Lead Opinion
delivered the opinion of the Court.
' The federal Assimilative Crimes Act (ACA or Act) assimilates into federal law, and thereby makes applicable on federal enclaves such as Army bases, certain criminal laws of the State in which the enclave is located. It says:
“Whoever within or upon any [federal enclave] is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State ... in which such place is situated, . . . shall be guilty of a like offense and subject to like punishment.” 18U.S. C. § 13(a).
The question in this case is whether the ACA makes applicable on a federal Army base located in Louisiana a state first-degree murder statute that defines first-degree murder to include the “killing of a human being . . . [w]hen the offender has the specific intent to kill or to inflict great bodily harm upon a victim under the age of twelve_” La. Rev. Stat. Ann. § 14:30(A)(5) (West 1986 and Supp. 1997).
We hold that the ACA does not make the state provision part of federal law. A federal murder statute, 18 U. S. C. § 1111, therefore governs the crime at issue — the killing of a 4-year-old child “with malice aforethought” but without “premeditation.” Under that statute this crime is second-degree, not first-degree, murder.
I
A federal grand jury indictment charged that petitioner, Debra Faye Lewis, and her husband James Lewis, beat and killed James’ 4-year-old daughter while all three lived at Fort Polk, a federal Army base in Louisiana. Relying on the ACA, the indictment charged a violation of Louisiana’s first-degree murder statute. La. Rev. Stat. Ann. §14:30 (West 1986 and Supp. 1993). Upon her conviction, the Dis
On appeal the Fifth Circuit held that Louisiana’s statute did not apply at Fort Polk.
We granted certiorari primarily to consider the Fifth Circuit’s ACA determination. We conclude that the holding was correct, though we also believe that Lewis is entitled to resentencing on the federal second-degree murder conviction.
II
The ACA applies state law to a defendant’s acts or omissions that are “not made punishable by any enactment of Congress.” 18 U. S. C. § 13(a) (emphasis added). The basic question before us concerns the meaning of the italicized рhrase. These words say that the ACA does not assimilate a state statute if the defendant’s “act” or “omission” is punished by “any [federal] enactment.” If the words are taken literally, Louisiana’s law could not possibly apply to Lewis,
The ACA’s basic purpose is one of borrowing state law to fill gaps in the federal criminal law that applies on federal enclaves. See Williams v. United States,
In the 1820’s, when the ACA began its life, federal statutory law punished only a few crimes committed on federal enclaves, such as murder and manslaughter. See 1 Stat. 113. The federal courts lacked the power to supplement these few statutory crimes through the use of the common law. See United States v. Hudson,
Two features of the Act indicate a congressional intent to confine the scope of the words “any enactment” more narrowly than (and hence extend the Act’s reach beyond what) a literal reading might suggest. First, a literal interpretation of the words “any enactment” would leave federal criminal enclave law subject to gaps of the very kind the Act was designed to fill. The Act would be unable to assimilate even a highly specific state law aimed directly at a serious, narrowly defined evil, if the language of any federal statute, however broad and however clearly aimed at a different kind of harm, were to cover the defendant’s act. Were there only a state, and no federal, law against murder, for example, a federal prohibition of assault could prevent the stаte statute from filling the obvious resulting gap.
