UNITED STATES REPORTS VOLUME 432 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1976 Opinions of June 13 (concluded) Through June 20,1977 Orders of June 14 Through June 20,1977 HENRY PUTZEL, jr. reporter of decisions united states government printing office WASHINGTON : 1979 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 Stock Number 028-001-00401-6 Errata 430 U. S. 488: The last line of text does not end the paragraph. It continues on p. 489. 431 U. S. 803: In the citation of In re Cunningham n. Nadjari, delete “383 N. Y. S. 2d 311.” ii JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS WARREN E. BURGER, Chief Justice. WILLIAM J. BRENNAN, Jr., Associate Justice. POTTER STEWART, Associate Justice. BYRON R. WHITE, Associate Justice. THURGOOD MARSHALL, Associate Justice. HARRY A. BLACKMUN, Associate Justice. LEWIS F. POWELL, Jr., Associate Justice. WILLIAM H. REHNQUIST, Associate Justice. JOHN PAUL STEVENS, Associate Justice. RETIRED STANLEY REED, Associate Justice. WILLIAM 0. DOUGLAS, Associate Justice. OFFICERS OF THE COURT GRIFFIN B. BELL, Attorney General. WADE H. McCREE, Jr., Solicitor General. MICHAEL RODAK, Jr., Clerk. HENRY PUTZEL, jr., Reporter of Decisions. ALFRED WONG, Marshal. BETTY J. CLOWERS, Acting Librarian. hi SUPREME COURT OF THE UNITED STATES Allotment of Justices It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42, and that such allotment be entered of record, viz.: For the District of Columbia Circuit, Warren E. Burger, Chief Justice. For the First Circuit, William J. Brennan, Jr., Associate Justice. For the Second Circuit, Thurgood Marshall, Associate Justice. For the Third Circuit, William J. Brennan, Jr., Associate Justice. For the Fourth Circuit, Warren E. Burger, Chief Justice. For the Fifth Circuit, Lewis F. Powell, Jr., Associate Justice. For the Sixth Circuit, Potter Stewart, Associate Justice. For the Seventh Circuit, John Paul Stevens, Associate Justice. For the Eighth Circuit, Harry A. Blackmun, Associate Justice. For the Ninth Circuit, William H. Rehnquist, Associate Justice. For the Tenth Circuit, Byron R. White, Associate Justice. December 19, 1975. (For next previous allotment, see 404 U. S., p. v.) IV DEATH OF MR. JUSTICE CLARK Supreme Court of the United States THURSDAY, JUNE 16, 197 7 Present: Mr. Chief Justice Burger, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, Mr. Justice Marshall, Mr. Justice Blackmun, Mr. Justice Powell, Mr. Justice Rehnquist, and Mr. Justice Stevens. The Chief Justice said: Before we proceed today with the regular business of the Court, it is my sad duty to take note for the record and the Journal of the Court of the death of our beloved colleague and friend Mr. Justice Tom Clark, who served as a Justice of this Court from 1949 to 1967, after serving as Attorney General of the United States from 1945 to 1949. His death came almost exactly 10 years after retiring from this Court. But retirement for Mr. Justice Clark was not the end but the beginning of a new career in which he was a leading spokesman for judicial improvement and which, at the same time, took him on special assignments into every one of the 11 Federal Circuits. So far as we are aware, no Judge or Justice in history sat on every Court of Appeals after his technical retirement from active service. Even while sitting on this Court Mr. Justice Clark was a literal missionary for improvement of judicial administration, and it was logical that, when the Federal Judicial Center began operations in 1968, he was appointed its first Director. In that position, he gave standing and credibility to this important new institution created by Congress to improve the administration of justice. VI DEATH OF MR. JUSTICE CLARK When he retired as Director, he resumed regular sittings on Courts of Appeals and District Courts all over the United States. And for the past 15 years he has had a part in every major program to improve the work of the courts. He played a leading role in launching the National College of the State Judiciary at Reno, Nev., where more than 1,000 state judges have received special training in the past decade. Last Saturday he was in his Chambers here at the Supreme Court, completing his preparation for cases he was to hear argued in the United States Court of Appeals for the Second Circuit in New York. When he did not arrive at the Court of Appeals on Monday morning, it was discovered that his death occurred during the night. He died as he lived, deeply committed and involved in the judicial work he loved—and literally, in the tradition of the West—“with his boots on.” No one in the past 30 years has done more than Tom Clark to improve justice in our country and no one had such universal respect and affection of the lawyers and judges of this country. I speak for all the present and former Members of the Court today in expressing our deep sorrow, and our profound sympathy, for Mrs. Clark and her family. On an appropriate occasion after the opening of the next Term of the Court in October, the official memorial service of the Court will be conducted for Mr. Justice Clark in this Chamber. TABLE OF CASES REPORTED Note: All undesignated references herein to the United States Code are to the 1970 edition. Cases reported before page 901 are those decided with opinions of the Court or decisions per curiam. Cases reported on page 901 et seq. are those in which orders were entered. Page Aeschliman; Consumers Power Co. v.................................. 904 Alaska; Lewis v.................................................... 901 Allegaert; Perot v................................................. 910 Allen v. South Carolina............................................ 902 Allotey v. United States........................................... 908 Ansehni; Times Mirror Co. v........................................ 911 Arkansas; Strobl v................................................. 906 Attorney General; Briscoe v........................................ 404 Attorney General of Mass.; First National Bank of Boston v....... 904 Ayoub; Spencer v................................................... 907 Barker v. United States............................................ 