of imprisonment, or a fine, or both, up to twice that authorized by section 401 (b), and (2) at least twice any special parole term authorized by section 401 (b), for a first offense involving the same controlled substance and schedule.” (Emphasis supplied.)

At the least, Congress’ separate enumeration of intended penalties in § 405 confirms its design to adhere to the functional distinction between “imprisonment, or a fine, or both” and the unique and novel concept of special parole. That no reference is made to special parole in § 406 thus supports petitioner’s view that Congress did not intend it to constitute an element of the sentence imposed upon one convicted of conspiracy or attempt.

Further proof that Congress intended special parole to be imposed only for certain substantive offenses defined in § 401 and § 405, and not for other offenses under the Act, is found in §401 (c), which defines the workings of special parole. That subsection states: “A special parole term imposed under this section or section J+05 may be revoked if its terms and conditions are violated.” (Emphasis supplied.) One convicted and sentenced for conspiracy under § 406 cannot be said to have had his sentence “imposed under” § 401 or § 405.

B

Legislative history. Conceding that Congress’ draftsmanship when it enacted § 406 may have been less than “explicit,” Brief for United States 17, and n. 10, the Government asks this Court to look beyond the ambiguous language of the statute, and to give its words “their fair meaning in accord with the manifest intent of the lawmakers.” United States v. Brown, 333 U. S. 18, 26 (1948). The Government argues that the legislative history of the Act demonstrates that Congress intended that the penalties authorized for substantive offenses, and those for conspiracies to commit them, were to be identical.

It is true that prior to the Act federal narcotics legislation provided for a congruence between sentences authorized for substantive violations and sentences authorized for conspiracies. A similar congruence was a feature of the several bills introduced in Congress in 1969 that were the forerunners of the Act. But a special parole term, a sanction previously unknown in the administration of our system of criminal justice, was not authorized as a penalty for any offense in those initial proposals.

The special parole concept first was presented to Congress by John Ingersoll, Director of the Bureau of Narcotics and Dangerous Drugs, in testimony before a Senate Subcommittee on October 20, 1969. See Narcotics Legislation: Hearings on S. 1895 et al. before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 663, 676 (1969). The Attorney General earlier had sought Subcommittee approval for further input from the Justice Department on the penalty structures in the pending legislation, id., at 255, and Mr. Ingersoll presented several alternative penalty schemes for the Subcommittee’s consideration. His comments to the Subcommittee concerning the special parole provisions were, in their entirety, as follows:

“Another requirement that has been included in the alternative penalty schemes is a special parole term that is a part of the illicit trafficking sentence structure. Just as incarceration is not always a meaningful answer to effective rehabilitation, certainly incarceration without an adequate supervisory followup after release is not in the best interest of society.
“Therefore, we have required a special parole term so that persons sentenced for trafficking violations would be placed under supervision for a period of time regardless of whether they are incarcerated or their sentence probated or suspended. The intent here is to give the judges another tool for sentencing and another means of protecting society when dealing with the drug violator.” Id., at 676.

Mr. Ingersoll did not specify whether special parole terms were to be authorized for conspiracies to commit trafficking offenses, see n. 11, supra, and the bill that eventually was approved by the full Senate Committee on the Judiciary was no less ambiguous. See S. Rep. No. 91-613, pp. 116-118 (1969). That bill, S. 3246, 91st Cong., 2d Sess. (1970), in its §§ 501 (c)(1) and (2), mandated the imposition of a special parole term whenever a prison sentence was imposed under the forerunners to §§ 401 (b)(1)(A) and (B). But § 504 of the bill, the forerunner to § 406, included no reference to special parole.

The Judiciary Committee’s section-by-section analysis of S. 3246 noted that special parole terms were to be imposed for certain substantive offenses, S. Rep. No. 91-613, at 25, but with respect to the “endeavor and conspiracy” provision stated only: “Section 504 provides that any person who endeavors or conspires to commit any offense defined in this title may be punished by imprisonment and/or a fine, which may not exceed the maximum punishment prescribed for the offense.” Id., at 26. The Government argues that the Subcommittee meant to include a specific reference to special parole in § 504 when it amended the substantive offense sections in response to Mr. Ingersoll’s testimony. For unexplained reasons, however, the Subcommittee neglected to make the conforming change in the conspiracy section. Brief for United States 22. The wording of the Judiciary Committee’s section-by-section analysis, however, would seem to indicate its awareness that § 504, unlike the subsections of § 501 that had been amended to incorporate the concept of special parole, authorized punishments consisting only of “imprisonment and/or a fine.”

Further support for the view that the Judiciary Committee knew what it was doing when it approved § 504 of S. 3246 may be found in those provisions of the bill that dealt with a second or subsequent offense. Under the Act, doubly enhanced penalties for second offenders are included within the provisions defining the sentences for individual substantive offenses. See, e. g., §401 (b)(1)(B), quoted supra, at 383-384. S. 3246, however, contained a separate provision, § 508 (a), that set out the penalties for repeat offenders. It stated:

“Any person convicted of any offense under this Act is, if the offense is a second or subsequent offense, punishable by a term of imprisonment twice that authorized, by twice the fine otherwise authorized, or by both. If the conviction is for an offense punishable under subsection 501 (c)(1) or subsection 501 (c) (2) of this Act [the forerunners to §§401 (b)(1)(A) and (B)], and if it is the offender’s second or subsequent offense, the court shall impose, in addition to any terms of imprisonment and fine, twice the special parole term otherwise authorized.” S. Rep. No. 91-613, at 119-120.

We think this section of the Senate bill makes it fairly evident that the Committee recognized that it had provided for the imposition of special parole terms under various subsections of § 501, but that it had not done so generally. Thus, § 508 (a) of S. 3246, like § 405 of the Act, reveals that Congress’ failure explicitly to incorporate the concept of special parole into the Act’s conspiracy provision, alleged by the Government to have been inadvertent, in fact may have been intentional.

The only reference made to the special parole provisions during the Senate debates on S. 3246 tends to confirm this conclusion. Senator Dodd, the Subcommittee chairman, summarized the sentencing provisions of §§501 (c)(1) and (2) as follows:

“Those selling schedule I and II narcotics such as heroin and opium can draw a sentence of up to 12 years and a possible fine of $25,000. For schedules I, II, and III sales of non-narcotics such as marihuana, ‘pep pills’ and the like, the sentence is up to 5 years and a possible fine not exceeding $15,000. A [minimum] special parole term of from 2 to 3 years is required for each of the above offenses.” 116 Cong. Rec. 996 (1970).

Senator Dodd did not mention the special parole concept in the context of any other sentencing provisions; § 504, the conspiracy provision of S. 3246, was not mentioned at all during the Senate debates.

Given the scant support in the legislative history of the Senate bill for the Government’s position, it is not surprising that the Government must place greater reliance on events that transpired during the House’s consideration of proposed narcotics legislation similar to S. 3246. H. R. 17463, the subject of hearings before the House Committee on Ways and Means in July 1970, contained penalty provisions that were substantially identical to those in S. 3246. See H. R. 17463, 91st Cong., 2d Sess., §§501 (c)(1), (c)(2), and 504 (1970), reprinted in Ways and Means Hearings 61, 66.