At the same time, prior to its modern amendment the ACA’s language more clearly set limits upon the scope of the word “any.” The original version of the ACA said that assimilation of a relevant state law was proper when “any offence shall be committed ... the punishment of which of-fence is not specially provided for by any law of the United States.” 4 Stat. 115 (emphasis added); see also 30 Stat. 717 (later reenactment also using “offense”). The word “offense” avoided the purpose-thwarting interpretation of the Act discussed above, for it limited the relevant federal “enactment” to an enactment that punished offenses of the same kind as those punished by state law. Presumably, a federal assault statute would not have provided punishment for the “offense” that state murder law condemned. Congress changed the Act’s language in 1909, removing the word “offense” and inserting the words “act or thing,” 35 Stat. 1145, which later became the current “act or omission.” But Con
For these or similar reasons, many lower courts have interpreted the words “any enactment” more narrowly than a literal reading might suggest. And they have applied the Act to assimilate state statutes in circumstances they thought roughly similar to those suggested by our assault/ murder example above. See, e.g., United States v. Kaufman,
On the other hand, we cannot accept the nаrrow interpretation of the relevant words (and the statute’s consequently broader reach) that the Solicitor General seems to urge. Drawing on our language in Williams, supra, at 717, some lower courts have said that the words “any enactment” refer only to federal enactments that make criminal the same “precise acts” as those made criminal by the relevant state law. See, e. g., United States v. Johnson,
The Government’s view of the “precise acts” test — which comes close to a “precise elements” test — would have the ACA assimilate state law even where there is no gap to fill. Suppose, for example, that state criminal law (but not federal criminal law) makes possession of a state bank charter an element of an offense it calls “bank robbery”; or suppose that state law makes purse snatching criminal under a statute that is indistinguishable from a comparable federal law but for a somewhat different definition of the word “purse.” Where, one might ask, is the gap? As Congress has enacted more and more federal statutes, including many that are applicable only to federal enclaves, see, e. g., 18 U. S. C. § 113 (assault); § 1460 (possession with intent to sell obscene materials), such possibilities become more realistic. And to that extent the Government’s broad view of assimilation threatens not only to fill nonexistent gaps, but also tо rewrite each federal enclave-related criminal law in 50 different ways, depending upon special, perhaps idiosyncratic, drafting circumstances in the different States. See Williams,
Nothing in the Act’s language or in its purpose warrants imposing such narrow limits upon the words “any enactment” and thereby so significantly broadening the statute’s
In our view, the ACA’s language and its gap-filling purpose taken together indicate that a court must first ask the question that the ACA’s language requires: Is the defendant’s “act or omission ... made punishable by any enactment of Congress.” 18 U. S. C. § 13(a) (emphasis added). If the answer to this question is “no,” that will normally end the matter. The ACA presumably would assimilate the statute. If the answer to the question is “yes,” howеver, the court must ask the further question whether the federal statutes that apply to the “act or omission” preclude application of the state law in question, say, because its application would interfere with the achievement of a federal policy, see Johnson v. Yellow Cab Transit Co.,
There are too many different state and federal criminal laws, applicable in too many different kinds of circumstances, bearing too many different relations to other laws, to common-law tradition, and to each other, fоr a touchstone to provide an automatic general answer to this second question. Still, it seems fairly obvious that the Act will not apply where both state and federal statutes seek to punish approximately the same wrongful behavior — where, for example, differences among elements of the crimes reflect jurisdictional, or other technical, considerations, or where differences amount only to those of name, definitional language, or punishment. See, e. g., United States v. Adams,
The Act’s basic purpose makes it similarly clear that assimilation may not rewrite distinctions among the forms of criminal behavior that Congress intended to create. Williams, supra, at 717-718 (nothing in the history or language of the ACA to indicate that once Congress has “defined a penal offense, it has authorized such definition to be enlarged” by state law). Hence, ordinarily, there will be no gap for the Act to fill where a set of federal enactments taken together make criminal a single form of wrong-fid behavior while distinguishing (say, in terms of seriousness) among what amount to different ways of committing the same basic crime.
At the same time, a substantial difference in the kind of wrongful behavior covered (on the one hand by the state statute, on the other, by federal enactments) will ordinarily indicate a gap for a state statute to fill — unless Congress, through the comprehensiveness of its regulation, cf. Wisconsin Public Intervenor v. Mortier,
III
We must now apply these principles to this ease. The relevant federal murder statute — applicable only on federal enclaves — read as follows in 1993, the time of petitioner’s crime:
Ҥ1111. Murder
“(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
“Any other murder is murder in the second degree.
“(b) Within the special maritime and territorial jurisdiction of the United States,
‘Whoever is guilty of murder in the first degree, shall suffer death unless the jury qualifies its verdict by adding thereto ‘without capital punishment’, in which event he shall be sentenced to imprisonment for life; “Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.” 18 U.S. C. §1111 (1988 ed.).
Louisiana’s statute says the following:
“A. First degree murder is the killing of a human being: “(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree kidnapping, aggravated escape, aggravated arson, aggravated rape, forcible rape, aggravated burglary, armed robbery, drive-by shooting, first degree robbery, or simple robbery.
“(2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties;
“(3) Whеn the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; or
“(4) When the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing.
“(5) When the offender has the specific intent to kill or to inflict great bodily harm upon a victim under the age of twelve or sixty-five years of age or older.
“(6) When the offender has the specific intent to kill or to inflict great bodily harm while engaged in the distribution, exchange, sale, or purchase, or any attempt thereof, of a controlled dangerous substance listed in*168 Schedules I, II, III, IV, or V of the Uniform Controlled Dangerous Substances Law.