903 Bartemio v. United States.......................................... 902 Batterton v. Francis............................................... 416 Beal v. Doe........................................................ 438 Bechtel Corp.; Foster v............................................ 909 Bell; Briscoe v.................................................... 404 Bellotti; First National Bank of Boston v.......................... 904 Berkson v. United States........................................... 906 Black v. Holt...................................................... 910 Black; Warren v.................................................... 908 Blake v. U. S. Court of Appeals.................................... 905 Biundo; International Terminal Operating Co. v..................... 249 Board of Comm’rs of Sheffield; United States v..................... 905 Boorstin; Parker v................................................. 911 Boyd v. Rodriguez.................................................. 911 Bradley; Mandel v................................................. 173 Brathwaite; Manson v................................................ 98 Briscoe v. Bell.................................................... 404 Brown; Knox v...................................................... 906 Brown v. Ohio...................................................... 161 vn Vin TABLE OF CASES REPORTED Page Buchanan v. United States....................................... 907 California; Jones v............................................. 909 California; United States v...................................... 40 California; Zatko v............................................. 908 Caputo; Northeast Marine Terminal Co. v......................... 249 Carini v. United States....................................... 902 Cherry v. Estelle............................................... 909 Chesney v. Gresham.............................................. 907 Christian v. United States..................................... 910 Christiansburg Garment Co. v. Equal Employment Opp. Common 905 Clowes v. Serrano............................................... 907 Collins; E. I. du Pont de Nemours & Co. v........................ 46 Collins; Securities and Exchange Comm’n v...................... 46 Commissioner of Education of New York v. Mauclet.................. 1 Commissioner of Social Services of Connecticut v. Doe........... 526 Commissioner of Social Services of Connecticut v. Roe........... 464 Consumers Power Co. v. Aeschliman............................... 904 Corrections Commissioner. See name of commissioner. Court of Appeals. See U. S. Court of Appeals. Cozzetti v. United States....................................... 910 Crisafi v. Virginia............................................. 909 Crouch v. United States......................................... 903 Crowley v. New Jersey........................................... 909 Cuthbertson v. Washington....................................... 909 Cutting v. United States........................................ 909 Director of penal or correctional institution. See name of director. Dobbert v. Florida............................................ 282 Doe; Beal v..................................................... 43g Doe; Maher v.................................................... 526 Doe; Poelker v.................................................. 519 Drummond v. Fulton County Dept, of Family Services.............. 905 Du Pont de Nemours & Co. v. Collins.......................... 46 Eagle Books, Inc.; Reinhard v............................. 902 Eason v. Maloney................................................ 907 E. I. du Pont de Nemours & Co. v. Collins....................... 46 Ellers v. Redman................................................ 903 Equal Employment Opp. Comm’n; Christiansburg Garment Co. v. 905 Equal Employment Opp. Comm’n; Occidental Life Ins. Co. v...... 355 Estelle; Cherry v............................................... 909 Estelle; Perkins v.............................................. 909 First National Bank of Boston v. Bellotti....................... 904 Florence Nightingale Nursing Home v. Horan...................... 901 Florida; Dobbert v.............................................. 282 TABLE OF CASES REPORTED IX Page Fogg v. Welcome............................................... 911 Foster v. Bechtel Corp........................................... 909 Francis; Batterton v......................................*...... 416 Fulton County Dept, of Family Services; Drummond v............... 905 General Dynamics Corp. v. United States.......................... 905 Georgia; Goodwin v............................................... 911 Georgia; Johnson v............................................... 906 Gholson v. Texas................................................. 911 Giles; Jagnandan v............................................... 910 Goodwin v. Georgia............................................... 911 Governor of Maryland v. Bradley.................................. 173 Governor of North Carolina v. Washington Apple Adv. Comm’n . 333 Governor of Texas v. Bell........................................ 404 Grant v. United States....................................;...... 908 Greene v. Massey................................................. 905 Gresham; Chesney v............................................... 907 Gressette; Morris v............................................. 491 Griffin v. South Carolina........................................ 908 Hankerson v. North Carolina...................................... 233 Hardison; Machinists v............................................ 63 Hardison; Trans World Airlines v................................ 63 Harmer v. Motion Picture Film Entitled “Deep Throat”............. 907 Helms v. Vance................................................... 907 Hildebrant; Jones v.............................................. 183 Hinkley v. United States......................................... 