United States v. Dixon

Justice White,

with whom

Justice Stevens joins, and with whom Justice Souter joins as to Part I, concurring in the judgment in part and dissenting in part.

I am convinced that the Double Jeopardy Clause bars prosecution for an offense if the defendant already has been held in contempt for its commission. Therefore, I agree with the Court’s conclusion that both Dixon’s prosecution for possession with intent to distribute cocaine and Foster’s prosecution for simple assault were prohibited. In my view, however, Justice Scalia’s opinion gives short shrift to the arguments raised by the United States. I also am uncomfortable with the reasoning underlying this holding, in particular the application of Blockburger v. United States, 284 U. S. 299 (1932), to the facts of this case, a reasoning that betrays an overly technical interpretation of the Constitution. As a result, I concur only in the judgment in Part III-A.

The mischief in the Court’s approach is far more apparent in the second portion of today’s decision. Constrained by its narrow reading of the Double Jeopardy Clause, it asserts that the fate of Foster’s remaining counts depends on Grady v. Corbin, 495 U. S. 508 (1990), which the Court then chooses *723to overrule. Ante, at 704. I do not agree. Resolution of the question presented by Foster’s case no more requires reliance on Grady than it points to reasons for reversing that decision. Rather, as I construe the Clause, double jeopardy principles compel equal treatment of all of Foster’s counts. I dissent from the Court’s holding to the contrary. Inasmuch as Grady has been dragged into this case, however, I agree with Justice Blackmun and Justice Souter that it should not be overruled. Post, at 741, 744. From this aspect of the Court’s opinion as well, I dissent.

I

The chief issue before us is whether the Double Jeopardy Clause applies at all to cases such as these. Justice & alia finds that it applies, but does so in conclusory fashion, without dealing adequately with either the Government’s arguments or the practical consequences of today’s decision. Both, in my view, are worthy of more.

A

The position of the United States is that, for the purpose of applying the Double Jeopardy Clause, a charge of criminal contempt for engaging in conduct that is proscribed by court order and that is in turn forbidden by the criminal code is an offense separate from the statutory crime. The United States begins by pointing to prior decisions of this Court to support its view. Heavy reliance is placed on In re Debs, 158 U. S. 564 (1895), but, as the majority notes, see ante, at 699, the relevant portion of the opinion is dictum — and seriously weakened dictum at that. See Bloom v. Illinois, 391 U. S. 194 (1968).

The Government also relies on two cases involving Congress’ power to punish by contempt a witness who refuses to testify before it, In re Chapman, 166 U. S. 661 (1897), and Jurney v. MacCracken, 294 U. S. 125 (1935). Both cases appear to lean in the Government’s direction, but neither is conclu*724sive. First, the statements were dicta. The claim in Jurney and Chapman was that the power to punish for contempt and the power to punish for commission of the statutory offense could not coexist side by side. But in neither were both powers exercised; in neither case did the defendant face a realistic threat of twice being put in jeopardy. In fact, as the majority notes, ante, at 698-699, n. 2, the Court expressed doubt that consecutive prosecutions would be brought in such circumstances. See Chapman, supra, at 672.

Second, both decisions concern the power to deal with acts interfering directly with the performance of legislative functions, a power to which not all constitutional restraints on the exercise of judiciary authority apply. See Marshall v. Gordon, 243 U. S. 521, 547 (1917). The point, spelled out in Marshall, is this: In a case such as Chapman, where the contempt proceeding need not “resor[t] to the modes of trial required by constitutional limitations ... for substantive offenses under the criminal law,” 243 U. S., at 543, so too will it escape the prohibitions of the Double Jeopardy Clause. If, however, it is of such a character as to be subject to these constitutional restrictions, “those things which, as pointed out in In re Chapman . . . , were distinct and did not therefore the one frustrate the other — the implied legislative authority to compel the giving of testimony and the right criminally to punish for failure to do so — would become one and the same and the exercise of one would therefore be the exertion of, and the exhausting of the right to resort to, the other.” Id., at 547.

Marshall thus suggests that application of the Double Jeopardy Clause, like that of other constitutional guarantees, is a function of the type of contempt proceeding at issue. Chapman, it follows, cannot be said to control this case. Rather, whatever application Chapman (and, by implication, Jurney) might have in the context of judicial contempt is limited to cases of in-court contempts that constitute direct obstructions of the judicial process and for which summary *725proceedings remain acceptable. Cf. Marshall, supra, at 543. Neither Dixon nor Foster is such a case.¹

The United States’ second, more powerful, argument is that contempt and the underlying substantive crime constitute two separate offenses for they involve injuries to two distinct interests, the one the interest of the court in preserving its authority, the other the public’s interest in being protected from harmful conduct. This position finds support in Justice Blackmun’s partial dissent, see post, at 743, and is bolstered by reference to numerous decisions acknowledging the importance and role of the courts’ contempt power. See, e. g., Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787, 800 (1987); Michaelson v. United States ex rel. Chicago, St. P., M. & O. R. Co., 266 U. S. 42, 65 (1924); Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 450 (1911). It cannot lightly be dismissed. Indeed, we recognized in Young, supra, that contempt “proceedings are not intended to punish conduct proscribed as harmful by the general criminal laws. Rather, they are designed to serve the limited purpose of vindicating the authority of the court. In punishing contempt, the Judiciary is sanctioning conduct that *726violates specific duties imposed by the court itself, arising directly from the parties’ participation in judicial proceedings.” Id., at 800.

The fact that two criminal prohibitions promote different interests may be indicative of legislative intent and, to that extent, important in deciding whether cumulative punishments imposed in a single prosecution violate the Double Jeopardy Clause. See Missouri v. Hunter, 459 U. S. 359, 366-368 (1983). But the cases decided today involve instances of successive prosecutions in which the interests of the defendant are of paramount concern. To subject an individual to repeated prosecutions exposes him to “embarrassment, expense and ordeal,” Green v. United States, 355 U. S. 184, 187 (1957), violates principles of finality, United States v. Wilson, 420 U. S. 332, 343 (1975), and increases the risk of a mistaken conviction. That one of the punishments is designed to protect the court rather than the public is, in this regard, of scant comfort to the defendant.²

It is true that the Court has not always given primacy to the defendant’s interest. In particular, the Government directs attention to the dual sovereignty doctrine under which, “[w]hen a defendant in a single act violates the ‘peace *727and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offences.’” Heath v. Alabama, 474 U. S. 82, 88 (1985) (quoting United States v. Lanza, 260 U.S. 377, 382 (1922)). See also United States v. Wheeler, 435 U.S. 313, 317 (1978); Moore v. Illinois, 14 How. 13, 19 (1852).