“(7) When the offender has specific intent to kill and is engaged in the activities prohibited by R. S. 14:107.1(0(1).
“C. Whoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accоrdance with the determination of the jury.” La. Rev. Stat. Ann. § 14:30 (West 1986 and Supp. 1997) (emphasis added).
This statute says that murder in the first degree shall be punished by “death or life imprisonment” without parole. It defines first-degree murder as the “killing of a human being” with a “specific intent to kill or to inflict great bodily harm” where the “offender” is committing certain other felonies or has been paid for the crime or kills more than one victim, or kills a fireman, a peace officer, someone over the age of 64, or someone under the age of 12. In this case, the jury found that the defendant killed a child under the age of 12 with a “specific intent to kill or to inflict great bodily harm” upon that child.
In deciding whether the ACA assimilates Louisiana’s law, we first ask whether the defendant’s “act or omission” is “made punishable by any enactment of Congress.” 18 U. S. C. § 13(a) (emphasis added); see supra, at 164. The answer to this question is “yes.” An “enactment of Congress,” namely, § 1111, makes the defendant’s “act... punishable” as second-degree murder. This answer is not conclusive, however, for reasons we have pointed out. Rather, we must ask a second question. See supra, at 164-165. Does applicable federal law indicate an intent to punish conduct such as the defendant’s to the exclusion of the particular state statute at issue?
The most obvious such feature is the detаiled manner in which the federal murder statute is drafted. It purports to make criminal a particular form of wrongful behavior, namely, “murder,” which it defines as “the unlawful killing of a human being with malice aforethought.” It covers all variants of murder. It divides murderous behavior into two parts: a specifically defined list of “first-degree” murders and all “other” murders, which it labels “second-degree.” This fact, the way in which “first-degree” and “second-degree” provisions are linguistically interwoven; the fact that the “first-degree” list is detailed; and the fact that the list sets forth several circumstances at the same level of generality as does Louisiana’s statute, taken together, indicate that Congress intended its statute to cover a particular field— namely, “unlawful killing of a human being with malice aforethought” — as an integrated whole. The complete coverage of the federal statute over all types of federal enclave murder is reinforced by the extreme breadth of the possible sentences, ranging all the way from any term of years, to death. There is no gap for Louisiana’s statute to fill.
Several other circumstances offer support for the conclusion that Congress’ omissions from its “first-degree” murder list reflect a considered legislative judgment. Congress, for example, has recently focused directly several times upon the content of the “first-degree” list, subtracting certain speei-
Further, Congress when writing and amending the ACA has referred to the conduct at issue here — murder—as an example of a crime covered by, not as an example of a gap in, federal law. See H. R. Rep. No. 1584, 76th Cong., 3d Sess., 1 (1940) (“Certain of the major crimes . .. such ... as murder” are “expressly defined” by Congress; assimilation of state law is proper as to “other offenses”); 1 Cong. Deb. 338 (1825) (Daniel Webster explaining original assimilation provision as a way to cover “the residue” of crimes not “provide[d] for” by Congress; at the time fedеral law contained a federal enclave murder provision, see 1 Stat. 113); see also United States v. Sharpnack,
Finally, the federal criminal statute before us applies only on federal enclaves. § 1111(b). Hence, there is a sense in which assimilation of Louisiana law would treat those living on federal enclaves differently from those living elsewhere in Louisiana, for it would subject them to two sets of “territorial” criminal laws in addition to the general federal criminal laws that apply nationwide. See supra, at 163. Given all these considerations, it is perhaps not surprising that we have been unable to find a single reported case in which a federal court has used the ACA to assimilate a state murder law to fill a supposed “gap” in the federal murder statute.
The Government, arguing to the contrary, says that Louisiana’s provision is a type of “child protection” statute, filling a “gap” in federal enclave-related criminal law due to the fact that Congress left “child abuse,” like much other domestic relations law, to the States. See Brief for United States 23, 29-30. The fact that Congress, when writing various criminal statutes, has focused directly upon “child protection” weakens the force of this argument. See, e. g., 21 U. S. C. §§ 859(a)-(b) (person selling drugs to minors is subject to twice the maximum sentence as one who deals to adults, and repeat offenders who sell to children subject to three times the normal maximum); 18 U. S. C. § 1201(g) (“special rule” for kidnaping offenses involving minors, with enhanced penalties in certain eases); §§ 2241(e) and 2243 (prohibiting sexual abuse of minors); § 2251 (prohibiting sexual exploitation of children); § 2251A (selling and buying of children); § 2258 (failure to report child abuse). And, without expressing any view on the merits of lower court eases that have assimilated state child abuse statutes despite the presence of a federal assault law, § 113, see, e.g., United States v. Brown,
For these reasons we agree with the Fifth Circuit that federal law does not assimilate the child victim provision of Louisiana’s first-degree murder statute.