908 Holt; Black v................................................... 910 Horan; Florence Nightingale Nursing Home v....................... 901 Horan; Sigety w.................................................. 901 Hunt v. Mobil Oil Corp........................................... 904 Hunt v. Washington Apple Advertising Comm’n...................... 333 Impac Limited, Inc.; Third National Bank in Nashville v......... 312 Industrial Comm’n of Arizona; Sandoval v......................... 906 International. For labor union, see name of trade. International Terminal Operating Co. v. Biundo................... 249 Jackson v. Reiling............................................... 906 Jagnandan v. Giles............................................ _ 910 Jeffers v. United States......................................... 137 Jennings; Mullen v...........•................................... 908 Johnson v. Georgia............................................... 906 Johnson v. United States......................................... 907 Jones v. California............................................. 909 Jones v. Hildebrant.................;............................ 183 Jones; Joseph E. Seagram & Sons, Inc. v.......................... 901 X TABLE OF CASES REPORTED Page Joseph E. Seagram & Sons, Inc. v. Jones........................ 901 Joyous Junques, Inc. v. Whitehurst Associates.................. 907 Klein v. Klein.................................................. OU Knox v. Brown.................................................. 006 Kuykendall v. Southern Farm Bureau Casualty Insurance Co...... 911 Labor Union. See name of trade. Lee v. United States............................................. 23 Lee v. Washington............................................. 901 Legere v. United States....................................... 908 Lewis v. Alaska................................................ 001 Librarian of Congress; Parker v............................... 011 Loveladies Property Owners Assn. v. Raab......................... 906 MacDonald; United States ........................................ 905 Machinists v. Hardison........................................... 63 Maher v. Doe.................................................. 626 Maher v. Roe.................................................. 464 Maloney; Eason .................................................. 907 Mandel v. Bradley............................................. 1^ Manson v. Brathwaite.......................................... 98 Martin v. United States.......................................... 906 Massachusetts v. United States................................ 905 Massey; Greene .................................................. 905 Mauclet; Nyquist ............................................. 1 Mayor of St. Louis v. Doe........................................ 619 McClain v. United States..................................... 908 McDaniel v. Paty................................................. 905 McDonald v. Tennessee.......................................... 901 McDonald v. Thompson........................................... 903 McDonald; United Airlines ...................................- 385 Milligan v. Stone.............................................. 908 Mills v. United States......................................... 903 Mirin v. Nevada ex rel. Public Service Comm’n.................. 906 Mobil Oil Corp.; Hunt ......................................... 904 Monroe County Probate Court v. Weldon.......................... 902 Morris v. Gressette............................................ 491 Motion Picture Film Entitled “Deep Throat”; Harmer v.......... 907 Mullen v. Jennings............................................. 908 National Socialist Party of America v. Skokie................... 43 Natural Resources Def. Council; Vermont Nuclear Power Corp. v.. 904 Nebraska; South Dakota ....................................... 904 Nevada ex rel. Public Service Comm’n; Mirin v.................. 906 Nevada ex rel. Public Service Comm’n; Strip Cab Co. v.......... 906 New Jersey; Crowley .......................................... 909 TABLE OF CASES REPORTED xi Page New York; Patterson v................................................ 197 New York Health & Mental Hygiene Facilities Corp.; Popkin v.... 906 North Carolina; Hankerson v........................................ 233 Northeast Marine Terminal Co. v. Caputo......................... 249 Nyquist v. Mauclet..................................................... 1 Occidental Life Ins. Co. v. Equal Employment Opp. Comm’n......... 355 Ohio; Brown v........................................................ 161 Owens v. U. S. Parole Comm’n.................................; 909 Parker v. Boorstin.................................................. gn Patterson v. New York.................................... _ 197 Paty; McDaniel v................................................. 90$ Perkins v. Estelle................................................. 909 Perot v. Allegaert................................................ 91q Pilla v. United States............................................. 907 Poelker v. Doe..................................................... $19 Popkin v. New York Health & Mental Hygiene Facilities Corp.... 906 President Pro Tern, South Carolina Senate; Morris v................ 491 Proffitt v. United States............................ ......” '. 907 Public Service Comm’n; Mirin v..................................... 906 Public Service Comm’n; Strip Cab Co. v............................. 906 Raab; Loveladies Property Owners Assn, v........................... 906 Redman; Ellers v................................................... 993 Reiling; Jackson v................................................. 9q« Reinhard v. Eagle Books, Inc....................................... 902 Ringwait v. United States.......................\ 906 Robinson v. United States...........................................908 Rodriguez; Boyd v.................................... ........... 911 Roe; Maher v.......... Aa. bailey v. United States............................................ 909 Sandoval v. Industrial Comm’n of Arizona........................... 906 Saverese v. United States...................." ’ ’ ” " ........... 