Mr. Ingersoll appeared before the Committee on Ways and Means, testified as to the Department of Justice’s firm support for H. R. 17463, and submitted a section-by-section analysis of the bill which highlighted the differences between its provisions and existing federal narcotics legislation. Ways and Means Hearings 210-211. That analysis described the operation of the special parole terms applicable to § 501 (c), and noted: “This special parole term is a new program, and there are no comparable laws now in force for narcotic drug law convictions.” Id., at 222. With respect to the bill’s conspiracy provision, § 504, Mr. Ingersoll’s section-by-section analysis stated:

“This section provides that a person may be punished for endeavoring or conspiring to commit an offense under this Act. Upon conviction, his sentence may not exceed the punishment prescribed for the offense which was the object of the attempt or the conspiracy.” Id., at 223.

The Government would read the second sentence of this passage as explaining “that the sentencing scheme contemplated that conspiracy was to be punished to the same extent as object offenses, without exception.” Brief for United States 24. But the Ingersoll statement, like the language enacted in § 406, explains merely that the punishment imposed for conspiracy may not exceed the punishment authorized for the pertinent target offense. It does not define the punishment authorized under the conspiracy provision to include special parole, and it does not disavow petitioner’s theory that § 406 defines the types of punishment authorized for conspiracy, while the penalty provisions of the target offense set the maximum amounts of those types of punishment that properly may be imposed. Moreover, a chart submitted to the Committee by the Justice Department, and appended to Mr. Ingersoll’s section-by-section analysis, specifically noted that H. It. 17463 authorized the imposition of special parole terms for certain substantive offenses. Ways and Means Hearings 229. With respect to the conspiracy section of the bill, however, the chart contained a footnote that merely reads: “H. R. 17463 provides that any person who endeavors or conspires to commit any offense under the act may be punished by imprisonment and/or fine, which may not exceed the maximum punishment proscribed [sic] for committing the offense.” Id., at 230, n. 6. (Emphasis supplied.) In sum, we find no persuasive support for the Government’s argument in the report of the hearings before the House Committee on Ways and Means.

The hearings before the Committee on Ways and Means followed earlier hearings conducted by the House Committee on Interstate and Foreign Commerce. The latter Committee issued the House Report on H. R. 18583, 91st Cong., 2d Sess. (1970), which contained additions and revisions to H. R. 17463 not pertinent to the sentencing provisions at issue here. H. R. Rep. No. 91-1444, pt. 1 (1970). Like the Senate Report, the House Report appears plainly to recognize the distinction between the penalties for specific substantive offenses, authorizing special parole terms, and the conspiracy offense, authorizing only terms of imprisonment and fines. Thus, with respect to § 406 of H. R. 18583, the direct ancestor of the present § 406, the House Report’s section-by-section analysis states:

“Section 406 provides that any person who attempts or conspires to commit any offense defined in this title may be punished by imprisonment and/or fine which may not exceed the maximum amount set for the offense, the commission of which was the object of the attempt or conspiracy.” H. R. Rep. No. 91-1444, at 50. (Emphasis supplied.)

The grammatical structure of this sentence lends obvious support to petitioner’s theory that §406 authorizes two types of sanctions — fines and imprisonment — and fixes the maximum amount of each that may be imposed by reference to the penalty provisions of the target offense.

In conclusion, we believe that, rather than supporting the Government’s argument that Congress manifested an intention to authorize special parole terms for conspiracy convictions, the Act’s legislative history supports the opposite view. In hearings, debates, and legislative reports, to the extent that Congress’ attention was drawn to the matter, Members of both Houses explicitly recognized that the penalty provisions of some substantive offenses attached a mandatory minimum term of special parole to any term of imprisonment. On the other hand, every reference to one of the forerunners of § 406 stated that it authorized penalties consisting of imprisonment and/or fine, and failed to mention special parole.

C

Motivating policy. The Government strongly argues, finally, that Congress’ principal objective in enacting the penalty provisions of the Act — to deter professional criminals from engaging in drug trafficking for profit — “render [s] it unreasonable to ascribe to [Congress] the intent to authorize special parole for isolated substantive offenses while withholding this major sentencing tool for conspiracy offenses.” Brief for United States 28. This contention is unpersuasive for two reasons.

First, as petitioner points out, Brief for Petitioner 14-23; Reply Brief for Petitioner 1-3, a comparison of those drug offenses for which Congress clearly authorized the imposition of special parole terms with those for which it clearly did not, does not reveal a coherent pattern based on the asserted justification for escalated sanctions. For some of the most serious offenses, as measured by the length of the term of imprisonment and severity of the fine they authorize, special parole is not included among the available sanctions. E. g., § 408 of the Act, 21 U. S. C. § 848 (continuing criminal enterprise) ; § 403 of the Act, 21 U. S. C. § 843 (registrants); and the new § 401 (d) of this Act, 21 U. S. C. § 841 (d) (1976 ed., Supp. II) (piperidine offenses). Thus, the Government’s argument based on Congress’ sentencing objectives would prove too much.

Second, the thrust of the Government’s argument is that the conspiracy to engage in drug trafficking presents at least as great a threat, if not a greater one, to the community as does an isolated act of distribution. In other contexts, we have recognized the logic of that view. See, e. g., Iannelli v. United States, 420 U. S. 770, 778 (1975). From this premise, the Government contends that Congress must have desired the harsh sanctions incorporated within the concept of special parole — the unlimited maximum length of its term and the grave consequences attending its revocation, see § 401 (c)— to be available to the judge sentencing a drug conspirator.

What the Government does not mention, however, is that § 406 sets identical penalties for conspiracies and for attempts. Congress dealt with both these forms of inchoate crime in a single provision, and prescribed an identical range of punishment for a person convicted of participation in a major trafficking conspiracy, and for another person convicted of an unsuccessful attempt to manufacture or distribute a small amount of a controlled substance. When one focuses on the fact that § 406 penalizes attempts as well as conspiracies, it is not surprising that Congress would provide for less stringent sanctions to be imposed for violations of that provision than for a completed substantive offense. Indeed, as Mr. Ingersoll pointed out in his section-by-section analysis of H. R. 17463, prior to the passage of this Act an attempt to commit a substantive drug offense was not punishable at all under the federal narcotics laws. Ways and Means Hearings 223.

IV

This investigation into the meaning of § 406, as informed by an examination of its language and structure, its history, and relevant policy considerations, yields the likely conclusion that Congress’ failure specifically to authorize the imposition of special parole terms as punishment for those convicted of conspiracy was not a slip of the legislative pen, nor the result of inartful draftsmanship, but was a conscious and not irrational legislative choice. Our analysis reveals, at the least, a complete absence of an unambiguous legislative decision to authorize special parole terms as punishment for those convicted of drug conspiracies. Of course, to the extent that doubts remain, they must be resolved in accord with the rule of lenity. If our construction of Congress’ intent, as evidenced by the scant record it left behind, clashes with present legislative expectations, there is a simple remedy — the insertion of a brief appropriate phrase, by amendment, into the present language of § 406. But it is for Congress, and not this Court, to enact the words that will produce the result the Government seeks in this case.