But the dual sovereignty doctrine is limited, by its own terms, to cases where “the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns.” Heath, 474 U. S., at 88. “This determination,” we explained, “turns on whether the two entities draw their authority to punish the offender from distinct sources of power,” ibid., not on whether they are pursuing separate interests. Indeed, the Court has rejected the United States’ precise argument in the past, perhaps nowhere more resolutely than in Grafton v. United States, 206 U. S. 333 (1907). In that case, the defendant, a private in the United States Army stationed in the Philippines, was tried before a general court-martial for homicide. Subsequent to Grafton’s acquittal, the United States filed a criminal complaint in civil court based on the same acts. Seeking to discredit the view that the Double Jeopardy Clause would be violated by this subsequent prosecution, the Government asserted that “Grafton committed two distinct offenses — one against military law and discipline, the other against the civil law which may prescribe the punishment for crimes against organized society by whomsoever those crimes are committed.” Id., at 351. To which the Court responded:

“Congress, by express constitutional provision, has the power to prescribe rules for the government and regulation of the Army, but those rules must be interpreted in connection with the prohibition against a man’s being put twice in jeopardy for the same offense.... If, therefore, a person be tried for an offense in a tribunal deriv*728ing its jurisdiction and authority from the United Státes and is acquitted or convicted, he cannot again be tried for the same offense in another tribunal deriving its jurisdiction and authority from the United States. . . . [T]he same acts constituting a crime against the United States cannot, after the acquittal or conviction of the accused in a court of competent jurisdiction, be made the basis of a second trial of the accused for that crime in the same or in another court, civil or military, of the same government. Congress has chosen, in its discretion, to confer upon general courts-martial authority to try an officer or soldier for any crime, not capital, committed by him in the territory in which he is serving. When that was done the judgment of such military court was placed upon the same level as the judgments of other tribunals when the inquiry arises whether an accused was, in virtue of that judgment, put in jeopardy of life or limb.” Id., at 352.

Grafton, and the principle it embodies, are controlling. The Superior Court and the District of Columbia Court of Appeals were created by Congress, pursuant to its power under Article I of the Constitution. See Palmore v. United States, 411 U. S. 389 (1973). In addition, the specific power exercised by the courts in this case were bestowed by the Legislature. See ante, at 691. As we observed in United States v. Providence Journal Co., 485 U. S. 693 (1988), “[t]he fact that the allegedly criminal conduct concerns a violation of a court order instead of common law or a statutory prohibition does not render the prosecution any less an exercise of the sovereign power of the United States.” Id., at 700. It is past dispute, in other words, that “the two tribunals that tried the accused exert all their powers under and by the authority of the same government — that of the United States,” Grafton, supra, at 355, and, therefore, that the dual *729sovereignty doctrine poses no problem. Cf. Heath, supra, at 88.³

B

Both the Government and amici submit that application of the Double Jeopardy Clause in this context carries grave practical consequences. See also post, at 742-743 (Black-MUN, J., concurring in judgment in part and dissenting in part). It would, it is argued, cripple the power to enforce court orders or, alternatively, allow individuals to escape serious punishment for statutory criminal offenses. The argument, an offshoot of the principle of necessity familiar to the law of contempt, see, e. g., United States v. Wilson, 421 U. S. 309, 315-318 (1975), is that, just as we have relaxed certain procedural requirements in contempt proceedings where time is of the essence and an immediate remedy is needed to “prevent a breakdown of the proceedings,” id., at 319, so too should we exclude double jeopardy protections from this setting lest we do damage to the courts’ authority. In other words, “[t]he ability to punish disobedience to judicial orders [being] regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority,” Young, 481 U. S., at 796, its exercise should not be inhibited by fear that it might immunize defendants from subsequent criminal prosecution.

Adherence to double jeopardy principles in this context, however, will not seriously deter the courts from taking appropriate steps to ensure that their authority is not flouted. *730Courts remain free to hold transgressors in. contempt and punish them as they see fit. The Government counters that this possibility will prove to be either illusory — if the prosecuting authority declines to initiate proceedings out of fear that they could jeopardize more substantial punishment for the underlying crime — or too costly — if the prosecuting authority, the risk notwithstanding, chooses to go forward. But it is not fanciful to imagine that judges and prosecutors will select a third option, which is to ensure, where necessary or advisable, that the contempt and the substantive charge be tried at the same time, in which case the double jeopardy issue “would be limited to ensuring that the total punishment did not exceed that authorized by the legislature.” United States v. Halper, 490 U. S. 435, 450 (1989). Indeed, the Court recently exercised its supervisory power to suggest that a federal court “ordinarily should first request the appropriate prosecuting authority to prosecute contempt actions, and should appoint a private prosecutor only if that request is denied.” Young, 481 U. S., at 801. Just as “[i]n practice, courts can reasonably expect that the public prosecutor will accept the responsibility for prosecution,” ibid., so too can the public prosecutor reasonably anticipate that the court will agree to some delay if needed to bring the two actions together.

Against this backdrop, the appeal of the principle of necessity loses much of its force. Ultimately, the urgency of punishing such contempt violations is no less, but by the same token no more, than that of punishing violations of criminal laws of general application — in which case, we simply do not question the defendant’s right to the “protections worked out carefully over the years and deemed fundamental to our system of justice,” Bloom v. Illinois, 391 U. S., at 208, including the protection of the Double Jeopardy Clause. “Perhaps to some extent we sacrifice efficiency, expedition, and economy, but the choice ... has been made, and retained, in the Consti*731tution. We see no sound reason in logic or policy not to apply it in the area of criminal contempt.” Id., at 209 ⁴

Dixon aptly illustrates these points. In that case, the motion requesting modification of the conditions of Dixon’s release was filed by the Government, the same entity responsible for prosecution of the drug offense. Indeed, in so doing it relied explicitly on the defendant’s indictment on the cocaine charge. 598 A. 2d 724, 728 (D. C. 1991). Logically, any problem of coordination or of advance notice of the impending prosecution for the substantive offense was at most minimal. Nor, aside from the legitimate desire to punish all offenders swiftly, does there appear to have been any real need to hold Dixon in contempt immediately, without waiting for the second trial. By way of comparison, at the time of his drug offense Dixon was awaiting trial for second-degree murder, a charge that had been brought some 11 months earlier.

Besides, in the situation where a person has violated a condition of release, there generally exist a number of alternatives under which the defendant’s right against being put twice in jeopardy for the same offense could be safeguarded, while ensuring that disregard of the court’s authority not go unsanctioned. To the extent that they are exercised with due regard for the Constitution, such options might include modification of release conditions or revocation of bail and detention.⁵ As respondents acknowledge, these solutions *732would raise no double jeopardy problem. See Tr. of Oral Arg. 30.

More difficult to deal with are the circumstances surrounding Foster’s defiance of the court order. Realization of the scope of domestic violence — according to the American Medical Association (AMA), “the single largest cause of injury to women,” AMA, Five Issues in American Health 5 (1991)— has come with difficulty, and it has come late.

There no doubt are time delays in the operation of the criminal justice system that are frustrating; they even can be perilous when an individual is left exposed to a defendant’s potential violence. That is true in the domestic context; it is true elsewhere as well. Resort to more expedient methods therefore is appealing, and in many cases permissible. Under today’s decision, for instance, police officers retain the power to arrest for violation of a civil protection order. Where the offense so warrants, judges can haul the assailant before the court, charge him with criminal contempt, and hold him without bail. See United States v. Salerno, 481 U. S. 739 (1987); United States v. Edwards, 430 A. 2d 1321 (D. C. 1981). Also, cooperation between the government and parties bringing contempt proceedings can be achieved. The various actors might not have thought such cooperation necessary in the past; after today’s decision, I suspect they will.⁶

*733Victims, understandably, would prefer to have access to a proceeding in which swift and expeditious punishment could be inflicted for that offense without prejudice to a subsequent full-blown criminal trial. The justification for such a system, however, has nothing to do with preventing disruption of a court’s proceedings or even with vindicating its authority. While, under the principle of necessity, contempt proceedings have been exempted from some constitutional constraints, this was done strictly “to secure judicial authority from obstruction in the performance of its duties to the end that means appropriate for the preservation and enforcement of the Constitution may be secured.” Ex parte Hudgings, 249 U. S. 378, 383 (1919). No such end being invoked here, the principle of necessity cannot be summoned for the sole purpose of letting contempt proceedings achieve what, under our Constitution, other criminal trials cannot.