908 Saylors v. United States........................................ 903 Seagram & Sons, Inc. v. Jones...................................... 90i Secretary, Dept, of Human Resources of Maryland v. Francis....... 416 ecretary, Dept, of Public Welfare of Pennsylvania v. Doe........... 438 Secretary of State; Helms v........................................ 907 Securities and Exchange Comm’n v. Collins........................... 46 Serrano; Clowes v............'..................................... q«7 Shelton v. Taylor............................... Sigety v. Horan................................................... 901 Simpson v. United States.................‘ ‘' 904 Skokie; National Socialist Party of America v........' ’’ 43 South Carolina; Allen v............................................ 902 XII TABLE OF CASES REPORTED Page South Carolina; Griffin v................ T...........■............ 908 South Dakota v. Nebraska........................................... 904 Southern Farm Bureau Casualty Insurance Co.; Kuykendall v......... 911 Spencer v. Ayoub................................................... 907 State. See name of State. State’s Attorney of Winnebago County v. Eagle Books, Inc.......... 902 Steele v. United States............................................ 908 Stokes v. United States............................................ 907 Stone; Milligan v.................................................. 908 Stone v. United States............................................. 906 Strip Cab Co. v. Nevada ex rel. Public Service Comm’n.............. 906 Strobl v. Arkansas................................................. 906 Superintendent of penal or correctional institution. See name or state title of superintendent. Superintendent of Schools of Los Angeles County v. Serrano........ 907 Tax Collector of Merced County; Chesney v.......................... 907 Taylor; Shelton ................................................... 909 Tennessee; McDonald v.............................................. 901 Texas; Gholson .................................................... 911 Third National Bank in Nashville v. Impac Limited, Inc............. 312 Thompson; McDonald v............................................... 903 Times Mirror Co. v. Ansehni........................................ 911 Trans World Airlines v. Hardison.................................... 63 United Airlines v. McDonald....................................... 385 United States; Allotey v.......................................... 908 United States; Barker v........................................... 903 United States; Bartemio v......................................... 902 United States; Berkson v.......................................... 906 United States v. Board of Comm’rs of Sheffield.................... 905 United States; Buchanan v.......................................... 907 United States v. California......................................... 40 United States; Carini v............. ...................*......... 902 United States; Christian v........................................ 910 United States; Cozzetti v.......................................... 910 United States; Crouch v............................................ 903 United States; Cutting v......................................... 909 United States; General Dynamics Corp, v............................ 905 United States; Grant v............................................. 908 United States; Hinkley v........................................... 908 United States; Jeffers v........................................... 137 United States; Johnson v.......................................... 907 United States; Lee v............................................... 23 United States; Legere v............................................ 908 TABLE OF CASES REPORTED XIII Page United States v. MacDonald......................................... 905 United States; Martin v........................................... 906 United States; Massachusetts v.................................... 905 United States; McClain v.......................................... 908 United States; Mills v............................................ 903 United States; Pilla v............................................ 907 United States; Proffitt v....................................... 907 United States; Ringwait v......................................... 906 United States; Robinson v......................................... 908 United States; Salley v........................................... 909 United States; Saverese v......................................... 908 United States; Saylors v.......................................... 903 United States; Simpson v.......................................... 904 United States; Steele v........................................... 908 United States; Stokes v............................................ 907 United States; Stone v............................................ 906 United States; Walton v........................................... 908 United States; Watson v........................................... 908 United States; Woods v............................................ 909 U. S. Court of Appeals; Blake v.................................... 905 U. S. Parole Comm’n; Owens v....................................... 909 Vance; Helms v.................................................... 907 Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council. 904 Village. See name of village. Virginia; Crisafi v................................................ 909 Walton v. United States............................................ 908 Warden. See name of warden. Warren v. Black.................................................... 908 Washington; Cuthbertson v...................,..................... 909 Washington; Lee v.................................................. 901 Washington Apple Advertising Comm’n; Hunt v.................. 333 Watson v. United States............................................ 