The judgment of the Court of Appeals is reversed, and the case is remanded to that court with instructions to vacate the special parole term that was imposed upon petitioner.

It is so ordered.

Mr. Chief Justice Burger,

concurring.

If the question presented by this case were as simple and easy as the dissent formulates it — whether “the directors of a narcotics distribution business [should] be punished less severely than their subordinates who merely peddle the poison” — none of us would have any difficulty with the decision. But that is not really the issue. Rather, the question before the Court is substantially more limited: What do the words of the statute mean? Of course, we must try to discern the intent of Congress. But we perform that task by beginning with the ordinary meaning of the language of the statute. Our compass is not to read a statute to reach what we perceive — or even what we think a reasonable person should perceive — is a “sensible result”; Congress must be taken at its word unless we are to assume the role of statute revisers. Aaron v. SEC, 446 U. S. 680 (1980); TV A v. Hill, 437 U. S. 153, 173 (1978).

Particularly in the administration of criminal justice, a badly drawn statute places strains on judges. See, e. g., Busic v. United States, 446 U. S. 398 (1980); LaRocca v. United States (decided with Busic). The temptation to exceed our limited judicial role and do what we regard as the more sensible thing is great, but it takes us on a slippery slope. Our duty, to paraphrase Mr. Justice Holmes in a conversation with Judge Learned Hand, is not to do justice but to apply the law and hope that justice is done. The Spirit of Liberty: Papers and Addresses of Learned Hand 306-307 (Dilliard ed. 1960).

Not without the same reluctance that in my view underlies the Court's opinion, I join the opinion.

Mr. Justice Stevens,

with whom Mr. Justice White and Mr. Justice Rehnquist join, dissenting.

Should the directors of a narcotics distribution business be punished less severely than their subordinates who merely peddle the poison? It is unlikely that Congress so intended. See Callanan v. United States, 364 U. S. 587, 593-594.

Since an ordinary reading of § 406 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 implies that a conspirator may be punished just as severely as a substantive offender, I would so construe the statute. This construction is fortified by the total absence of any statement by any legislator suggesting any purpose to treat conspirators in the drug trade with any greater lenity than substantive offenders. This is particularly important in view of the fact that prior to the 1970 Act, Congress had authorized identical penalties for conspiracies and completed offenses. See ante, at 391.

Because the statutory language conveys quite a different meaning to me, and because the Court has not paused to consider the narrow issue presented by this case in the context of the larger objectives Congress was seeking, I respectfully dissent.

       The Act, Pub. L. 91-513, is set forth at 84 Stat. 1236-1296. For the sake of simplicity, further otherwise appropriate citations to the Statutes at Large will be omitted.

       This provision was amended in 1978, but the amendment is not pertinent to the issue presented here. See Pub. L. 95-633, § 201, 92 Stat. 3774, 21 U. S. C. §841 (b)(1)(B) (1976 ed., Supp. II).

       The Court of Appeals stated that petitioner was charged with two substantive violations of § 401 (a) (1), in addition to the conspiracy count, and that he was acquitted of the substantive charges. 600 F. 2d 407, 408 (CA2 1979). The parties agree, however, that this is error and that petitioner was charged with, and convicted on, a single conspiracy count. Brief for Petitioner 4, n. 2; Brief for United States 4, n. 2.

       Two Courts of Appeals, in addition to those followed by the Second Circuit in this case, have joined in the conclusion that § 406 authorizes the imposition of a special parole term where such a term is included in the penalty provisions of the target offense. See United States v. Sellers, 603 F. 2d 53, 58 (CA8 1979), and Cantu v. United States, 598 F. 2d 471, 472 (CA5 1979). In addition, in a number of cases appellate courts have affirmed the convictions of defendants sentenced to special parole terms under § 406 without considering the question whether special parole was authorized. For example, the question presented here may have lingered beneath the surface in United States v. Timmreck, 441 U. S. 780 (1979),
      In Mearns, the Third Circuit followed the lead of two District Court opinions (in addition to the opinion there under review) holding that special parole is not a penalty authorized by § 406. See United States v. Jacquinto, 464 F. Supp. 728 (ED Pa. 1979), and Fassette v. United States, 444 F. Supp. 1245 (CD Cal. 1978). Cf. United States v. Wells, 470 F. Supp. 216 (SD Iowa 1979) (adopting the Mearns rationale in sentencing, pursuant to 18 U. S. C. § 3, accessories after the fact to a drug conspiracy).

       The dissent’s “ordinary reading of § 406,” post, at 402, appears to be based on this same incomplete reading of the words of the conspiracy provision.

       Section 405 (b) likewise provides for treble enhancement of the fine, the term of imprisonment, and the minimum length of any special parole term, for one who is convicted a second or subsequent time for distributing a controlled substance to a minor.

       The Government argues that the express reference to special parole in § 405 does not detract from the view that § 406 incorporates special parole by implication. It contends that it was necessary for Congress to deal with special parole explicitly in § 405 because it chose to mandate a minimum special parole term of at least twice the length of the term authorized under § 401 (b), whereas § 405 imposes a fine or imprisonment of up to twice that otherwise authorized. The Government's argument does not dispel the fact, however, that Congress specifically accommodated the concept of special parole in one general provision imposing sentence by reference to other offenses, but did not do so with respect to an adjacent provision, § 406.

       The Government would explain the specificity of § 401 (c) as an instance where the drafters of that provision “simply looked to see what sections of the proposed bill used the term special parole, and inserted those section numbers into [the forerunner of §401 (c)].” Brief for United States 26-27, n. 22. It argues, of course, that although § 406 did not refer to special parole in so many words, it did incorporate the sentencing provisions of § 401. We reject the Government’s argument for reasons stated in the text. Moreover, its “explanation” assumes a carelessness in draftsmanship that probably is unwarranted; see the following subparts B and C.

       See 21 U. S. C. §§ 174, 176a, 176b (1964 ed.); and 26 U. S. C. §§ 7237 (a) and (b) (1964 ed.).

       See S. 1895, 91st Cong., 1st Sess., §§ 701-708 (1969), and S. 2637, 91st Cong., 1st Sess., §§ 501-508 (1969), reprinted in Narcotics Legislation: Hearings on S. 1895 et al. before the Subcommittee to Investigate-Juvenile Delinquency of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 69-77, 160-170 (1969). See also H. R. 13743 and H. R. 14774, 91st Cong., 1st Sess., §§ 501-508 (1969), reprinted in Part 1, Drug Abuse Control Amendments — 1970: Hearings on H. R. 11701 and H. R. 13743 before the Subcommittee on Public Health and Welfare of the House Committee on Interstate and Foreign Commerce, 91st Cong., 2d Sess., 17-20 (1970).