IV
The Fifth Circuit affirmed petitioner’s conviction on the ground that the jury, in convicting petitioner under the Louisiana statute, necessarily found all of the requisite elements of the federal second-degree murder offense.
Petitioner, however, does argue that the Fifth Circuit was wrong to affirm her sentence (life imprisonment). She points out that the federal second-degree murder statute, unlike Louisiana’s first-degree murder statute, does not make a life sentence mandatory. See 18 U. S. C. § 1111(b) (sentence of “any term of years or for life”). Moreover, the Sentencing Guidelines provide for a range of 168 to 210 months’ imprisonment for a first-time offender who murders a “vulnerable victim,” United States Sentencing Commission, Guidelines Manual §§ 2A1.2, 3A1.1, and ch. 5, pt. A (Nov. 1994), although a judge could impose a higher sentence by departing from the Guidelines range. See id., ch. 5, pt. K; see also Koon v. United States,
The Government concedes petitioner’s point. The Solicitor General writes:
“If the jury had found petitioner guilty of second degree murder under federal law, the district court would have*173 been required to utilize the Sentencing Guidelines provisions applicable to that offense, and the court might have imposed a sentence below the statutory maximum. An upward departure from that range, if appropriate, could reach the statutory maximum of a life sentence, but it is for the district court in the first instance to make such a determination. Resentencing under the Guidelines is therefore appropriate if this Court vacates petitioner’s conviction on the assimilated state offense and orders entry of a judgment of conviction for federal second degree murder.” Brief for United States 38 (footnote and citations omitted).
We consequently vacate the Fifth Circuit’s judgment in respect to petitioner’s sentence and remand the case for resentencing.
It is so ordered.
Concurrence Opinion
with whom Justice Thomas joins, concurring in the judgment.
AlS the proliferation of opinions indicates, this is a most difficult case. I agree with the Court’s conclusion that the Assimilative Crimes Act (ACA), 18 U. S. C. § 13(a), does not incorporate Louisiana’s first-degree murder statute into the criminal law governing federal enclaves in that State. I write separately because it seems to me that the Court’s manner of reaching that result turns the language of the ACA into an empty vessel, and invites the lower courts to fill it with free-ranging speculation about the result that Congress would prefer in each case. Although I agree that the ACA is not a model of legislative draftsmanship, I believe we have an obligation to search harder for its meaning before abandoning the field to judicial intuition.
The Court quotes the text of the ACA early in its opinion, but then identifies several policy reasons for leaving it behind. The statutory language is deceptively simple.
*174 “Whoever within or upon any [federal enclave] is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State ... in which such place is situated, . . . shall be guilty of a like offense and subject to a like punishment.” § 13(a).
At first glance, this appears to say that state law is not assimilated if the defendant can be prosecuted under any federal statute. The Court acknowledges this, but concludes that “a literal reading of the words ‘any enactment’ would dramatically separate the statute from its intended purpose,” ante, at 160, because, for example, a general federаl assault statute would prevent assimilation of a state prohibition against murder.
It seems to me that the term “any enactment” is not the text that poses the difficulty. Whether a federal assault statute (which is assuredly an “enactment”) prevents assimilation of a state murder statute to punish an assault that results in death depends principally upon whether fatal assault constitutes the same “act or omission” that the assault statute punishes. Many hypothetieals posing the same issue can readily be conceived of. For example, whether a state murder statute is barred from assimilation by a federal double-parking prohibition, when the behavior in question consists of the defendant’s stopping and jumping out of his car in the traffic lane to assault and kill the victim. The federal parking prohibition is sure enough an “enactment,” but the issue is whether the “act or omission” to which it applies is a different one. So also with a federal statute punishing insurance fraud, where the murderer kills in order to collect a life insurance policy on the victim.
Many lower courts have analyzed situations like these under what they call the “precise acts” test, see, e. g., United States v. Kaufman,
“[T]he court must ask ... whether thе federal statutes that apply to the ‘act or omission’ preclude application of the state law in question, say, because its application would interfere with the achievement of a federal policy, because the state law would effectively rewrite an offense definition that Congress carefully considered, or because federal statutes reveal an intent to occupy so much of a field as would exclude use of the particular state statute at issue .... The primary question (we repeat) is one of legislative intent: Does applicable federal law indicate an intent to punish conduct such as the defendant’s to the exclusion of the particular state statute at issue?” Ante, at 164, 166 (citations omitted).