II

If, as the Court agrees, the Double Jeopardy Clause cannot be ignored in this context, my view is that the subsequent prosecutions in both Dixon and Foster were impermissible as to all counts. I reach this conclusion because the offenses at issue in the contempt proceedings were either identical to, or lesser included offenses of, those charged in the subsequent prosecutions. Justice Scalia’s contrary conclusion as to some of Foster’s counts, which he reaches by exclusive focus on the formal elements of the relevant crimes, is divorced from the purposes of the constitutional provision he purports to apply. Moreover, the results to which this approach would lead are indefensible.

A

The contempt orders in Foster and Dixon referred in one case to the District’s laws regarding assaults and threats, and, in the other, to the criminal code in its entirety. The prohibitions imposed by the court orders, in other words, *734duplicated those already in place by virtue of the criminal statutes. Aside from differences in the sanctions inflicted, the distinction between being punished for violation of the criminal laws and being punished for violation of the court orders, therefore, is simply this: Whereas in the former case “the entire population” is subject to prosecution, in the latter such authority extends only to “those particular persons whose legal obligations result from their earlier participation in proceedings before the court.” Young, 481 U. S., at 800, n. 10. But the offenses that are to be sanctioned in either proceeding must be similar, since the contempt orders incorporated, in full or in part, the criminal code.⁷

*735Thus, in this case, the offense for which Dixon was held in contempt was possession with intent to distribute drugs. Since he previously had been indicted for precisely the same offense, the double jeopardy bar should apply. In Foster’s contempt proceeding, he was acquitted with respect to threats allegedly made on November 12, 1987, and March 26 and May 17, 1988. He was found in contempt of court for having committed the following offenses: Assaulting his wife on November 6, 1987, and May 21, 1988, and threatening her on September 17, 1987. 598 A. 2d, at 727; App. 42. The subsequent indictment charged Foster with simple assault on November 6,1987 (Count I); threatening to injure another on or about November 12, 1987, and March 26 and May 17, 1988 (Counts II, III, and IV); and assault with intent to kill on or about May 21, 1988 (Count V). All of the offenses for which Foster was either convicted or acquitted in the contempt proceeding were similar to, or lesser included offenses of, those charged in the subsequent indictment. Because “the Fifth Amendment forbids successive prosecution ... for a greater and lesser included offense,” Brown v. Ohio, 432 U. S. 161, 169 (1977); see also Grafton, 206 U. S., at 349-351, the second set of trials should be barred in their entirety.

B

Professing strict adherence to Blockburger’s so-called “same-elements” test, see Blockburger v. United States, 284 U. S. 299 (1932), Justice Scalia opts for a more circuitous approach. The elements of the crime of contempt, he reasons, in this instance are (1) the existence and knowledge of a court, or CPO; and (2) commission of the underlying substantive offense. See ante, at 701. Where the criminal conduct that forms the basis of the contempt order is identical to that charged in the subsequent trial, Justice Scalia *736concludes, Blockburger forbids retrial. All elements of Foster’s simple assault offense being included in his previous contempt offense, prosecution on that ground is precluded. Ante, at 700. The same is true of Dixon’s drug offense. Ibid. I agree with this conclusion, though would reach it rather differently: Because in a successive prosecution case the risk is that a person will have to defend himself more than once against the same charge, I would have put to the side the CPO (which, as it were, triggered the court’s authority to punish the defendant for acts already punishable under the criminal laws) and compared the substantive offenses of which respondents stood accused in both prosecutions.⁸

The significance of our disaccord is far more manifest where an element is added to the second prosecution. Under Justice Scalia’s view, the double jeopardy barrier is then removed because each offense demands proof of an element the other does not: Foster’s conviction for contempt requires proof of the existence and knowledge of a CPO, which conviction for assault with intent to kill does not; his conviction for assault with intent to kill requires proof of an intent to kill, which the contempt conviction did not. Ante, at 701. Finally, though he was acquitted in the contempt proceedings with respect to the alleged November 12, March 26, and May 17 threats, his conviction under the threat charge in the subsequent trial required the additional proof that the threat be to kidnap, to inflict bodily injury, or to damage property. Ante, at 702. As to these counts, and absent any collateral-estoppel problem, see ante, at 712, *737n. 17, Justice Scalia finds that the Constitution does not prohibit retrial.

The distinction drawn by Justice Scalia is predicated on a reading of the Double Jeopardy Clause that is abstracted from the purposes the constitutional provision is designed to promote. To focus on the statutory elements of a crime makes sense where cumulative punishment is at stake, for there the aim simply is to uncover legislative intent. The Blockburger inquiry, accordingly, serves as a means to determine this intent, as our cases have recognized. See Missouri v. Hunter, 459 U. S., at 368. But, as Justice Souter shows, adherence to legislative will has very little to do with the important interests advanced by double jeopardy safeguards against successive prosecutions. Post, at 744. The central purpose of the Double Jeopardy Clause being to protect against vexatious multiple prosecutions, see Hunter, supra, at 365; United States v. Wilson, 420 U. S., at 343, these interests go well beyond the prevention of unauthorized punishment. The same-elements test is an inadequate safeguard, for it leaves the constitutional guarantee at the mercy of a legislature’s decision to modify statutory definitions. Significantly, therefore, this Court has applied an inflexible version of the same-elements test only once, in 1911, in a successive prosecution case, see Gavieres v. United States, 220 U. S. 338 (1911), and has since noted that “[t]he Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense.” Brown, 432 U. S., at 166-167, n. 6. Rather, “[e]ven if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first.” Ibid.

Take the example of Count V in Foster: For all intents and purposes, the offense for which he was convicted in the contempt proceeding was his assault against his wife. The *738majority, its eyes fixed on the rigid elements test, would have his fate turn on whether his subsequent prosecution charges “simple assault” or “assault with intent to kill.” Yet, because the crime of “simple assault” is included within the crime of “assault with intent to kill,” the reasons that bar retrial under the first hypothesis are equally present under the second: These include principles of finality, see United States v. Wilson, supra, at 343; protecting Foster from “embarrassment” and “expense,” Green v. United States, 355 U. S., at 187; and preventing the Government from gradually fine-tuning its strategy, thereby minimizing exposure to a mistaken conviction, id., at 188. See also Tibbs v. Florida, 457 U. S. 31, 41 (1982); Arizona v. Washington, 434 U. S. 497, 503-504 (1978); supra, at 724.

Analysis of the threat charges (Counts II-IV) makes the point more clearly still. In the contempt proceeding, it will be recalled, Foster was acquitted of the — arguably lesser included — offense of threatening “in any manner.” As we have stated:

“[T]he law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal might have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty.’” United States v. Scott, 437 U. S. 82, 91 (1978) (citation omitted).

To allow the Government to proceed on the threat counts would present precisely the risk of erroneous conviction the Clause seeks to avoid. That the prosecution had to establish the existence of the CPO in the first trial, in short, does not in any way modify the prejudice potentially caused to a defendant by consecutive trials.