       A chart setting out the alternative penalty schemes proposed by the Justice Department is included in the record of hearings held before the Subcommittee on Public Health and Welfare of the House Committee on Interstate and Foreign Commerce. Id., at 90-92. This chart describes the penalty provisions favored by the Department for attempt and conspiracy as providing “that any person who attempts or conspires to commit any offense under the Act may be punished by imprisonment and/or fine, which may not exceed the maximum punishment proscribed for committing the offense.” Id., at 92. No mention is made of special parole terms in the conspiracy context. It seems, therefore, that the inexact draftsmanship that the Government would find in the legislative history of § 406 is not to be attributed solely to Congress.

       The forerunner to §401 (b)(1)(B) was § 301 (e)(2) of S. 3246. It provided an identical penalty scheme for first offenders as does the current substantive offense — a term of imprisonment of not more than five years, a fine of not more than $15,000, or both, and a 2-year minimum special parole term in addition to any term of imprisonment. See S. Rep. No. 91-613, at 116.

       Section 504 of S. 3246, which differed from § 406 only in its use of the term “endeavor” rather than “attempt,” provided:
      “Any person who endeavors or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the endeavor or conspiracy.” S. Rep. No. 91-613, at 118.

       An identical provision was contained in H. R. 17463, 91st Cong., 2d Sess., § 508 (a) (1970), a forerunner of the Act approved by one of the two House Committees to conduct hearings on the proposed narcotics legislation. See Controlled Dangerous Substances, Narcotics and Drug Control Laws: Hearings on H. R. 17463 before the House Committee on Ways and Means, 91st Cong., 2d Sess., 69 (1970) (hereinafter Ways and Means Hearings). The bill eventually passed by the House, H. R. 18583, 91st Cong., 2d Sess. (1970), incorporated enhanced penalties for repeat offenders within the individual substantive offenses. See 116 Cong. Rec. 33625 (1970). The House bills are discussed further below.

       The Government makes the same argument with respect to the repeat offender provisions of S. 3246 and H. R. 17463 that it makes with respect to §405, see n. 7, supra. The argument is no more persuasive here.

       The dissent takes us to task for failing to recognize that it is unlikely that Congress would intend that “the directors of a narcotics distribution business be punished less severely than their subordinates who merely peddle the poison.” Post, at 402. But even a cursory reading of the Act should make it clear that our opinion today will not result in the sentencing disparity the dissent fears. Section 406’s punishment provisions are not the sole sanctions Congress enacted for apprehended directors of organized drug trafficking operations. First, nothing prevents the Government from prosecuting the operators of a distribution network, either as principals or as aiders and abettors, for substantive manufacturing, distribution, and possession offenses, pursuant to § 401 of the Act, 21 U. S. C. § 841. Second, and more significantly, Congress enacted two special provisions with the directors of large trafficking operations particularly in mind. The sanctions available under those provisions are especially severe. See § 408 of the Act, 21 U. S. C. § 848 (continuing criminal enterprise); §§ 409 (e)(2) and (3) of the Act, 21 U. S. C. §§ 849 (e) (2) and (3) (defining a special drug offender).

       One might quarrel with our conclusion that Congress was aware of the distinction between the penalty provisions of § 401 (b) (1) (B) and § 406, and chose not to include special parole terms among the sanctions authorized for attempts and conspiracies. That it would be extremely difficult to accept the Government’s argument that Congress unambiguously intended a contrary result, however, perhaps is best evidenced by the fact that the rule of lenity is not mentioned, let alone applied, in any of the lower court opinions that have accepted the Government’s position. See cases cited in n. 4, supra, and accompanying text. The dissenting opinion would appear to fare little better on that score.

       “Any person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” 84 Stat. 1265, 21 U. S. C. § 846.

       Surely the Court’s reference ante, at 399, to the offense of attempt cuts the other way, for it is common for legislation to authorize the same range of punishments for attempts as for substantive offenses. See, e. g., American Law Institute, Model Penal Code § 5.05 (1) (Prop. Off. Draft 1962), which provides in part: “Except as otherwise provided in this Section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy.”


author: Per Curiam.

text:
    ANDERSON, WARDEN v. CHARLES
    No. 79-1377.
    Decided June 16, 1980
   Per Curiam.

Respondent Glenn Charles was arrested in Grand Rapids, Mich., while driving a stolen car. The car belonged to Theodore Ziefle, who had been strangled to death in his Ann Arbor home less than a week earlier. The respondent was charged with first-degree murder. At his trial in the Circuit Court of Washtenaw County, Mich., the State presented circumstantial evidence linking the respondent with the crime. The respondent was found with Ziefle’s car and some of his other personal property. The respondent also owned clothing like that worn by the man last seen with the victim, and he boasted to witnesses that he had killed a man and stolen his car. Police Detective Robert LeVanseler testified that he interviewed the respondent shortly after his arrest. After giving the respondent Miranda warnings, LeVanseler asked him about the stolen automobile. According to LeVanseler, the respondent said that he stole the car in Ann Arbor from the vicinity of Washtenaw and Hill Streets, about two miles from the local bus station.

The respondent testified in his own behalf. On direct examination, he stated that he took Ziefle’s unattended automobile from the parking lot of Kelly’s Tire Co. in Ann Arbor. On cross-examination, the following colloquy occurred:

“Q. Now, this Kelly’s Tire Company, that’s right next to the bus station, isn’t it?
“A. That’s correct.
“Q. And, the bus station and Kelly’s Tire are right next to the Washtenaw County Jail are they not?
“A. They are.
“Q. And, when you’re standing in the Washtenaw County Jail looking out the window you can look right out and see the bus station and Kelly’s Tire, can you not?
“A. That’s correct.
“Q. So, you’ve had plenty of opportunity from — well, first you spent some time in the Washtenaw County Jail, haven’t you?
“A. Quite a bit.
“Q. And, you have had plenty of opportunity to look out that window and see the bus station and Kelly’s Tire?
“A. That’s right.
“Q. And, you’ve seen cars being parked there, isn’t that right?
“A. That’s correct.
“Q. Is this where you got the idea to come up with the story that you took a car from that location?
“A. No, the reason I came up with that is because it’s the truth.
“Q. It's the truth?
“A. That’s right.
“Q. Don’t you think it’s rather odd that if it were the truth that you didn’t come forward and tell anybody at the time you were arrested, where you got that car?
“A. No, I don’t.
“Q. You don’t think that’s odd?
“A. I wasn’t charged with auto theft, I was charged with murder.
“Q. Didn’t you think at the time you were arrested that possibly the car would have something to do with the charge of murder?
“A. When I tried to talk to my attorney they wouldn’t let me see him and after that he just said to keep quiet.
“Q. This is a rather recent fabrication of yours isn’t [sic] it not?
“A. No it isn’t.
“Q. Well, you told Detective LeVanseler back when you were first arrested, you stole the car back on Wash-tenaw and Hill Street?
“A. Never spoke with Detective LeVanseler.
“Q. Never did?
“A. Right, except when Detective Hall and Price were there and then it was on tape.” Trial Transcript 302-304.