Those questions simply transform the ACA into a mirror that reflects the judge’s assessment of whether assimilation of a particular state law would be good federal policy.
I believe that the statutory history of the ACA supports a more principled and constraining interpretation of the current language. The original version of the ACA provided for assimilation whenever “any offence shall be committed ..., the punishment of which offence is not specially provided for by any law of the United States.” 4 Stat. 115.
Williams reached that conclusion by studying the legislative history of the ACA amendments. Although I am not prepared to endorse that particular methodology, reading the ACA against the backdrop of its statutory predecessors does shed some light on its otherwise puzzling language. An “act or omission . . . made punishable by [law]” is the very definition of a criminal “offense,” and certainly might have been another way to express that same idea. In аddition, the ACA still provides that a defendant charged with an assimilated state crime “shall be guilty of a like offense and subject to a like punishment.” 18 U. S. C. § 13(a) (emphasis added). Since an interpretation that ascribes greater substantive significance to the amendments would produce such a vague and unhelpful statute, I think that Williams’s reading of the ACA was essentially correct. A defendant may therefore be prosecuted under the ACA for an “offense” which is “like” the one defined by state law if, and only if, that same “offense” is not also defined by federal law.
That interpretation would hardly dispel all of the confusion surrounding the ACA, because courts would still have to decide whether the assimilated state offense is “the same” as some crime defined by federal law. As Justice Kennedy points out in dissent, “[t]here is a methodology at hand for this purpose, and it is the Blockburger test we use in double jeopardy law.” Post, at 182. Two offenses are different, for double jeopardy purposes, whenever each contains an element that the other does not. See, e. g., Blockburger v. United States,
The Blockburger test, however, establishes what constitutes the “same offence” for purposes of the traditional practice that underlies the Double Jeopardy Clause, U. S. Const., Arndt. 5. That constitutional guarantee not only assumes a scheme of “offences” much more orderly than those referred to by the ACA (since they are the offenses designed by a single sovereign), but also pursues policy concerns that are entirely different. When it is fair to try a defendant a second time has little to do with when it is desirable to subject a defendant to two separate criminal prohibitions. Thus, for example, double jeopardy law treats greater and lesser included offenses as the same, see, e. g., Harris v. Oklahoma,
Justice Kennedy contends that all of these concerns can be accommodated through adjustments to the Blockburger test. In his view, for example, “the existence of a lesser included federal offense does not prevent the assimilation of
Rejecting Blockburger's elements test leaves me without an easy and mechanical answer to the question of when a state and federal offense are the “same” under the ACA. But the language of the original 1825 ACA suggests that the focus of that inquiry should be on the way that crimes were traditionally defined and categorized at common law. It provided that
“... if any offence shall be committed in [an enclave], the punishment of which offence is not specially provided for by any law of the United States, such offence shall.. . receive the same punishment as the laws of the state...*179 provide for the like offence when committed within the body of any county of such state.” 4 Stat. 115.
Congress did not provide any methodology for determining whether an “offence” under state law is “provided for by any law of the United States”; the statute appears, instead, to presume the reader’s familiarity with a set of discrete “of-fence[s]” existing аpart from the particular provisions of either state or federal statutory law.
In my opinion, the legal community of that day could only have regarded such language as a reference to the traditional vocabulary and categories of the common law. Indeed, the original ACA was at least in part a response to our decision in United States v. Hudson,
Since 1825, of course, state and federal legislatures have created a tremendous variety of new statutory crimes that both cut across and expand the old common-law categories. Some of those new “offences” may have become so well established in our common legal culture that their absence from the federal criminal law would now represent a significant gap in its coverage — a gap of the sort the ACA was designed to fill. That possibility introduces an unavoidable element of judgment and discretion into the application of the ACA, and to that extent my interpretation is subject to the same criticisms I have leveled at the approaches taken by the Court and by Justice Kennedy. But I think that
It also produces a clear answer in this case. Ms. Lewis’s conduct is not just punishable under some federal criminal statute; it is punishable as murder under 18 U. S. C. § 1111. Louisiana’s murder statutes are structured somewhat differently from them federal counterparts, but they are still unquestionably murder statutes. Because that “offence” is certainly “made punishable by any enactment of Congress,” there is no gap for the ACA to fill. That remains true even if the common-law category at the аppropriate level of generality is instead murder in the first degree. That “offence” is also defined and punished by the federal criminal law, although the prosecutors in this ease apparently did not believe that they could establish its elements. Accordingly, I concur in the judgment, and in Part IY of the majority’s opinion.