To respond, as the majority appears to do, that concerns relating to the defendant’s interests against repeat trials are *739“unjustified” because prosecutors “have little to gain and much to lose” from bringing successive prosecutions and because “the Government must be deterred from abusive, repeated prosecutions of a single offender for similar offenses by the sheer press of other demands upon prosecutorial and judicial resources,” ante, at 710-711, n. 15, is to get things exactly backwards. The majority’s prophesies might be correct, and double jeopardy might be a problem that will simply take care of itself. Not so, however, according to the Constitution, whose firm prohibition against double jeopardy cannot be satisfied by wishful thinking.

C

Further consequences — at once illogical and harmful— flow from Justice Scalia’s approach.⁹ I turn for illustration once more to Foster’s assault case. In his second prosecution, the Government brought charges of assault with intent to kill. In the District of Columbia, Superior Court Criminal Rule 31(c) — which faithfully mirrors its federal counterpart, Federal Rule of Criminal Procedure 31(c) — provides that a “defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.” This provision has been construed to require the jury to determine guilt of all lesser included offenses. See Simmons v. United States, 554 A. 2d 1167 (D. C. 1989). Specifically, “[a] defendant is entitled to a lesser-included offense instruction when (1) all elements of the lesser offense are included within the offense charged, and (2) there is a sufficient evidentiary basis for the lesser charge.” Rease v. United States, 403 A. 2d 322, 328 (D. C. 1979) (citations omitted).

Simple assault being a lesser included offense of assault with intent to kill, cf. Keeble v. United States, 412 U. S. 205 *740(1973), the jury in the second prosecution would in all likelihood receive instructions on the lesser offense and could find Foster guilty of simple assault. In short, while the Government cannot, under the Constitution, bring charges of simple assault, it apparently can, under the majority’s interpretation, secure a conviction for simple assault, so long as it prosecutes Foster for assault with intent to kill. As I see it, Foster will have been put in jeopardy twice for simple assault.¹⁰ The result is as unjustifiable as it is pernicious. It *741stems, I believe, from a “hypertechnical and archaic approach,” Ashe v. Swenson, 397 U. S. 436, 444 (1970).

“Archaic” might not quite be the word, for even as far back as 1907 the Court appeared to hold a more pragmatic view. Defendant’s court-martial in Grafton was authorized under the 62d Article of War, pursuant to which Congress granted military courts the power to try “officers and soldiers” in time of peace “for any offense, not capital, which the civil law declares to be a crime against the public.” 206 U. S., at 341-342, 348, 351. Grafton faced the following charge: “ Tn that Private Homer E. Grafton ... being a sentry on post, did unlawfully, willfully, and feloniously kill Florentino Castro, a Philippino ... [and] Felix Villanueva, a Philippino.’” Id., at 341. He was acquitted. Id., at 342. Some three months later, Grafton was prosecuted in a civil criminal court. He was charged with the crime of “assassination,” defined as a killing accompanied by any of the following: “(1) With treachery; (2) For price or promise of reward; (3) By means of flood, fire, or poison; (4) With deliberate premeditation; (5) With vindictiveness, by deliberately and inhumanly increasing the suffering of the person attacked.” Id., at 343. Grafton ultimately was found guilty of homicide, a lesser included offense. Id., at 344.

To convict Grafton in the first proceeding, then, it had to be established that (1) he was an officer or a soldier, and (2) he unlawfully killed. In the civil tribunal, the prosecution was required to prove (1) the killing, and (2) some further element, as specified. Had Grafton been tried in 1993 rather than 1907, I suppose that an inflexible Blockburger test, which asks whether “each provision requires proof of a fact the other does not,” 284 U. S., at 304, would uncover no double jeopardy problem. At the time, though, the Court looked at matters differently: Both trials being for the same killing, and “[t]he identity of the offenses [being] determined, *742not by their grade, but by their nature,” id., at 350, prosecuting Grafton for assassination meant twice putting him in jeopardy for the same offense.

I would dispose of Foster’s case in like fashion, and focus on what Justice Scalia overlooks: The interests safeguarded by the Double Jeopardy Clause, and the fact that Foster should not have to defend himself twice against the same charges. When the case is so viewed, the condition that Foster be subject to a contempt order as a practical matter is analogous to the condition that Grafton be a soldier, for it triggered the court’s authority to punish offenses already prescribed by the criminal law. At that point, the relevant comparison for double jeopardy purposes should be between the offenses charged in the two proceedings.

Ill

Once it is agreed that the Double Jeopardy Clause applies in this context, the Clause, properly construed, both governs this case and disposes of the distinction between Foster’s charges upon which Justice Scalia relies. I therefore see little need to draw Grady into this dispute. In any event, the United States itself has not attempted to distinguish between Dixon and Foster or between the charges of “assault” on the one hand and, on the other, “assault with intent to kill” and “threat to injure another.” The issue was not raised before the Court of Appeals or considered by it, and it was neither presented in the petition for certiorari nor briefed by either party. Under these circumstances, it is injudicious to address this matter. See, e. g., Mazer v. Stein, 347 U. S. 201, 206, n. 5 (1954); Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970).

The majority nonetheless has chosen to consider Grady anew and to overrule it. I agree with Justice Blackmun and Justice Souter that such a course is both unwarranted and unwise. See post, at 741, 744. Hence, I dissent from the judgment overruling Grady.

*743IV

Believing that the Double Jeopardy Clause bars Foster’s and Dixon’s successive prosecutions on all counts, I would affirm the judgment of the District of Columbia Court of Appeals. I concur in the judgment of the Court in Part III-A, which holds that Dixon’s subsequent prosecution and Count I of Foster’s subsequent prosecution were barred. I disagree with Justice Scalia’s application of Blockburger in Part III-B. From Part IV of the opinion, in which the majority decides to overrule Grady, I dissent.

Justice Blackmun,

concurring in the judgment in part and dissenting in part.

I cannot agree that contempt of court is the “same offence” under the Double Jeopardy Clause as either assault with intent to kill or possession of cocaine with intent to distribute it. I write separately to emphasize two interrelated points.

I

I agree with Justice Souter that “the Blockburger test is not the exclusive standard for determining whether the rule against successive prosecutions applies in a given case.” Post, at 756. I also share both his and Justice White’s dismay that the Court so cavalierly has overruled a precedent that is barely three years old and that has proved neither unworkable nor unsound. I continue to believe that Grady v. Corbin, 495 U. S. 508 (1990), was correctly decided, and that the Double Jeopardy Clause prohibits a subsequent criminal prosecution where the proof required to convict on the later offense would require proving conduct that constitutes an offense for which a defendant already has been prosecuted.

If this were a case involving successive prosecutions under the substantive criminal law (as was true in Harris v. Oklahoma, 433 U. S. 682 (1977), Illinois v. Vitale, 447 U. S. 410 (1980), and Grady), I would agree that the Double Jeopardy *744Clause could bar the subsequent prosecution. But we are concerned here with contempt of court, a special situation. We explained in Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787 (1987):

“The fact that we have come to regard criminal contempt as ‘a crime in the ordinary sense/ [Bloom v. Illinois, 391 U. S. 194, 201 (1968)], does not mean that any prosecution of contempt must now be considered an execution of the criminal law in which only the Executive Branch may engage.... That criminal procedure protections are now required in such prosecutions should not obscure the fact that these proceedings are not intended to punish conduct proscribed as harmful by the general criminal laws. Rather, they are designed to serve the limited purpose of vindicating the authority of the court. In punishing contempt, the Judiciary is sanctioning conduct that violates specific duties imposed by the court itself, arising directly from the parties’ participation in judicial proceedings.” Id., at 799-800.