The jury convicted the respondent of first-degree murder. The Michigan Court of Appeals affirmed, People v. Charles, 58 Mich. App. 371, 227 N. W. 2d 348 (1975), and the Michigan Supreme Court denied leave to appeal, 397 Mich. 815 (1976). The respondent then sought a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. The District Court withheld the writ, but a divided panel of the Court of Appeals for the Sixth Circuit reversed. The Court of Appeals held that “the prosecutor’s questions about [respondent’s] post-arrest failure to tell officers the same story he told the jury violated due process” under the rule of Doyle v. Ohio, 426 U. S. 610 (1976). 610 F. 2d 417, 422 (1979). The prison warden now petitions for a writ of certiorari. We grant the petition, grant the respondent leave to proceed in forma pauperis, and reverse the judgment of the Court of Appeals.

In Doyle, we held that the Due Process Clause of the Fourteenth Amendment prohibits impeachment on the basis of a defendant’s silence following Miranda warnings. The case involved two defendants who made no postarrest statements about their involvement in the crime. Each testified at trial that he had been framed. On cross-examination, the prosecutor asked the defendants why they had not told the frameup story to the police upon arrest. We concluded that such impeachment was fundamentally unfair because Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. 426 U. S., at 618-619; see Jenkins v. Anderson, ante, at 239-240.

Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all. See United States v. Agee, 597 F. 2d 350, 354-356 (CA3) (en banc), cert. denied, 442 U. S. 944 (1979); United States v. Mireles, 570 P. 2d 1287, 1291-1293 (CA5 1978); United States v. Goldman, 563 F. 2d 501, 503-504 (CA1 1977), cert. denied, 434 U. S. 1067 (1978).

In this case, the Court of Appeals recognized that the respondent could be questioned about prior statements inconsistent with his trial testimony. The court therefore approved the “latter portion of the above quoted cross-examination. . . .” 610 P. 2d, at 421. But the Court of Appeals found that “the earlier portion of the exchange” concerned the “separate issu[e]” of the respondent’s “failure to tell arresting officers the same story he told the jury.” Ibid. In the court’s view, these questions were unconstitutional inquiries about postarrest silence. Thus, the Court of Appeals divided the cross-examination into two parts. It then applied Doyle to bar questions that concerned the respondent’s failure to tell the police the story he recounted at trial.

We do not believe that the cross-examination in this case can be bifurcated so neatly. The quoted colloquy, taken as a whole, does “not refe[r] to the [respondent’s] exercise of his right to remain silent; rather [it asks] the [respondent] why, if [his trial testimony] were true, he didn’t tell the officer that he stole the decedent’s car from the tire store parking lot instead of telling him that he took it from the street.” 58 Mich. App., at 381, 227 N. W. 2d, at 354. Any ambiguity in the prosecutor’s initial questioning was quickly resolved by explicit reference to Detective LeVanseler’s testimony, which the jury had heard only a few hours before. The questions were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement.

We conclude that Doyle does not apply to the facts of this case. Each of two inconsistent descriptions of events may be said to involve “silence” insofar as it omits facts included in the other version. But Doyle does not require any such formalistic understanding of “silence,” and we find no reason to adopt such a view in this case.

The judgment of the Court of Appeals is

Reversed.

Mr. Justice Brennan, with whom Mr. Justice Marshall joins, dissents and would affirm the judgment of the Court of Appeals for the reasons stated in its opinion.

       Neither the Court of Appeals nor the state courts addressed the question whether Doyle should be applied retroactively. Although the petitioner now claims that Doyle should be limited to prospective application, see Stovall v. Denno, 388 U. S. 293 (1967), there is no indication that this claim was raised in the courts below. Moreover, the respondent asserts that Doyle’s prohibition against use of postarrest silence was the law of the Sixth Circuit and of the State of Michigan long before his arrest. In view of our disposition of the merits of this controversy, we express no view on the retroactivity question.

       One defendant said nothing at all. The other asked arresting officers, “[W]hat’s this all about?” 426 U. S., at 615, n. 5. When told the reason for his arrest, he exclaimed “you got to be crazy,” or “I don’t know what you are talking about.” Id., at 622-623, n. 4 (SteveNS, J., dissenting). Both the Court and the dissent in Doyle analyzed the due process question as if both defendants had remained silent. The issue was said to involve cross-examination of a person who “does remain silent” after police inform him that he is legally entitled to do so. Id., at 620 (SteveNS, J., dissenting); see id., at 616-619; id., at 621, 622, 626 (SteveNS, J., dissenting). In any event, neither the inquiry nor the exclamation quoted above contradicted the defendant’s later trial testimony.


author: Mr. Justice White Mr. Justice Stevens,

text:
    ILLINOIS v. VITALE
    No. 78-1845.
    Argued January 8, 1980
    Decided June 19, 1980

      White, J., delivered the opinion of the Court, in which Burger, C. J., and BlacKMUN, Powell, and Rehnquist, JL, joined. Stevens, J., filed a dissenting opinion, in which Brennan, Stewart, and Marshall, JJ., joined, post, p. 421.

      James S. Veldman argued the cause for petitioner. With him on the briefs were William J. Scott, Attorney General of Illinois, Donald B. MacKay and Melbourne A. Noel, Jr., Assistant Attorneys General, Bernard Carey, and Marcia B. Orr.

      Lawrence G. Dirksen argued the cause and filed a brief for respondent.
   Mr. Justice White

delivered the opinion of the Court.

The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment prohibits the State of Illinois (State) from prosecuting for involuntary manslaughter the driver of an automobile involved in a fatal accident, who previously has been convicted for failing to reduce speed to avoid the collision.

I

On November 24, 1974, an automobile driven by respondent John Vitale, a juvenile, struck two small children. One of the children died almost immediately; the other died the following day. A police officer at the scene of the accident issued a trafile citation charging Vitale with failing to reduce speed to avoid an accident in violation of § 11-601 (a) of the Illinois Vehicle Code. Ill. Rev. Stat., ch. 951-2, § 11-601 (a) (1979). This statute provides in part that “[s]peed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.”

On December 23, 1974, Vitale appeared in the Circuit Court of Cook County, Ill., and entered a plea of not guilty to the charge of failing to reduce speed. After a trial without a jury, Vitale was convicted and sentenced to pay a fine of $15.

On the following day, December 24, 1974, a petition for adjudication of wardship was filed in the juvenile division of the Circuit Court of Cook County, charging Vitale with two counts of involuntary manslaughter. The petition, which was signed by the police officer who issued the traffic citation, alleged that Vitale “without lawful justification while recklessly driving a motor vehicle caused the death of” the two children killed in the November 20, 1974, accident. App. 2-4.

Vitale’s counsel filed a motion to dismiss on the grounds, among others, that the manslaughter prosecution was “viola-tive of statutory and/or constitutional double jeopardy,” id., at 7, because of Vitale’s previous conviction for failing to reduce speed to avoid the accident. The juvenile court found it unnecessary to reach a constitutional question because it held that the manslaughter prosecution was barred by Illinois statutes requiring, with certain nonpertinent exceptions, that all offenses based on the same conduct be prosecuted in a single -prosecution. Ill. Rev. Stat., eh. 38, §§ 3-3 and 3-4 (b)(1) (1979). The juvenile court dismissed the petition for adjudication of wardship and the State appealed. The Appellate Court of Illinois, First District, In re Vitale, 44 Ill. App. 3d 1030, 358 N. E. 2d 1288 (1976), affirmed the holding that the manslaughter prosecution was barred by the state compulsory joinder statutes. Ill. Rev. Stat., ch. 38, §§ 3-3 and 3-4 (b)(1) (1979).