908 Welcome; Fogg v................................................... 911 Weldon; Monroe County Probate Court v......................... 902 Welfare Inspector General of N. Y.; Florence Nightingale Home v. 901 Welfare Inspector General of N. Y.; Sigety v..................... 901 White v. Yochelson................................................. 909 Whitehurst Associates; Joyous Junques, Inc. v...................... 907 Woods v. United States............................................. 909 Yochelson; White v................................................. 909 Zatko v. California................................................ 908 TABLE OF CASES CITED Page Abbott Labs, v Gardner, 387 U. S. 136 501, 505, 506, 509, 510, 517 Abney v. United States, 431 U. S. 651 44,902,903 Accardi v. Shaughnessy, 347 U. S. 260 513 Adams v. Illinois, 405 U. S. 278 243,245 Adams v. Woods, 2 Cranch 336 376 Air Lines Stewards v. American Airlines, 455 F. 2d 101 401 Albemarle Paper Co. v. Moody, 422 U. S. 405 389,393 Alexander v. Gardner-Denver Co, 415 U. S. 36 73, 79, 368, 379, 381, 384 Allen v. Scandinavian Nat. Bank, 46 How. Pr. 71 317 Allen v. State Board of Elections, 393 U. S. 544 495,498,501, 503-505, 507, 511, 512 Allison v. California Adult Authority, 419 F. 2d 822 189 Allway Taxi, Inc. v. New York, 340 F. Supp. 1120 347 Alyeska Pipeline Co. v. Wilderness Soc, 421 U. S. 240 521 American Brake Shoe & Foundry v. Interborough Transit, 3 F. R. D. 162 395 American Party of Texas v. White, 415 U. S. 767 475 American Pipe & Constr. Co. v. Utah, 414 U. S. 538 391- 394,397-399,402 American Tel. & Tel. v. United . States, 299 U. S. 232 425 Andersen v. United States, 170 U. S. 481 231 Anderson v. State, 267 So. 2d 8 301 Anschul v. Sitmar Cruises, Inc, 544 F. 2d 1364 388 Page Arlington Heights v. Metropolitan Housing Dev. Corp, 429 U. S. 252 6,341 Ashe v. Swenson, 397 U. S. 436 151, 165,167,169,170 Ashwander v. TVA, 297 U. S. 288 449 Association of Data Processing Orgs. v. Camp, 397 U. S. 150 501 Atchison, T. & S. F. R. Co. v. Scarlett, 300 U. S. 471 425 Auerbach v. Mandel, 409 U. S. 808 179,182 Auto Workers v. Hoosier Cardinal Corp, 383 U. S. 696 367, 374, 375, 377, 378, 381 Bailey v. Alabama, 219 U. S. 219 227,228,230 Bailey v. Ryan Stevedoring, 528 F. 2d 551 393 Baker, In re, 267 So. 2d 331 301 Baker v. Carr, 369 U. S. 186 341, 345 Baldwin v. G. A. F. Seelig, Inc, 294 U. S. 511 353 Barker v. Wingo, 407 U. S. 514 38 Barlow v. Collins, 397 U. S. 159 501 Barnes v. United States, 412 U. S. 837 231 Barrett v. United States, 423 U S 212 319 Basista v. Weir, 340 F. 2d 74 191 Battle v. United States, 209 U S 36 231 Beal v.' Doe, 432 U. S. 438 465, 478,480 Beazell v. Ohio, 269 U. S. 167 292, 293 Beer v. United States, 425 U. S. 130 495,505,517 Belcher v. Stengel, 429 U. S. 118 189 Bell v. United States, 349 U. S. 81 155,165 xv XVI TABLE OF CASES CITED Page Bellotti v. Baird, 428 U. S. 132 455,473,489,525 Blackledge v. Allison, 431 U. S. 63 248 Blackledge v. Perry, 417 U. S. 21 151 Blake v. United States, 407 F. 2d 908 231 Blockburger v. United States, 284 U. S. 299 144, 146,166,168,169 Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723 444 Board of County Comm’rs v. United States, 308 U. S. 343 367, 377,378 Boddie v. Connecticut, 401 U. S. 371 469,470,488 Bouie v. Columbia, 378 U. S. 347 169 Bowen v. First Nat. Bank of Medina, 34 How. Pr. 408 317 Braunfeld v. Brown, 366 U. S. 599 90 Braverman v. United States, 317 U. S. 49 169 Brazier v. Cherry, 293 F. 2d 401 190 Brewer v. Williams, 430 U. S. 387 113 Brinegar v. United States, 338 U. S. 160 226 Briscoe v. Bell, 432 U. S. 404 506, 510 Brown v. Board of Education, 347 U. S. 483 461,477 Brown v. Ohio, 432 U. S. 161 150, 151,158 Buck v. Gallagher, 307 U. S. 95 347 Buckley v. Valeo, 424 U. S. 1 475, 476 Burnett v. New York C. R. Co., 380 U. S. 424 401 Burns v. Alcala, 420 U. S. 575 418, 419 Cadle v. Tracy, 4 F. Cas. 967 317 Calbeck v. Travelers Ins. Co., 370 U. S. 114 260 Calder v. Bull, 3 Dall. 386 308 Callanan v. United States, 364 U. S. 587 155,157 Page Camp v. Pitts, 411 U. S. 138 426 Campbell v. Haverhill, 155 U. S. 610 367,374,376 Caperci v. Huntoon, 397 F. 2d 799 191 Carey v. Population Services International, 431 U. S. 678 473, 477,486,487 Carleson v. Remillard, 406 U. S. 598 419 Central States Electric Corp. v. Austrian, 183 F. 2d 879 55 Chapman v. California, 386 U. S. 18 128 Chapman v. Gerard, 456 F. 2d 577 6 Chapman v. Meier, 420 U. S. 1 488 Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390 367,374 Chesapeake Bank v. First Nat. Bank, 40 Md. 269 330 Chicot County Dist. v. Baxter State Bank, 308 U. S. 371 297, 305 Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 426, 501 City. See name of city. Clemons v. United States, 133 U. S. App. D. C. 27 114 Coffin v. United States, 156 U. S. 432 227 Cohen v. Beneficial Loan Corp., 337 U. S. 541 44 Cohens v. Virginia, 6 Wheat. 264 319 Coleman v. Alabama, 399 U. S. 1 105-107,123,243 Collum v. Butler, 421 F. 2d 1257 189 Colorado Springs Amusements v. Rizzo, 428 U. S. 913 179 Commonwealth v. Botelho, 343 N. E. 2d 876 129 Commonwealth v. York, 50 Mass. 93 202,219 Connor v. Finch, 431 U. S. 407 488 Connor v. Waller, 421 U. S. 656 497,514 Cooke v. State Nat. Bank of Boston, 50 Barb. 339 317 TABLE OF CASES CITED XVII Page Cool v. United States, 409 U. S. 100 227 Cooley v. Board of Wardens, 12 How. 299 350 Cope v. Anderson, 331 U. S. 461 368,375,379 Corn Products Rfg. v. Eddy, 249 U. S. 427 349 County. See name of county. Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 44,45 Crepps v. Durden, 2 Cowper 640 169 Cummins v. Parker Seal Co., 516 F. 2d 544 75 Dandridge v. Williams, 397 U. S. 471 22,456,471,479 Davis v. United States, 160 U. S. 469 202,225,227,231 Davis v. Washington Labor Dept, 317 U. S. 249 259 Dean Milk Co. v. Madison, 340 U. S. 349 350,353 De Canas v. Bica, 424 U. S. 351 7 Desist v. United States, 394 U. S. 244 246,247 DeStefano v. Woods, 392 U. S. 631 243 Dewey v. Reynolds Metals Co, 402 U. S. 689 86 Dewey v. Reynolds Metals Co, 429 F. 2d 324 73,74,88,89 D. H. Overmyer Co. v. Loflin, 440 F. 2d 1213 401 Diaz v. United States, 223 U. S. 442 151,169 Doe v. Beal, 523 F. 2d 611 484 Doe v. Bolton, 410 U. S. 179 442, 449-451, 454, 455, 460-462, 468, 473, 481, 483-487, 520 Doe v. Rampton, 366 F. Supp. 189 484 Doe v. Rose, 499 F. 2d 1112 484 Doe v. Stewart, Civ. No. 74-3197 (ED La.) 443 Doe v. Westby, 383 F. Supp. 1143 484 Doe v. Westby, 402 F. Supp. 140 443 Doe v. Wohlgemuth, 376 F. Supp. 173 484 Page Donaldson v. Sack, 265 So. 2d 499 288,297,304 Douglas v. California, 372 U. S. 353 471,488 Draper v. United States Pipe & Foundry Co., 527 F. 2d 515 75, 96 Dunlop v. Bachowski, 421 U. S. 560 413, 501,505, 510,514 Dunn v. Blumstein, 405 U. S. 330 10,488 Earle v. Pennsylvania, 178 U. S. 449 320,329,331 East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 497, 499 Edelman v. Jordan, 415 U. S. 651 182 Eisenstadt v. Baird, 405 U. S. 438 451 Electrical Workers v. Robbins & Myers, Inc., 429 U. S. 229 380 EEOC v. Cleveland Mills Co., 502 F. 2d 153 366 EEOC v. Duval Corp., 528 F. 2d 945 366 EEOC v. E. I. du Pont de Nemours Co., 516 F. 2d 1297 366 EEOC v. General Electric Co., 532 F. 2d 359 372 EEOC v. Griffin Wheel Co., 511 F. 2d 456 366 EEOC v. Huttig Sash & Door, 511 F. 2d 453 372,373 EEOC v. Kimberly-Clark Corp., 511 F. 2d 1352 366,373 EEOC v. Louisville & N. R. Co., 505 F. 2d 153 366 EEOC v. Meyer Bros. Drug, 521 F. 2d 1364 366 Esplin v. Hirschi, 402 F. 2d 94 393 Evans v. State, 28 Md. App. 640 231 Examining Bd. v. Flores de Otero, 426 U. S. 572 7,12 Ex parte. See name of party. Falter v. United States, 23 F. 2d 420 310 FTC v. Mandel Bros., 359 U. S.385 55 XVIII TABLE OF CASES CITED Page First Nat. Bank v. Anderson, 269 U. S. 341 322 First Nat. Bank v. La Due, 39 Minn. 415 330 First Nat. Bank v. Superior Ct., 240 Cal. App. 2d 109 330 First Nat. Bank of Selma v. Colby, 461 Ala. 435 317 Fish v. Liley, 120 Colo. 156 184 Florida Lime & Avocado Grow- ers v. Paul, 373 U. S. 132 349, 350 Foster v. California, 394 U. S. 440 105,123,135 Francis v. Davidson, 340 F. Supp. 351 421,422,426 Frank v. United States, 42 F. 2d 623 231 Franks v. Bowman Transp. Co., 424 U. S. 747 71,79, 82, 382, 389, 394, 400 Freedman v. Maryland, 380 U. S. 51 44,45 Freeman v. Hewit, 329 U. S. 249 350 Freeman Mfg. Co. v. National Bank of the Republic, 160 Mass. 398 320,330 French Republic v. Saratoga Vichy Co., 191 U. S. 427 382 Furman v. Georgia, 408 U. S. 238 288,297,304,309 Fusari v. Steinberg, 419 U. S. 379 176 Gallagher v. Crown Kosher Mkt., 366 U. S. 617 96 Galloway v. United States, 319 U. S. 372 231 Galvan v. Levine, 490 F. 2d 1255 393 Gamer v. Louisiana, 368 U. S. 157 167 Garner v. Second Nat. Bank, 66 F. 369 330 Gaston County v. United States, 395 U. S. 285 412 Gavieres v. United States, 220 U. S. 338 146,166 General Electric v. Gilbert, 429 U. S. 125 76,425 Georgia v. United States, 411 U. S. 526 495, 502- 504, 511, 512, 515-517 Page Gerstein v. Coe, 417 U. S. 279 443 Gibson v. Mississippi, 162 U. S. 565 293 Gilbert v. California, 388 U. S. 263 111,118 Gill v. Manuel, 488 F. 2d 799 191 Gillette v. United States, 401 U. S. 437 90 Glenwood Light & Water v. Mutual Power Co., 239 U. S. 121 347 Goldberg v. Kelly, 397 U. S. 254 13 Gore v. United States, 357 U. S. 386 155,165 Graham v. Richardson, 403 U. S. 365 7, 8, 10, 12, 13, 15-17, 20 Gravitt v. Southwestern Bell Telephone, 430 U. S. 723 414 Grayned v. Rockford, 408 U. S. 104 310,311 Great A&P Tea v. Cottrell, 424 U. S. 366 349,350,353 Green v. United States, 355 U. S. 184 35,152,160,166,167 Gregg v. Georgia, 428 U. S. 153 304,911 Griffin v. Illinois, 351 U. S. 12 471, 483,488 Griffiths, In re, 413 U. S. 717 4,7, 9, 11, 13, 15-17, 19, 20 Griggs v. Duke Power Co., 401 U. S. 424 71, 72 Guaranty Trust Co. v. United States, 304 U. S. 126 401 Hadnott v. Amos, 394 U. S. 358 495 Hagans v. Lavine, 415 U. S. 528 484 Haggar Co. v. Helvering, 308 U. S. 389 321 Hall v. Wooten, 506 F. 2d 564 190 Hampton v. Chicago, 484 F. 2d 602 190 Hampton v. Mow Sun Wong, 426 U. S. 88 7 Hankerson v. North Carolina, 432 U. S. 233 201 Harper v. Kleindienst, 362 F. Supp. 742 497,500,507,514 TABLE OF CASES CITED XIX Page Harper v. Levi, 171 U. S. App. D. C. 321 493, 496-499, 503, 517, 518 Hartung v. People, 22 N. Y. 95 305 Haynes v. Logan Furniture, 503 F. 2d 1161 393 Hebert v. Louisiana, 272 U. S. 312 223 Heller v. New York, 413 U. S. 483 910 Herbertson v. Russell, 150 Colo. 110 184 Hicks v. Miranda, 422 U. S. 332 176,179,205 Hobson v. Hansen, 44 F. R. D. 18 396 Hodgson v. Mine Workers, 153 U. S. App. D. C. 407 396 Holmberg v. Armbrecht, 327 U. S. 392 367,381 Hopt v. Utah, 110 U. S. 574 293, 294 Howell v. Cataldi, 464 F. 2d 272 189 Huffman v. Pursue, Ltd., 420 U. S. 592 527 Hunt v. New York Cotton Exch., 205 U. S. 322 347 lannelli v. United States, 420 U. S. 770 139,146- 14 9, 155, 157, 158, 166 Illinois v. Somerville, 410 U. S. 458 31,36 In re. See name of party. Irvin v. Dowd, 366 U. S. 717 302 Irvine v. California, 347 U. S. 128 201 I. T. O. Corp, of Baltimore v. BRB, 529 F. 2d 1080 277, 278,281 I. T. O. Corp, of Baltimore v. BRB, 542 F. 2d 903 256,271,287 Ivan V. v. New York City, 407 U. S. 203 227,239-243 Jacksonville Shipyards v. Per- due, 539 F. 2d 533 256,267,268 Jagnandan v. Giles, 379 F. Supp. 1178 6 James v. United States, 366 U S 213 307 Jeffers v. United States, 432 U. S. 137 165,171 Page Jefferson v. Hackney, 406 U.S. 535 460 Jenkins v. Averett, 424 F. 2d 1228 189 Jenness v. Fortson, 403 U. S. 431 181 Jimenez v. Weinberger, 417 U. S. 628 18 Johnson .v. Glick, 481 F. 2d 1028 189 Johnson v. New Jersey, 384 U. S. 719 242,243 Johnson v. Railway Express, 421 U. S. 454 367,368, 374, 375, 377, 379, 380 Johnson v. U. S. Postal Service, 497 F. 2d 128 75 Juidice v. Vail, 430 U. S. 327 903 Keeble v. United States, 412 U. S. 205 153 King v. Smith, 392 U. S. 309 419, 420 Kirby v. Illinois, 406 U. S. 682 121,124 Kirby v. Sturges, 510 F. 2d 397 110, 111, 113,117 Klein v. Nassau County Medical Center, 347 F. Supp. 496 449, 484 Knickerbocker Ice Co. v. Stewart, 253 U. S. 149 257 Kring v. Missouri, 107 U. S. 221 305,308 Kroger Grocery & Baking Co. v. Lutz, 299 U. S. 300 347 KVOS, Inc. v. Associated Press, 299 U. S. 269 181 Labor Union. See name of trade Lange, Ex parte, 18 Wall. 163 165 Leary v. United States, 395 U. S. 6 231 Lee v. State, 294 So. 2d 305 298 Leedom v. Kyne, 358 U. S. 184 413,414 Lego v. Twomey, 404 U. S. 477 227 Leland v. Oregon, 343 U. S. 790 202-205,228 Lemon v. Kurtzman, 403 U. S. 602 91 Lindsey v. Normet, 405 U. S. 56 478,479 XX TABLE OF