The purpose of contempt is not to punish an offense against the community at large but rather to punish the specific offense of disobeying a court order. This Court said nearly a century ago: “[A] court, enforcing obedience to its orders by proceedings for contempt, is not executing the criminal laws of the land, but only securing to suitors the rights which it has adjudged them entitled to.” In re Debs, 158 U. S. 564, 596 (1895).

II

Contempt is one of the very few mechanisms available to a trial court to vindicate the authority of its orders. I fear that the Court’s willingness to overlook the unique interests served by contempt proceedings not only will jeopardize the ability of trial courts to control those defendants under their supervision but will undermine their ability to respond effec*745tively to unmistakable threats to their own authority and to those who have sought the court’s protection.

This fact is poignantly stressed by the amici:

“[Cjontempt litigators and criminal prosecutors seek to further different interests. A battered woman seeks to enforce her private order to end the violence against her. In contrast, the criminal prosecutor is vindicating society’s interest in enforcing its criminal law. The two interests are not the same, and to consider the contempt litigator and the criminal prosecutor as one and the same would be to adopt an absurd fiction.” Brief for Ayuda et al. as Amici Curiae 20 (emphasis in original).

Finally, I cannot so easily distinguish between “summary” and “nonsummary” contempt proceedings, ante, at 696-697, for the interests served in both are fundamentally similar. It is as much a “disruption of judicial process,” ante, at 695, to disobey a judge’s conditional release order as it is to disturb a judge’s courtroom. And the interests served in vindicating the authority of the court are fundamentally different from those served by the prosecution of violations of the substantive criminal law. Because I believe that neither Dixon nor Foster would be “subject for the same offence to be twice put in jeopardy of life or limb,” U. S. Const., Arndt. 5, I would reverse the judgment of the District of Columbia Court of Appeals.

Justice Souter,

with whom

Justice Stevens joins, concurring in the judgment in part and dissenting in part.

While I agree with the Court as far as it goes in holding that a citation for criminal contempt and an indictment for violating a substantive criminal statute may amount to charges of the “same offence” for purposes of the Double Jeopardy Clause, U. S. Const., Arndt. 5, I cannot join the Court in restricting the Clause’s reach and dismembering the protection against successive prosecution that the Constitu*746tion was meant to provide. The Court has read our precedents so narrowly as to leave them bereft of the principles animating that protection, and has chosen to overrule the most recent of the relevant cases, Grady v. Corbin, 495 U. S. 508 (1990), decided three years ago. Because I think that Grady was correctly decided, amounting merely to an expression of just those animating principles, and because, even if the decision had been wrong in the first instance, there is no warrant for overruling it now, I respectfully dissent. I join Part I of Justice White’s opinion, and I would hold, as he would, both the prosecution of Dixon and the prosecution of Foster under all the counts of the indictment against him to be barred by the Double Jeopardy Clause.¹

I

In providing that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb,” U. S. Const., Arndt. 5, the Double Jeopardy Clause protects against two distinct types of abuses. See North Carolina v. Pearce, 395 U. S. 711, 717 (1969). It protects against being punished more than once for a single offense, or “multiple punishment.” Where a person is being subjected to more than one sentence, the Double Jeopardy Clause ensures that he is not receiving for one offense more than the punishment authorized. The Clause also protects against being prosecuted for the same offense more than once, or “successive prosecution.” “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction.” Ibid, (footnotes omitted). The Clause functions in different ways in the two contexts, and the analysis applied to claims of successive prosecution differs from that employed to analyze claims of multiple punishment.

*747II

In addressing multiple punishments, “the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” Brown v. Ohio, 432 U. S. 161, 165 (1977). Courts enforcing the federal guarantee against multiple punishment therefore must examine the various offenses for which a person is being punished to determine whether, as defined by the legislature, any two or more of them are the same offense. Over 60 years ago, this Court stated the test still used today to determine “whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment,” id., at 166:

“[W]here 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.” Blockburger v. United States, 284 U. S. 299, 304 (1932).

The Blockburger test “emphasizes the elements of the two crimes.” Brown, supra, at 166. Indeed, the determination whether two statutes describe the “same offence” for multiple punishment purposes has been held to involve only a question of statutory construction. We ask what the elements of each offense are as a matter of statutory interpretation, to determine whether the legislature intended “to impose separate sanctions for multiple offenses arising in the course of a single act or transaction.” Iannelli v. United States, 420 U. S. 770, 785, n. 17 (1975). See, e. g., Brown, supra, at 167-168 (noting, in applying Blockburger, that state courts “ ‘have the final authority to interpret... [a] State’s legislation’ ” (quoting Garner v. Louisiana, 368 U. S. 157, 169 (1961))). The Court has even gone so far as to say that the Blockburger test will not prevent multiple punishment where legislative intent to the contrary is clear, at least in *748the case of state law. “Where ... a legislature specifically authorizes cumulative punishments under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” Missouri v. Hunter, 459 U. S. 359, 368-369 (1983); see Ohio v. Johnson, 467 U. S. 493, 499, n. 8 (1984).²

With respect to punishment for a single act, the Block-burger test thus asks in effect whether the legislature meant it to be punishable as more than one crime. To give the government broad control over the number of punishments that may be meted out for a single act, however, is consistent with the general rule that the government may punish as it chooses, within the bounds contained in the Eighth and Fourteenth Amendments. With respect to punishment, those provisions provide the primary protection against excess. “Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent.” Johnson, supra, at 499 (citatiohs and footnote omitted).

Ill

The interests at stake in avoiding successive prosecutions are different from those at stake in the prohibition against multiple punishments, and our cases reflect this reality. The protection against successive prosecutions is the central protection provided by the Clause. A 19th-century case of this Court observed that “[t]he prohibition is not against being *749twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial.” United States v. Ball, 163 U. S. 662, 669 (1896). “Where successive prosecutions are at stake, the guarantee serves ‘a constitutional policy of finality for the defendant’s benefit.’” Brown, supra, at 165 (quoting United States v. Jorn, 400 U. S. 470, 479 (1971) (plurality opinion)).

The Double Jeopardy Clause prevents the government from “mak[ing] 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.” Green v. United States, 355 U. S. 184, 187 (1957). The Clause addresses a further concern as well, that the government not be given the opportunity to rehearse its prosecution, “honing its trial strategies and perfecting its evidence through successive attempts at conviction,” Tibbs v. Florida, 457 U. S. 31, 41 (1982), because this “enhanc[es] the possibility that even though innocent [the defendant] may be found guilty,” Green, supra, at 188.