The Supreme Court of Illinois, with two justices dissenting, affirmed on other grounds. In re Vitale, 71 Ill. 2d 229, 375 N. E. 2d 87 (1978). The court did not reach the state statutory question for it found “a more compelling reason why respondent cannot be prosecuted for the offense of involuntary manslaughter”: the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Due Process Clause of the Fourteenth Amendment. After analyzing the elements of each offense, the court held that because “the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter, ... for purposes of the double jeopardy clause, the greater offense is by definition the 'same’ as the lesser offense included within it.” Id., at 239, 375 N. E. 2d, at 91. Thus the court concluded that the manslaughter prosecution was barred by the Double Jeopardy Clause.

The dissenting justices argued that the manslaughter prosecution was not barred by the Double Jeopardy Clause because the homicide charge could be proved by showing one or more reckless acts other than the failure to reduce speed. Id., at 242, 251-253, 375 N. E. 2d, at 93, 96-97 (Underwood, J., joined by Ryan, J., dissenting).

On November 27, 1978, we granted the State’s petition for certiorari, vacated the judgment, and remanded the case to the Supreme Court of Illinois to consider whether its judgment was based upon federal or state constitutional-grounds. 439 U. S. 974 (1978). After the Supreme Court of Illinois, on remand, certified that its judgment was based upon federal constitutional grounds, we again granted a writ of certiorari. 444 U.S. 823 (1979).

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This constitutional guarantee is applicable to the States through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), and it applies not only in traditional criminal proceedings but also in the kind of juvenile proceedings Vitale faced. Breed v. Jones, 421 U. S. 519 (1975).

The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) “It protects against a second prosecution for the same offense after acquittal. [(2) I] t protects against a second prosecution for the same offense after conviction. [(3)] And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U. S. 711, 717 (1969) (footnotes omitted). Because Vitale asserts that his former conviction for failing to reduce speed bars his manslaughter prosecution, we are concerned with only the second of these three guarantees in the instant case. The sole question before us is whether the offense of failing to reduce speed to avoid an accident is the “same offense” for double jeopardy purposes as the manslaughter charges brought against Vitale.

In Brown v. Ohio, 432 U. S. 161 (1977), we stated the principal test for determining whether two offenses are the same for purposes of barring successsive prosecutions. Quoting from Blockburger v. United States, 284 U. S. 299, 304 (1932), which in turn relied on Gavieres v. United States, 220 U. S. 338, 342-343 (1911), we held that

“‘[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ ” 432 TJ. S., at 166.

We recognized that the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial. Thus we stated that if “ ‘each statute requires proof of an additional fact which the other does not,’ Morey v. Commonwealth, 108 Mass. 433, 434 (1871),” the offenses are not the same under the Blockburger test. 432 U. S., at 166 (emphasis supplied); Iannelli v. United States, 420 U. S. 770, 785, n. 17 (1975).

III

We accept, as we must, the Supreme Court of Illinois’ identification of the elements of the offenses involved here. Under Illinois law, involuntary manslaughter with a motor vehicle involves a homicide by the “reckless operation of a motor vehicle in a manner likely to cause death or great bodily harm.” In re Vitale, 71 Ill. 2d, at 239, 375 N. E. 2d, .at 91. The charge of failing to reduce speed on which respondent was convicted requires proof “that the defendant drove carelessly and failed to reduce speed to avoid colliding with a person.” Id., at 238, 375 N. E. 2d, at 91. The Illinois court, after specifying these elements, then stated that “the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter” and concluded, as a matter of federal law, that “the greater offense is by definition the 'same’ as the lesser offense included within it.” Id., at 239, 375 N. E. 2d, at 91.

The Illinois court relied upon our holding in Brown v. Ohio, supra, that a conviction for a lesser-included offense precludes later prosecution for the greater offense. There, Brown was first convicted of joyriding in violation of an Ohio statute under which it was a crime to “take, operate, or keep any motor vehicle without the consent of its owner.” He was then convicted under another statute of stealing the same motor vehicle. The Ohio courts had held that every element of the joyriding “is also an element of the crime of auto theft,” and that to prove auto theft one need prove in addition to joyriding only the intent permanently to deprive the owner of possession. Holding that the second prosecution was barred, by the Double Jeopardy Clause and the Fourteenth Amendment, we observed that “the prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft.” Id., at 167. But we also noted that “the prosecutor who has established auto theft necessarily has established joyriding as well.” Id., at 168.

Both observations were essential to the Brown holding. Had the State been able to prove auto theft, without also proving that the defendant took, operated, or kept the auto without the consent of the owner — if proof of the auto theft had not necessarily involved proof of joyriding — the successive prosecutions would not have been for the “same offense” within the meaning of the Double Jeopardy Clause.

Vitale does not dispute this proposition, but insists that the Illinois court fully satisfied Brown when it held that the lesser offense of failure to reduce speed “requires no proof beyond that which is necessary for a conviction of the greater, involuntary manslaughter.” It is clear enough from the opinion below that manslaughter by motor vehicle could be proved against Vitale by showing a death caused by his recklessly failing to slow his vehicle to avoid a collision with the victim. Proving manslaughter in this way would also prove careless failure to slow; nothing more would be needed to prove the latter offense, an offense for which Vitale has already been convicted.

The State, however, does not concede that its manslaughter charge will or must rest on proof of a reckless failure to slow; it insists that manslaughter by automobile need not involve any element of failing to reduce speed. The petition for wardship charging manslaughter alleged only that Vitale “without lawful justification, while recklessly driving a motor vehicle, caused [two] death [s]” in violation of the manslaughter statute. Further, the dissenting justices relied upon the absence of any showing that the manslaughter charge on which respondent had not been tried, would rest upon his reckless failure to reduce speed. Nor could it be known, in their view, what particular reckless acts might be relied upon to prove the homicide charge. The State agrees, and submits that because it is not necessary to prove a failure to slow to establish manslaughter, the rule of Brown v. Ohio does not bar its homicide case against Vitale.

The Illinois Supreme Court did not expressly address the contentions that manslaughter by automobile could be proved without also proving a careless failure to reduce speed, and we are reluctant to accept its rather cryptic remarks about the relationship between the two offenses involved here as an authoritative holding that under Illinois law proof of manslaughter by automobile would always involve a careless failure to reduce speed to avoid a collision.

Of course, any collision between two automobiles or between an automobile and a person involves a moving automobile and in that sense a “failure” to slow sufficiently to avoid the accident. But such a “failure” may not be reckless or even careless, if, when the danger arose, slowing as much as reasonably possible would not alone have avoided the accident. Yet, reckless driving causing death might still be proved if, for example, a driver who had not been paying attention could have avoided the accident at the last second, had he been paying attention, by simply swerving his car. The point is that if manslaughter by automobile does not always entail proof of a failure to slow, then the two offenses are not the “same” under the Blockburger test. The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution.