CASES CITED Page Lindsey v. Washington, 301 U. S. 397 298,305,306 Linkletter v. Walker, 381 U. S. 618 242,246 Linmark Associates v. Willing-boro, 431 U. S. 85 487 Local. For labor union, see name of trade. Macias v. Finch, 324 F. Supp. 1252 431 Mackey v. United States, 401 U. S. 667 245-248 Maher v. Roe, 432 U. S. 464 442,447-449, 457, 460, 461, 521, 523 Maher Terminals, Inc. v. Far- rell, 548 F. 2d 476 273,278 Malloy v. South Carolina, 237 U. S. 180 293 Manson v. Brathwaite, 432 U. S. 98 246 Marine Stevedoring Corp. v. Oosting, 238 F. Supp. 78 259 Massachusetts Bd. of Retire- ment v. Murgia, 427 U. S. 307 457,458,470,478 Massachusetts Mutual Ins. Co. v. Ludwig, 426 U. S. 479 240 Mathews v. Diaz, 426 U. S. 67 7,10,20 Mathews v. Lucas, 427 U S 495 9 Mazer v. Stein, 347 U. S. 201 240 McAllister v. Magnolia Petro- leum, 357 U. S. 21 379 McClaine v. Rankin, 197 U. S. ,154 374,375 McCluny v. Silliman, 3 Pet. , 270 374,376 McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273 71, 72 McDonnell Douglas Corp. v. Green, 411 U. S. 792 71 McFarland v. American Sugar Rfg. Co., 241 U. S. 79 210 McGowan v. Maryland, 366 U. S. 420 22,90 McNutt v. General Motors Ac- ceptance Corp., 298 U. S. , 178 347 McRae v. United States, 137 U. S. App. D. C. 80 131 Page Meek v. Pittenger, 421 U. S. 349 343 Memorial Hospital v. Maricopa County, 415 U. S. 250 468, 474,475,488 Mercantile Nat. Bank v. Lang-deau, 371 U. S. 555 327 Meyer v. First Nat. Bank, 10 Idaho 175 330 Meyer v. Nebraska, 262 U. S. 390 186,476,477 Michigan v. Payne, 412 U. S. 47 245,246 Milanovitch v. United States, 365 U. S. 551 155 Miller v. State, 250 Ind. 338 25 Miller v. State, 332 So. 2d 65 310 Milliken v. Bradley, 418 U. S. 717 456 Missouri, K. & T. R. Co. v. May, 194 U. S. 267 480 Mobile, J. & K. C. R. Co. v. Tumipseed, 219 U. S. 35 230 Monroe v. Pape, 365 U. S. 167 189, 190 Moor v. Alameda County, 411 U. S. 693 190 Moran v. Horsky, 178 U. S. 205 382 Morey v. Commonwealth, 108 Mass. 433 166,168 Morissette v. United States, 342 U. S. 246 225,227 Morris v. Gressette, 432 U. S. 491 412,414 Morrison v. California, 288 U. S. 591 203 Morrison v. California, 291 U. S. 82 203,204,210,230 Morton v. Ruiz, 415 U. S. 199 425 Mullaney v. Wilbur, 421 U. S. 684 200,202, 205, 211-213, 216, 217, 219, 222, 223, 226, 227, 230, 237-240, 242, 246 Murdock v. Memphis, 20 Wall. 590 223 Murphy v. Florida, 421 U. S. 794 302,303 Nacirema Operating Co. v. Johnson, 396 U. S. 212 259,260 NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 345 TABLE OF CASES CITED XXI Page NAACP V. Button, 371 U. S. 415 487 NAACP v. New York, 413 U. S. 345 396,398,403 National Bank v. Colby, 21 Wall. 609 318 National Bank of Savannah v. Craven, 147 Ga. 753 330 NLRB v. Fant Milling Co., 360 U. S. 301 373 National Licorice Co. v. NLRB, 309 U. S. 350 373 National Motor Freight Assn, v. United States, 372 U. S. 246 342,343 Nebraska Press Assn. v. Stuart, 423 U. S. 1319 44,45 Neil v. Biggers, 409 U. S. 188 73, 99, 105-107, 113, 114, 118, 123-125 New York Dept, of Soc. Serv. v. Dublino, 413 U. S. 405 432, 447 Nielsen, In re, 131 U. S. 176 151, 166-168 North Carolina v. Pearce, 395 U. S. 711 155,165,166 Norwood v. Harrison, 413 U. S. 455 477,478 Oatis v. Crown Zellerbach Corp., 398 F. 2d 496 401 Ohio Bureau of Employment Serv. v. Hodory, 431 U. S. 471 22,419,427 Olmstead v. United States, 277 U. S. 438 127 Oregon v. Mathiason, 429 U. S. 492 129,160,246 Oregon ex rel. State Land Board v. Corvallis Co., 429 U. S. 363 196 Ortwein v. Schwab, 410 U. S. 656 470 O’Sullivan v. Felix, 233 U. S. 318 367,374 Overmyer Co. v. Loflin, 440 F. 2d 1213 401 Pacific Nat. Bank v. Mixter, 124 U. S. 721 318-321,328,329 Pacific States Box Co. v. White, 296 U. S. 176 349 Packard v. Banton, 264 U. S. 140 347 Page Palko v. Connecticut, 302 U. S. 319 34 Parker Seal Co. v. Cummins, 429 U. S. 65 86 Paton v. La Prade, 524 F. 2d 862 393 Patterson v. New York, 432 U. S. 197 245,246 Pearson v. Ecological Science Corp., 522 F. 2d 171 399,401 Pellegrino v. Nesbit, 203 F. 2d 463 395 Penn v. San Juan Hospital, 528 F. 2d 1181 393 Pennsylvania R. Co. v. O’Rourke, 344 U. S. 334 264 People v. Anderson, 389 Mich. 155 125,126,129-131,134 People v. Gould, 54 Cal. 2d 621 132 Pepper v. Litton, 308 U. S. 295 53 Perkins v. Matthews, 400 U.S. 379 495 Perkins v. Smith, 370 F. Supp. 134 11 Petersburg v. United States, 410 U. S. 962 505 Philadelphia Electric v. Anaconda American Brass, 43 F. R. D. 452 393,399 Philbrook v. Glodgett, 421 U. S. 707 409, 419, 420, 428, 430, 433 Pierce v. Society of Sisters, 268 U. S. 510 476,477 Pike v. Bruce Church, Inc., 397 U. S. 137 340,350,353 Pinkerton v. United States, 328 U. S. 640 148 Piper v. Chris-Craft Industries, 430 U. S. 1 . 54 Planned Parenthood of Missouri v. Danforth, 428 U. S. 52 455,473,480,485-487 Planters Loan & Sav. Bank v. Berry, 91 Ga. 264 321 Poelker v. Doe, 432 U. S. 519 462 Polar Ice Cream Co. v. An- drews, 375 U. S. 361 353 Police Dept, of Chicago v. Mosley, 408 U. S. 92 310 Powell v. Texas, 392 U. S. 514 228 XXII TABLE OF CASES CITED Page Powell v. West, 413 U. S. 901 496 Price v. Georgia, 398 U. S. 323 151,152 Prince v. United States, 352 U. S. 322 155 Proffitt v. Florida, 428 U. S. 242 289,295,304 Radzanower v. Touche Ross & Co., 426 U. S. 148 327 Railroad Telegraphers v. Rail- way Express, 321 U. S. 342 368 Rawlings v. Ray, 312 U. S. 96 368 Red Lion Broadcasting v. FCC, 395 U. S. 367 55, 76, 447 Reid v. Memphis Pub. Co., 521 F. 2d 512 75 Reubens v. Joel, 13 N. Y. 488 323 Reynolds v. Sims, 377 U. S. 533 488 Richmond v. United States, 422 U. S. 358 495,502 Riley v. Bendix Corp., 464 F. 2d 1113 75 Riley v. Bendix Corp., 330 F. Supp. 583 74,89 Rivera v. Delaware, 429 U. S. 877 205 Roberts v. Louisiana, 431 U. S. 633 902 Roberts v. Union Co., 487 F. 2d 387 393 Robinson v. First Nat. Bank of Plainview, 45 F. 2d 613 330 Rochin v. California, 342 U. S. 165 113 Roev. Ferguson, 515 F. 2d 279 443 Roe v. Norton, 422 U. S. 391 527 Roe v. Norton, 522 F. 2d 928 443 Roe v. Norton, 380 F. Supp. 726; 408 F. Supp. 660 449 Roe v. Wade, 410 U. S. 113 445-447, 449, 450, 453, 455, 457, 458, 461, 462, 468, 471-476, 478, 481, 483-488, 490, 520, 523-525 Runyon v. McCrary, 427 U. S. 160 367,374,375,377 Ryan