Consequently, while the government may punish a person separately for each conviction of at least as many different offenses as meet the Blockburger test, we have long held that it must sometimes bring its prosecutions for these offenses together. If a separate prosecution were permitted for every offense arising out of the same conduct, the government could manipulate the definitions of offenses, creating fine distinctions among them and permitting a zealous prosecutor to try7 a person again and again for essentially the same criminal conduct. While punishing different combinations of elements is consistent with the Double Jeopardy Clause in its limitation on the imposition of multiple punishments (a limitation rooted in concerns with legislative intent), permitting such repeated prosecutions would not be consistent with the principles underlying the Clause in its limitation on sue*750cessive prosecutions. The limitation on successive prosecutions is thus a restriction on the government different in kind from that contained in the limitation on multiple punishments, and the government cannot get around the restriction on repeated prosecution of a single individual merely by precision in the way it defines its statutory offenses. Thus, “[t]he Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first,” Brown, 432 U. S., at 166-167, n. 6.

An example will show why this should be so. Assume three crimes: robbery with a firearm, robbery in a dwelling, and simple robbery. The elements of the three crimes are the same, except that robbery with a firearm has the element that a firearm be used in the commission of the robbery while the other two crimes do not, and robbery in a dwelling has the element that the robbery occur in a dwelling while the other two crimes do not.

If a person committed a robbery in a dwelling with a firearm and was prosecuted for simple robbery, all agree he could not be prosecuted subsequently for either of the greater offenses of robbery with a firearm or robbery in a dwelling. Under the lens of Blockburger, however, if that same person were prosecuted first for robbery with a firearm, he could be prosecuted subsequently for robbery in a dwelling, even though he could not subsequently be prosecuted on the basis of that same robbery for simple robbery.³ This is true simply because neither of the crimes, robbery *751with a firearm and robbery in a dwelling, is either identical to or a lesser included offense of the other. But since the purpose of the Double Jeopardy Clause’s protection against successive prosecutions is to prevent repeated trials in which a defendant will be forced to defend against the same charge again and again, and in which the government may perfect its presentation with dress rehearsal after dress rehearsal, it should be irrelevant that the second prosecution would require the defendant to defend himself not only from the charge that he committed the robbery, but also from the charge of some additional fact, in this case, that the scene of the crime was a dwelling.⁴ If, instead, protection against successive prosecutions were as limited as it would be by Blockburger alone, the doctrine would be as striking for its anomalies as for the limited protection it would provide. Thus, in the relatively few successive prosecution cases we have had over the years, we have not held that the Block-burger test is the only hurdle the government must clear (with one exception, see infra, at 758-759).

IV

The recognition that a Blockburger rule is insufficient protection against successive prosecution can be seen as long ago as In re Nielsen, 131 U. S. 176 (1889), where we held that conviction for one statutory offense precluded later prosecution for another, even though each required proof of a fact the other did not. There, appellant Nielsen had been convicted after indictment and a guilty plea in what was then the Territory of Utah for “cohabiting] with more than one woman,” based upon his cohabitation with Anna Lavinia *752Nielsen and Caroline Nielsen during the period from October 15, 1885, to May 13, 1888, in violation of a federal antipolygamy law. See Act of Mar. 22, 1882, ch. 47, §3, 22 Stat. 31. Nielsen served his sentence of three months’ imprisonment and paid a $100 fine. He then came to trial on a second indictment charging him under another federal antipolygamy law with committing adultery with Caroline Nielsen on the day following the period described in the first indictment, May 14, 1888, based on the fact that he was married and had a lawful wife, and was not married to Caroline Nielsen. See Act of Mar. 3, 1887, ch. 397, § 3, 24 Stat. 635. Nielsen pleaded former jeopardy to the second indictment, arguing first that the true period of the cohabitation charged in the first indictment extended well beyond May 13 until the day of the indictments, September 27, 1888, and that “the offence charged in both indictments was one and the same offence and not divisible.” 131 U. S., at 178. The Government argued that the two crimes were not the same because the elements of the two offenses differed.

The Nielsen Court first considered the question whether the offense of unlawful cohabitation included, in a temporal sense, the single act of adultery subsequently prosecuted. On this question, the Court first noted, following In re Snow, 120 U. S. 274 (1887), that although the indictment for cohabitation listed May 13, 1888, as the end of that offense, cohabitation is a “ ‘continuing offence . . . [that] can be committed but once, for the purposes of indictment or prosecution, prior to the time the prosecution is instituted.’” 131 U. S., at 186 (quoting Snow, supra, at 282). Thus, the Nielsen Court interpreted the indictment for cohabitation as covering a single continuing offense that ended on the day the indictment was handed up. See 131 U. S., at 187.

Having concluded that the offense of cohabitation was a “continuous” one, “extending over the whole period, including the time when the adultery was alleged to have been committed,” id., at 187, the Court then considered the ques*753tion whether double jeopardy applies where a defendant is first convicted of a continuing offense and then indicted for some single act that the continuing offense includes. The Court answered this question by quoting with approval an observation found in Morey v. Commonwealth, 108 Mass. 433 (1871), that “[a] conviction of being a common seller of intoxicating liquors has been held to bar a prosecution for a single sale of such liquors within the same time.” Id., at 435. The Court then conceded that quoting this observation from the Morey opinion would not alone suffice to decide the case before it, since the Government was relying on a further statement from Morey, this one expressing the Morey court’s reason for holding that a prior conviction on a charge of “lewdly and lasciviously associating” with an unmarried woman was no bar to a subsequent prosecution for adultery: “[Although proof of the same acts of unlawful intercourse was introduced on both trials[,] ... the evidence required to support the two indictments was not the same.” 131 U. S., at 188. The Morey court’s reasoning behind this holding was that “[a] single act may be an offence against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” 108 Mass., at 434, quoted in Nielsen, supra, at 188. Morey’s rule governing subsequent prosecution, in other words, was what we know today as the Block-burger elements test.

The Nielsen Court held the Blockburger test inapplicable for two reasons. First, it distinguished Morey by noting that “[t]he crime of loose and lascivious association ... did not necessarily imply sexual intercourse,” 131 U. S., at 188, while the continuous offense involved in Nielsen, cohabitation under the polygamy statute, required proof of “[ljiving together as man and wife,” which “[o]f course” implies “sexual intercourse,” even though intercourse need not have been pleaded or proven under a cohabitation indictment, id., at *754187. (The second offense charged in both Morey and the case before the Court in Nielsen was adultery, which, of course, did require an act of sexual intercourse.) But even on the assumption that the continuous crime in Morey necessarily did imply sexual intercourse, rendering the cases indistinguishable on their facts, the Nielsen Court indicated that it would not follow the holding in Morey. To the Nielsen Court, it was “very clear that where, as in this case, a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence.” 131 U. S., at 188.

By this last statement, the Court rejected, in a successive prosecution case, the double jeopardy test set out in Morey, which we later adopted in Blockburger; instead of agreeing with Morey that “‘[t]he test is not, whether the defendant has already been tried for the same act/” the Court concluded that a defendant “cannot be a second time tried” for a single act included as one of the “various incidents” of a continuous crime for which he has already been convicted.⁵ 131 U. S., at 188.

The Court then went on to address the contention that adultery, as opposed to sexual intercourse, is not an act included in the continuing offense of cohabitatioh, because *755adultery requires proof that one of the parties is married, while cohabitation does not require such proof. Although the Court agreed that adultery contains such an element, the Court found that this element was irrelevant under its successive prosecution rule, because sexual intercourse is the “essential and principal ingredient of adultery.” Id., at 189. In other words, what may not be successively prosecuted is the act constituting the “principal ingredient” of the second offense, if that act has already been the subject of the prior prosecution. It is beside the point that the subsequent offense is defined to include, in addition to that act, some further element uncommon to the first offense (where the first offense also includes an element not shared by the second). Thus, as the Court states its holding, the cohabitation conviction “was a good bar” because “the material part of the adultery charged [i. e., intercourse] was comprised within the unlawful cohabitation of which the petitioner was already convicted.” Id., at 187 (emphasis supplied); see also ibid. (sexual intercourse “was the integral part of the adultery charged in the second indictment”) (emphasis supplied).