IV

If, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter by automobile, then the two offenses are the “same” under Blockburger and Vitale’s trial on the latter charge would constitute double jeopardy under Brown v. Ohio. In any event, it may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vitale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial under Brown and our later decision in Harris v. Oklahoma, 433 U. S. 682 (1977).

In Harris, we held, without dissent, that a defendant’s conviction for felony murder based on a killing in the course of an armed robbery barred a subsequent prosecution against the same defendant for the robbery. The Oklahoma felony-murder statute on its face did not require proof of a robbery to establish felony murder; other felonies could underlie a felony-murder prosecution. But for the purposes of the Double Jeopardy Clause, we did not consider the crime generally described as felony murder as a separate offense distinct from its various elements. Rather, we treated a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-included offense. The State conceded that the robbery for which petitioner had been indicted was in fact the underlying felony, all elements of which had been proved in the murder prosecution. We held the subsequent robbery prosecution barred under the Double Jeopardy Clause, since under In re Nielsen, 131 U. S. 176 (1889), a person who has been convicted of a crime having several elements included in it may not subsequently be tried for a lesser-included offense — an offense consisting solely of one or more of the elements of the crime for which he has already been convicted. Under Brown, the reverse is also true; a conviction on a lesser-included offense bars subsequent trial on the greater offense.

By analogy, if in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a substantial claim of double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution.

V

Because of our doubts about the relationship under Illinois law between the crimes of manslaughter and a careless failure to reduce speed to avoid an accident, and because the reckless act or acts the State will rely on to prove manslaughter are still unknown, we vacate the judgment of the Illinois Supreme Court and remand the case to that court for further proceedings not inconsistent with this opinion.

So ordered.

Mr. Justice Stevens,

with whom Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall join, dissenting.

The controlling issue in this case is whether respondent’s failure to reduce speed to avoid a collision, in violation of § 11-601 (a) of the Illinois Motor Vehicle Code, was a lesser offense included within the greater offense of killing a person by the reckless “driving of a motor vehicle,” in violation of § 9-3 (b) of the Illinois Criminal Code. The Illinois Supreme Court held that it was and that, because respondent had already been convicted on the lesser charge, the State was barred by the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment, from prosecuting him on the greater charge.

There are two separate reasons, each of which is sufficient in itself, for affirming the judgment of the Illinois Supreme Court. - First, after applying the test set forth in Brown v. Ohio, 432 U. S. 161, the Illinois Supreme Court made a finding that failing to reduce speed to avoid a collision is a lesser-included offense of reckless homicide as a matter of state law. This Court clearly has a duty to respect that finding. Second, even if the dissenting members of the Illinois Supreme Court were correct in their view that, as a matter of state law, the traffic offense is not necessarily a lesser-included offense in every reckless homicide prosecution, the Double Jeopardy Clause bars the homicide prosecution under the particular facts of this case. For, even if the State intended to rely on evidence other than respondent’s failure to reduce speed to establish the element of reckless driving necessary for a homicide conviction, the prosecutor’s failure to apprise the respondent and the court of such a theory at some point in the lengthy proceedings on the double jeopardy issue should bar the second trial in this case.

I

Relying on Blockburger v. United States, 284 U. S. 299, the Court holds that the question the Illinois Supreme Court should have addressed in this case was whether proof of reckless homicide by vehicle will always, in each and every case, establish the defendant’s guilt of the traffic offense as well. If not, the Court states that the traffic offense is not necessarily the “same offense” for double jeopardy purposes and therefore the second prosecution may not be barred by the Double Jeopardy Clause. Ante, at 419. The Court then goes on to discuss the position of the dissenting justices in the Illinois Supreme Court that it is theoretically possible for an Illinois prosecutor to prove a charge of reckless homicide by vehicle without proving a failure to reduce speed in order to avoid a collision. Because it finds the majority’s response to this argument “cryptic,” the Court refuses to accept the Illinois court’s clear determination that the traffic offense is a lesser-included offense of reckless homicide; instead, it reverses and remands for a new determination as to whether “under Illinois law proof of manslaughter by automobile would always involve a careless failure to reduce speed to avoid a collision.”

I cannot agree that this is an appropriate disposition. As the Court itself recognizes, it is not the province of this or any other federal court to tell the State of Illinois what is or is not a lesser-included offense under state law. To the extent that this Court has any role at all, it is to ensure that the States apply the proper analytic framework insofar as they rely on the Double Jeopardy Clause of the Federal Constitution.-'Unlike the Court, I have no doubt that in this case the Illinois Supreme Court did apply the proper test.

As the dissenting justices in the Illinois Supreme Court pointed out at some length, the Illinois courts are hardly unfamiliar with the Blockburger test, having consistently applied it for many years in determining whether two offenses are the same for purposes of either the Double Jeopardy Clause or the State’s own compulsory joinder statute. In re Vitale, 71 Ill. 2d 229, 244-245, 375 N. E. 2d 87, 93-94 (1978). In this case the majority of the Illinois court did not purport to deviate from that test. On the contrary, it relied heavily on this Court’s opinion in Brown v. Ohio, supra, which in turn relied upon Blockburger.

Thus, after examining the statutory definitions of the two crimes at issue in this case, without reference to the particular facts of this case, the Illinois Supreme Court concluded:

“As is usually the situation between greater and lesser included offenses, the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter. Accordingly, for purposes of the double jeopardy clause, the greater offense is by definition the ‘same’ as the lesser offense included within it.” 71 Ill. 2d, at 239, 375 N. E. 2d, at 91.

In so holding, the court made the same finding as this Court did in Brown v. Ohio:

“Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by that court, constitute ‘the same statutory offense’ within the meaning of the Double Jeopardy Clause. App. 23. For it is clearly not the case that ‘each [statute] requires proof of a fact which the other does not.’ 284 U. S., at 304. As is invariably true of a greater and lesser included offense, the lesser offense — joyriding—requires no proof beyond that which is required for conviction of the greater — auto theft. The greater offense is therefore by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it.” 432 U. S., at 168.

Having made the finding required by Brown v. Ohio, based on its interpretation of its own law, the Illinois Supreme Court should not now be required to go through the process all over again simply to assure this Court that it really meant what it plainly said.

II

In Part IV of its opinion the Court states that, even if the Illinois Supreme Court should hold on remand that failure to reduce speed is not always a lesser-included offense as a matter of state law, respondent will still have a “substantial” double jeopardy claim if the State finds it necessary to rely on his failure to reduce speed in order to sustain its manslaughter case. In my opinion such a claim would not merely be “substantial”; it would be dispositive.