Dissenting Opinion
dissenting.
As the majority recognizes, the touchstone for interpreting the Assimilative Crimes Act (ACA) is the intent of Congress. Ante, at 166. One of Congress’ purposes in enacting the ACA was to fill gaps in federal criminal law. Ante, at 160. The majority fails to weigh, however, a second, countervailing policy behind the ACA: the value of federalism. The intent of Congress was to preserve state law
A central tenet of federalism is concurrent jurisdiсtion over many subjects. See McCulloch v. Maryland, 4 Wheat. 316, 425, 435 (1819). One result of concurrent jurisdiction is that, outside federal enclaves, citizens can be subject to the criminal laws of both state and federal sovereigns for the same act or course of conduct. See Heath v. Alabama, 474 U. S. 82, 88-89 (1985). The ACA seeks to mirror the results of concurrent jurisdiction in enclaves where, but for its provisions, state laws would be suspended in their entirety. Congress chose this means to recognize and respect the power of both sovereigns. We should implement this principle by assimilating state law except where Congress has manifested a contrary intention in “specific [federal] laws.” Franklin, supra, at 568. But see ante, at 163 (suggesting that persons within federal enclaves should not be “randomly subject” to state as well as federal law, even though both sovereigns regulate those outside enclaves).
The majority recognizes that assimilation is not barred simply because the conduct at issue could be punished under a federal statute. It is correct, then, to assume that assimilation depends on whether Congress has proscribed the same offense. Ante, at 161-162. Yet in trying to define the same offense, the majority asks whether assimilation would interfere with a federal policy, rewrite a federal offense, or intrude upon a field occupied by the Federal Government. Ante, at 164-165. The majority’s standards are a roundabout way to ask whether specific federal laws conflict with state laws. The standards take too little note of the value of federalism and the concomitant presumption in favor of
A more serious problem with the majority’s approach, however, is that it undervalues the best indicia of congressional intent: the words of the criminal statutes in question and the factual elements they define. There is a methodology at hand for this purpose, and it is the Blockburger test we use in double jeopardy law. See Blockburger v. United States,
The same-elements test turns on the texts of the statutes in question, the clearest and most certain indicators of the will of Congress. The test is straightforward, and courts and Congress are already familiar with its dynamic. Following Blockburger, a same-elements approach under the ACA would respect federalism by allowing a broad scope for assimilation of state law The majority rejects this approach, however, because federal and state statutes may have trivial differences in wording or may differ in jurisdictional elements. Ante, at 163, 165.
It would be simpler and more faithful to federalism to use a same-elements inquiry as the starting point for the ACA analysis. Courts could use this standard and still accommodate the majority’s concerns. Under this view, we would look beyond slight differences in wording and jurisdictional elements to discern whether, as a practical matter, the elements of the two crimes are the same. The majоrity frets that a small difference in the definitions of purses in federal and state purse-snatching laws would by itself permit assimilation. Ante, at 163. But a slight difference in definition need not by itself allow assimilation. See Amar & Marcus,
Because the purposes of the ACA and double jeopardy law differ, some other adjustments to Blockburger may be necessary. For instance, Blockburger treats greater and lesser included offenses as the same to protect the finality of a single prosecution, but finality is not the purpose of the ACA. Congress chooses to allow greаter and lesser included offenses to coexist at the federal level, though a particular offender cannot be convicted of both. So too the existence of a lesser included federal offense does not prevent the assimilation of a greater state offense under the ACA, or vice versa. See ante, at 171 (citing eases finding federal assault statute does not prevent assimilation of state child-abuse laws).
Another way in which the ACA differs from double jeopardy law is compelled by our own precedent interpreting the ACA. See Williams v. United States,
Congress could have defined first-degree murder to include the killing of children younger than 3, even though state law set the requisite age at 12. Had Congress done so, Williams would apply and assimilation of state law would be improper if all other elements were the same. Here, on the other hand, Congress has not taken a victim’s age into account at all in defining first-degree murder. The state offense includes a substantive age element missing from the federal statute, so the two do not share the same elements and assimilation is proper. The majority’s analysis is more obscure and leads it to an incorrect conclusion. For these reasons, and with all respect, I dissent.