One final aspect of the Nielsen opinion deserves attention. After rejecting a Blockburger test for successive prosecutions, the Court then proceeded to discuss the familiar rule that conviction of a greater offense bars subsequent prosecution for a lesser included offense. This discussion misleads the majority into thinking that Nielsen does nothing more than apply that familiar rule, which is, of course, a corollary to the Blockburger test. See ante, at 705. But Nielsen’s discussion did not proceed on the ground that the Court believed adultery to be a lesser included offense of cohabitation (and thus its later prosecution barred for that reason); on the contrary, the Court had just finished explaining that marriage must be proven for adultery, but not for cohabitation, which precluded finding adultery to be a lesser included offense of cohabitation. The discussion of the lesser included offense rule is apposite for the different reason that once the *756element of marriage was disregarded (as the Court had just done, considering instead only adultery’s “principal ingredient” of intercourse), the act of intercourse stood to cohabitation as a lesser included offense stands to the greater offense. By treating intercourse as though it were a lesser included offense, Nielsen barred subsequent prosecution for that act under an adultery charge. Indeed, on any other reading we would have to conclude that the Nielsen Court did not know what it was doing, for if it had been holding only that a subsequent prosecution for a lesser included offense was barred, the adultery prosecution would not have been. There can be no question that the Court was adopting the very different rule that subsequent prosecution is barred for any charge comprising an act that has been the subject of prior conviction.⁶

V

Our modern cases reflect the concerns that resulted in Nielsen’s holding. We have already quoted the observation that “[t]he Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first.” Brown v. Ohio, 432 U. S., at 166-167, n. 6. The Brown Court, indeed, relied on Nielsen for this proposition. “[I]n In re Nielsen, 131 U. S. 176 (1889), the Court held that a conviction of a Mormon on a charge of cohabiting with his two wives over a 2V2-year period barred a subsequent prosecution for adultery with one of them on the day following the end of that period .... [SJtrict application of the Blockburger test would have per*757mitted imposition of consecutive sentences had the charges been consolidated in a single proceeding. . . . [CJonviction for adultery required proof that the defendant had sexual intercourse with one woman while married to another; conviction for cohabitation required proof that the defendant lived with more than one woman at the same time. Nonetheless, the Court . . . held the separate offenses to be the ‘same.’” Ibid.

In the past 20 years the Court has addressed just this problem of successive prosecution on three occasions. In Harris v. Oklahoma, 433 U. S. 682 (1977) (per curiam), we held that prosecution for a robbery with firearms was barred by the Double Jeopardy Clause when the defendant had already been convicted of felony murder comprising the same robbery with firearms as the underlying felony. Of course the elements of the two offenses were different enough to permit more than one punishment under the Blockburger test: felony murder required the killing of a person by one engaged in the commission of a felony, see 21 Okla. Stat., Tit. 21, § 701 (1971); robbery with firearms required the use of a firearm in the commission of a robbery, see §§ 801, 791. Harris v. State, 555 P. 2d 76, 80 (Okla. Crim. App. 1976), rev’d, 433 U. S. 682 (1977).

In Harris, however, we held that “[w]hen, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one.” We justified that conclusion in the circumstances of the case by quoting Nielsen’s explanation of the Blockburger test’s insufficiency for determining when a successive prosecution was barred. “‘[A] person [who] has been tried and convicted for a crime which has various incidents included in it . . . cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence.’ In re Nielsen, *758[131 U. S.,] at 188.” 433 U. S., at 682-683 (citations and footnote omitted).⁷

Just as in Nielsen, the analysis in Harris turned on considering the prior conviction in terms of the conduct actually charged. While that process might be viewed as a misapplication of a Blockburger lesser included offense analysis, the crucial point is that the Blockburger elements test would have produced a different result. The case thus follows the holding in Nielsen and conforms to the statement already quoted from Brown, that the Blockburger test is not the exclusive standard for determining whether the rule against successive prosecutions applies in a given case.

Subsequently, in Illinois v. Vitale, 447 U. S. 410 (1980), the Court again indicated that a valid claim of double jeopardy would not necessarily be defeated by the fact that the two-offenses are not the “same” under the Blockburger test. In that case, we were confronted with a prosecution for failure to reduce speed and a subsequent prosecution for involuntary manslaughter. The opinion of the Illinois Supreme Court below had not made it clear whether the elements of failure to slow were always necessarily included within the elements of involuntary manslaughter by automobile, and we remanded for clarification of this point, among other things. We held that “[i]f, 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 . . . .” 447 U. S., at 419-420. But that was not all. Writing for the Court, Justice White went on to say that, “[i]n any event, it may be that to sustain its manslaughter case the State may find it neces*759sary to prove a failure to slow or to rely on conduct necessarily involving such failure .... 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).” Id., at 420.

Over a decade ago, then, we clearly understood Harris to stand for the proposition that when one has already been tried for a crime comprising certain conduct, a subsequent prosecution seeking to prove the same conduct is barred by the Double Jeopardy Clause.⁸ This is in no way inconsistent with Vitale’s description of Harris as “treating] a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-included offense.” 447 U. S., at 420. The very act of “treating” it that way was a departure from straight Blockburger analysis; it was the same departure taken by the Nielsen Court. Vitale read Harris (which itself quoted Nielsen) to hold that even if the Blockburger test were satisfied, a second prosecution would not be permitted for conduct comprising the criminal act charged in the first. Nielsen and Harris used the word “incident,” while Vitale used the word “conduct,” but no matter which word is used to describe the unlawful activity for which one cannot again be forced to stand trial, the import of this successive-prosecution strand of our double jeopardy jurisprudence is clear.

Even if this had not been clear since the time of In re Nielsen, any debate should have been settled by our decision three Terms ago in Grady v. Corbin, 495 U. S. 508 (1990), *760that “the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Id., at 510 (footnote omitted). Grady did nothing more than apply a version of the Nielsen rule.

As against this sequence of consistent reasoning from Nielsen to Grady, the Court’s citation to two cases, Gavieres v. United States, 220 U. S. 338, 343 (1911), and Burton v. United States, 202 U. S. 344, 379-381 (1906), cannot validate its insistence that, prior to Grady, our exclusive standard for barring successive prosecutions under the Double Jeopardy Clause was the Blockburger test. See ante, at 707-708. Burton came before the Court on a demurrer. The Court there was not presented with the factual basis for the charges, and simply held that two offenses, accepting a bribe from a company and accepting the same bribe from an officer of that company, were “not identical, in law.” 202 U. S., at 381; see also id., at 379 (“[T]he question presented is whether, upon the face of the record, as matter of law simply, the offense charged in the third and seventh counts of the present indictment is the same as that charged in the third count of the former indictment”) (emphasis in original); Abbate v. United States, 359 U. S. 187, 198, n. 2 (1959) (opinion of Brennan, J.). Rather than proving that the Block-burger same-elements test was always the Court’s exclusive guide to evaluation of successive prosecutions prior to Grady, Burton stands only for the proposition that a claim of double jeopardy resting exclusively on pleadings cannot be adjudicated on any basis except the elements pleaded.