In Harris v. Oklahoma, 433 U. S. 682, we held that a conviction on a felony-murder charge barred a subsequent prosecution for robbery, where the robbery had been used to establish the requisite intent on the murder charge. Cf. Whalen v. United States, 445 U. S. 684. Since it was theoretically possible that a different felony could have supported the murder charge, such a result may not have been required by a literal application of the Blockburger test, see Whalen v. United States, supra, at 708-711 (Rehnquist, J., dissenting) . However, the entire Court agreed that it was required by the Double Jeopardy Clause. In this case, it is equally clear that the State could not use respondent's failure to reduce speed to avoid a collision as the reckless act necessary to establish reckless homicide by vehicle, even if theoretically his recklessness could be proved in some other way.

Throughout the five years that this case has been in litigation, the State has apparently not seen fit to reveal the basis of its homicide prosecution. The Court does not view this omission as an important one. On the contrary, its opinion implies that the State may proceed to trial before a deter-. mination is made on respondent’s double jeopardy claim. But surely such a procedure is inconsistent with the Double Jeopardy Clause, which was specifically designed to protect the citizen from multiple trials. The vital interest in avoiding an unlawful second trial led the Court in Abney v. United States, 431 U. S. 651, to allow an appeal in advance of trial in order to assure the defendant that the substance of his constitutional right to be protected against double jeopardy would not be lost before his plea could be vindicated. In that case the Court emphasized that “the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense.” Id., at 660-661 (emphasis in original). Continuing, the Court stated:

“Because of this focus on the ‘risk’ of conviction, the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense. It thus protects interests wholly unrelated to the propriety of any subsequent conviction. Mr. Justice Black aptly described the purpose of the Clause:
“ 'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ Green [v. United States, 355 U. S. 184,] 187-188.
. . [I]f a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.” Id., at 661-662. (Emphasis in original.)

If a defendant is entitled to have an appellate court rule on his double jeopardy claim in advance of trial, he is surely entitled to a definitive ruling by the trial court in advance of trial. Since the State has not provided the respondent with notice of any basis for the prosecution that does not depend upon proving, for the second time, a careless failure to reduce speed, I would not require this respondent to stand trial again.

I respectfully dissent.

       Section 11-601 (a) of the Illinois Vehicle Code, Ill. Rev. Stat., ch. 95%, §11-601 (a) (1979), provides:
      “No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.”

       With respect to the traffic offense, the record contains a copy of the complaint, which charged that respondent on “Wednesday, November 20, 1974, 12:29 p. m., did then and there operate a certain motor vehicle upon a public highway of this State, to wit 170th and Ingleside in Thornton, situated in Cook County, Illinois, and did then and there violate section 11-601 (a) of the Illinois Vehicle Code by failure to reduce speed to avoid an accident.” (Record 66-67.) Notations on the back of thé complaint indicate that Vitale pleaded not guilty, waived a jury trial, was found guilty, and fined.

       Failing to reduce speed to avoid an accident is punishable by no more than 30 days in jail or by a fine of no more than $500. Ill. Rev. Stat., ch. 95%, § 16-104 (a) (1975), and ch. 38, §§1005-9-1 and 1005-8-3 (1979).

       At the time Vitale was prosecuted, § 9-3 of the Illinois Criminal Code, Ill. Rev. Stat., ch. 38, § 9-3 (1973), provided:
      “(a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, (b) If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless homicide.”

       Section 3-3 of the Illinois Criminal Code, Ill. Rev. Stat., ch. 38, § 3-3 (1979), provides:
      “(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense, (b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act. (c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges be tried separately.”
      Section 3-4 (b) of the Illinois Criminal Code, Ill. Rev. Stat., ch. 38, §3-4 (b) (1979), provides in pertinent part:

        “A prosecution is barred if the defendant was formerly prosecuted for a different offense, ... if such former prosecution: (1) Resulted in either a conviction or an acquittal, and the subsequent prosecution . . . was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code (unless the court ordered a separate trial of such charge). . .
      The juvenile court held that because the prosecution knew at the time the traffic offense was prosecuted that the automobile accident had resulted in the deaths that were the basis of the manslaughter charges, § 3-3 required that the traffic offense and the manslaughter charges be prosecuted in a single prosecution. The court therefore concluded that the manslaughter prosecution was barred by § 3-4 (b) (1).

       In Iannelli v. United States, 420 U. S., at 785, n. 17, we stated: “[T]he Court’s application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.”

       “The petition for wardship may have been based on Vitale’s acts in permitting his attention to be diverted while driving at a high rate of speed, failing to appropriately maintain the vehicle’s braking system, failing to note the seven school zone and speed warning signs, initially raising the speed of his auto to a dangerous level, or by disobeying the commands of the crossing guard. While we do not now know which of that series of acts the State intended to rely on at trial, one certainly cannot now say that it would rely solely upon Vitale’s failure to reduce speed to the exclusion of his other misconduct.” In re Vitale, 71 Ill. 2d 229, 251, 375 N. E. 2d 87, 97 (1978) (Underwood, J., dissenting).
      The police report concerning Vitale’s accident noted that the brakes on the automobile were defective and that there had been a school crossing guard and a stop sign at the intersection where the accident occurred. (Record 29, 30.)

       We recognized in Brown v. Ohio, 432 U. S., at 169, n. 7 that “[a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.” This exception is not applicable here because the trial court found that the prosecution was aware that Vitale’s accident had resulted in two deaths at the time he was prosecuted for failing to reduce speed.

       The Oklahoma felony-murder statute under which Harris was convicted, Okla. Stat., Tit. 21, § 701 (3) (1971), provided that homicide is murder “[w]hen perpetrated without any design to elfect death by a person engaged in the commission of any felony.”

       We note also that the Illinois Supreme Court did not reach the question whether the lower Illinois courts were correct in dismissing the manslaughter case under the State’s compulsory joinder statute.

       Illinois Rev. Stat., eh. 95%, § 11-601 (a) (1979), provides:
      “No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.’’ (Emphasis supplied.)

       “If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless homicide." Ill. Rev. Stat., ch. 38, § 9-3 (b) (1973).

       See the discussion of Part IV of the Court’s opinion, infra, at 426.

       “The Illinois Supreme Court did not expressly address the contentions that manslaughter by automobile could be proved without also proving a careless failure to reduce speed, and we are reluctant to accept its rather cryptic remarks about the relationship between the two offenses involved here as an authoritative holding that under Illinois law proof of manslaughter by automobile would always involve a careless failure to reduce speed to avoid a collision.” Ante, at 419.

       Despite its apparent agreement with the dissenters’ reading of the Illinois statutes, see ibid., the Court does not hold that the Illinois Supreme Court is foreclosed from concluding on remand that failure to reduce speed is a lesser-included offense of reckless homicide by vehicle. On the contrary, the Court states:
      “If, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter by automobile, then the two offenses are the 'same’ under Blockburger and Vitale’s trial on the latter charge would constitute double jeopardy under Brown v. Ohio." Ante, at 419-420.
      See also Brown v. Ohio, 432 U. S. 161, 167, where the Court reiterated that state courts “ ‘have the final authority to interpret . . . that State’s legislation.’ Garner v. Louisiana, 368 U. S. 157, 169 (1961),” and thus accepted as “authoritative” the Ohio courts’ definition of the elements of the two offenses.