Gavieres is in fact the only case that may even be read to suggest that the Court ever treated a Blockburger analysis as the exclusive successive prosecution test under the Double Jeopardy Clause, and its precedential force is weak. Gavieres was an interpretation not of the Constitution, but *761of an Act of Congress applicable to the Philippines, providing that “no person for the same offense shall be twice put in jeopardy of punishment.” Act of July 1, 1902, ch. 1369, § 5, 32 Stat. 692. It is true that in his opinion for the Court in Gavieres, Justice Day wrote that we had held in Kepner v. United States, 195 U. S. 100 (1904), “that the protection against double jeopardy therein provided had, by means of this statute, been carried to the Philippine Islands in the sense and in the meaning which it had obtained under the Constitution and laws of the United States.” 220 U. S., at 341. Nonetheless, this Court has declined to treat decisions under that statute as authoritative constructions of the Fifth Amendment. See Green v. United States, 355 U. S., at 197, and n. 16; see also Abbate, supra, at 198, n. 2 (opinion of Brennan, J.).

VI

Burton and Gavieres thus lend no support for the Court’s decision to overrule Grady and constrict Harris. Whatever may have been the merits of the debate in Grady, the decision deserves more respect than it receives from the Court today. “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).” Arizona v. Rumsey, 467 U. S. 203, 212 (1984).

The search for any justification fails to reveal that Grady’s conclusion was either “unsound in principle,” or “unworkable in practice.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 546 (1985). Grady’s rule is straightforward, and a departure from it is not justified by the fact that two Court of Appeals decisions have described it as difficult to apply, see ante, at 711-712, n. 16, one apparently because it must be distinguished from the “same evidence” test, see Ladner v. Smith, 941 F. 2d 356, 363-364 (CA5 1991). Nor does the fact that one of those courts has *762broken the single sentence of Grady’s holding into its four constituent clauses before applying it, see Ladner, supra, reveal a type of “‘confusion,’” ante, at 711 (citation omitted), that can somehow obviate our obligation to adhere to precedent. Cf. Patterson v. McLean Credit Union, 491 U. S. 164, 173-174 (1989).

Nor do Burton and Gavieres have the strength to justify the Court’s reading of Harris solely for the narrow proposition that, in a case where a statute refers to other offenses, the elements of those offenses are incorporated by reference in the statute.⁹ While reading the case this way might suffice for purposes of avoiding multiple punishment, this reading would work an unprecedented truncation of the protection afforded by the Double Jeopardy Clause against successive prosecutions, by transferring the government’s leeway in determining how many offenses to create to the assessment of how many times a person may be prosecuted for the same conduct. The Double Jeopardy Clause then would provide no more protection against successive prosecutions than it provides against multiple punishments, and instead of expressing some principle underlying the protection against double jeopardy, Harris would be an anomaly, an “exceptio[n]” to Blockburger without principled justification. Grady, 495 U. S., at 528 (Scalia, J., dissenting). By relying on that anomaly and by defining its offenses with care, the government could not merely add punishment to *763punishment (within Eighth and Fourteenth Amendment limits), but could bring a person to trial again and again for that same conduct, violating the principle of finality, subjecting him repeatedly to all the burdens of trial, rehearsing its prosecution, and increasing the risk of erroneous conviction, all in contravention of the principles behind the protection from successive prosecutions included in the Fifth Amendment. The protection of the Double Jeopardy Clause against successive prosecutions is not so fragile that it can be avoided by finely drafted statutes and carefully planned prosecutions.

VII

I would not invite any such consequences and would here apply our successive prosecution decisions (from Nielsen to Grady) to conclude that the prosecutions below were barred by the Double Jeopardy Clause. Dixon was prosecuted for violating a court order to “[rjefrain from committing any criminal offense.” App. 8. The contempt prosecution proved beyond a reasonable doubt that he had possessed cocaine with intent to distribute it. His prosecution, therefore, for possession with intent to distribute cocaine based on the same incident is barred. It is of course true that the elements of the two offenses can be treated as different. In the contempt conviction, the Government had to prove knowledge of the court order as well as Dixon’s commission of some criminal offense. In the subsequent prosecution, the Government would have to prove possession of cocaine with intent to distribute. In any event, because the Government has already prosecuted Dixon for the possession of cocaine at issue here, Dixon cannot be tried for that incident a second time.¹⁰

*764Foster was subject to a Civil Protection Order (CPO) not to “molest, assault, or in any manner threaten or physically abuse” his wife, Ana Foster. App. 18. With respect to the period in which the CPO was in effect, Foster was alleged to have violated it (in incidents relevant here) by (1) “grabbing [Ms. Foster] and throwing] her against a parked car,” on November 6, 1987, by threatening her on (2) November 12, 1987, (3) March 26, 1988, and (4) May 17, 1988, and by (5) throwing her down basement stairs, kicking her and hitting her head against the floor until she lost consciousness, on May 21,1988. These incidents formed the basis for charging Foster with contempt of court for violation of the CPO. Foster was found guilty of violating the court order by assaulting Ana Foster on November 6, 1987, and May 21,1988. He was found not guilty of the threats on November 12, 1987, March 26, 1988, and May 17, 1988.

The Government then sought to prosecute Foster for these same threats and assaults, charging him in a five-count indictment with violations of the D. C. Code. Count 1 charged him with simple assault on November 6,1987. Since he has already been convicted of this assault, the second prosecution is barred. The Court agrees with this under its reading of Harris, but would distinguish the other counts: Counts II, III, and IV (based on the same threats alleged in the contempt proceeding) charging Foster with “ threatening] to injure the person of Ana Foster ... , in violation of 22 D. C. Code, Section 2307” (which prohibits threats to kidnap, to do bodily injury, or to damage property); and Count V, charging Foster with “assaul[t] . . . with intent to kill” as a result of his actions on May 21, 1988. App. 43-44. The Court concludes that the later prosecutions are not barred, because in its view the offenses charged in the indictment each contained an element not contained in the contempt charge (with respect to the threats, that they be threats to kidnap, to inflict bodily injury, or to damage property; with respect to the assault, that it be undertaken with an intent to kill); and *765because the contempt charge contained an element not specified by the criminal code sections that formed the basis for the indictment (violation of the CPO). See ante, at 700-703.¹¹

In each instance, however, the second prosecution is barred under Nielsen, Harris as we construed it in Vitale, and Grady. The conduct at issue constituted the conduct in the contempts first charged as well as in the crimes subsequently prosecuted, and the Government’s prosecution of Foster twice for the conduct common to both would violate the Double Jeopardy Clause.

VIII

Grady simply applied a rule with roots in our cases going back well over 100 years. Nielsen held that the Double Jeopardy Clause bars successive prosecutions for more than one statutory offense where the charges comprise the same act, and Harris, as understood in Vitale, is properly read as standing for the same rule. Overruling Grady alone cannot remove this principle from our constitutional jurisprudence. Only by uprooting the entire sequence of cases, Grady, Vi-tale, Harris, and Nielsen, could this constitutional principle be undone. Because I would not do that, I would affirm the judgment of the Court of Appeals. I concur in the judgment of the Court in Dixon and with respect to Count I in Foster, but respectfully dissent from the disposition of the case with respect to Counts II-V in Foster.