Stevedoring Co. v. PanAtlantic S. S. Corp., 350 U. S. 124 262 St. Paul Mercury Indemnity v. Red Cab Co., 303 U. S. 283 346 Page San Antonio School Dist. v. Rodriguez, 411 U. S. 1 15, 459,470,471 Sanders v. United States, 373 U. S. 1 247 Sansone v. United States, 380 U. S. 343 153,231 Scheuer v. Rhodes, 416 U. S. 232 189 Schneckloth v. Bustamonte, 412 U. S. 218 248 Screws v. United States, 325 U. S. 91 189 Sea-Land Service v. Director of Workers’ Comp., 540 F. 2d 629 256,277 Sea-Land Service v. Director of Workers’ Comp., 552 F. 2d 985 278 SEC v. Chenery Corp., 332 U. S. 194 57 SEC v. National Securities, Inc., 393 U. S. 453 321 Selective Draft Law Cases, 245 U. S. 366 96 Serfass v. United States, 420 U. S.377 27 Service v. Dulles,354U.S.363 513 Shapiro v. Thompson, 394 U. S. 618 468,474,475,488 Share v. Air Properties G., 538 F. 2d 508 393 Shaw v. Garrison, 545 F. 2d 980 190,195 Shea v. Vialpando, 416 U. S. 251 420 Sherbert v. Verner, 374 U. S. .398 90,97,475,487-489 Sierra Club v. Morton, 405 U. S. 727 343 Simmons v. United States, 390 U. S. 377 105, 116, 121-123, 133, 153 Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26 342, 343 Singleton v. Wulff, 428 U. S. 106 454,455,478,485,486 Skidmore v. Swift & Co., 323 U. S. 134 425 Skinner v. Oklahoma ex reL Williamson, 316 U. S. 535 309, 472 TABLE OF CASES CITED XXIII Page Smith v. Bennett, 365 U. S. 708 455 Smith v. Coiner, 473 F. 2d 877 110, 111 Smith v. Organization of Foster Families, 431 U. S. 816 456 Smuck v. Hobson, 132 U. S. App. D. C. 372 396 Snow, In re, 120 U. S. 274 169 Snyder v. Harris, 394 U. S. 332 346 Snyder v. Massachusetts, 291 U. S. 97 202 Social Security Bd. v. Nierotko, 327 U. S. 358 424,425 Sosna v. Iowa, 419 U. S. 393 400 South Carolina v. Katzenbach, 383 U. S. 301 405, 410-412, 414, 415, 495, 502, 505, 506, 508, 517 Southern Pacific Co. V. Arizona ex rel. Sullivan, 325 U. S. 761 350 Southern Pacific Co. v. Jensen, 244 U. S. 205 257 Sparf v. United States, 156 U. S. 51 231 Speiser v. Randall, 357 U. S. 513 202,210,224,231 Spence v. Staras, 507 F. 2d 554 190,191 Spock v. David, 502 F. 2d 953 348 Sprogis v. United Air Lines, 444 F. 2d 1194 387,388 Sprogis v. United Air Lines, 517 F. 2d 387 389 Stanley v. Cox, 486 F. 2d 48 110 Starns v. Malkerson, 401 U. S. 985 3 State. See also name of State. State v. Cooper, 13 N. J. L. 361 158,168 State v. Dixon, 283 So. 2d 1 289 State v. Lafferty, 309 A. 2d 647 213-215,217,222 State v. Rumsey, 267 S. C. 236 902 State v. Whalen, 269 So. 2d 678 304 State Industrial Comm’n v. Nordenholt Corp., 259 U. S. 263 257 Page State Land Board v. Corvallis Co., 429 U. S. 363 196 Stevenson v. United States, 162 U. S. 313 231 Stockman v. John T. Clark & Son, 539 F. 2d 264 256, 268, 271, 276, 277, 281 Stokes v. People, 53 N. Y. 164 219 Stone v. Powell, 428 U. S. 465 248 Storer v. Brown, 415 U. S. 724 175, 177,178 Stovall v. Denno, 388 U. S. 293 99,104,113,118, 120, 121, 133, 242, 243 Stovall v. Denno, 355 F. 2d 731 121 Sugarman v. Dougall, 413 U. S. 634 7,9-11,13,15,17 Sullivan v. Little Hunting Park, 396 U. S. 229 191 Swain v. Pressley, 430 U. S. 372 90 Switchmen v. National Mediation Bd., 320 U. S. 297 501, 504 Takahashi v. Fish & Game Comm’n, 334 U. S. 410 10,13,16 Teamsters v. United States, 431 U. S. 324 82 Tedder v. State, 322 So. 2d 908 295 Tehan v. United States ex rel. Shott, 382 U. S. 406 242 Thermtron Products v. Her-mansdorfer, 423 U. S. 336 414 Thompson v. Missouri, 171 U. S. 380 293 Thompson v. Oklahoma, 429 U. S.1053 170 Tolbert v. Bragan, 451 F. 2d 1020 189 Tooahnippah v. Hickel, 397 U. S. 598 501 Tot v. United States, 319 U. S. 463 210,229,231 Townsend v. Swank, 404 U. S. 282 453 Trainor v. Hernandez, 431 U. S. 434 902 Truax v. Raich, 239 U. S. 33 12, 13,16 Tucker v. Salera, 424 U. S. 959 175,179,180 XXIV TABLE OF CASES CITED Page Twiggs v. West, Civ. No. 71-1106 (DC SC) 496-499,507, 513 United Air Lines v. Evans, 431 U. S. 553 82, 83 United Jewish Orgs. v. Carey, 430 U. S. 144 495 United States v. Agurs, 427 U. S. 97 38 United States v. Alexander, 152 U. S. App. D. C. 371 231 United States v. Ball, 163 U. S. 662 152,165 United States v. Beebe, 127 U. S. 338 382,383 United States v. Bell Telephone, 167 U. S. 224 382 United States v. Board of Supervisors, 429 U. S. 642 514 United States v. Des Moines Nav. & R. Co., 142 U. S. 510 382 United States v. Dinitz, 424 U. S. 600 28,31-33,35,152 United States v. Feola, 420 U. S. 671 322 United States v. Gaddis, 424 U. S. 544 155 United States v. Janis, 428 U. S. 433 113 United States v. Jenkins, 420 U. S. 358 28-31,36,165 United States v. Jorn, 400 U. S. 470 30,32,34,35,165 United States v. Kraus, 409 U. S. 434 470 United States v. Larionoff, 431 U. S. 864 902,903 United States v. Lovasco, 431 U. S. 783 113 United States v. Martin Linen Supply Co., 430 U. S. 564 30, 36,166 United States v. Mersky, 361 U. S. 431 425 United States v. Mine Workers, 330 U. S. 258 500 United States v. Nashville, C. & St. L. R. Co., 118 U. S. 120 382 United States v. National Assn, of Securities Dealers, 422 U. S. 694 52,53 Page United States v. Nixon, 418 U. S. 513 513 United States v. Orito, 413 U. S. 139 910 United States v. Perez, 9 Wheat. 579 31,36,152 United States v. Romano, 382 U. S. 136 229 United States v. Seeger, 380 U. S.163 90 United States v. Summerlin, 310 U. S. 414 382 United States v. Universal C. I. T. Credit Corp., 344 U. S. 218 171 United States v. Wade, 388 U. S. 218 111, 118- 120, 130, 133, 134, 243 United States v. Washington, 431 U. S. 181 129,246 United States v. Wilson, 420 U. S. 332 29,36,150,155,165 United States Cas. Co. v. Taylor, 64 F. 2d 521 396 V. v. New York City, 407 U. S. 203 227,239-243 Van Reed v. People’s Nat. Bank, 198 U. S. 554 319,330,331 Victory Carriers, Inc. v. Law, 404 U. S. 202 259,260 Vitarelli v. Seaton, 359 U. S. 535 513 Vlandis v. Kline, 412 U. S. 441 3 Voris v. Eikel, 346 U. S. 328 268 Wade v. Hunter, 336 U. S. 684 34 Waller v. Florida, 397 U. S. 387 146,151,164,168 Walz v. Tax Comm’n, 397 U. S. 664 91 Ward v. Illinois, 431 U. S. 767 902 Warth v. Seldin, 422 U. S. 490 341- 343 Washington v. Davis, 426 U. S. 229 460 Washington v. W. C. Dawson & Co., 264 U. S. 219 257 Weber v. Aetna Cas. & Surety Co., 406 U. S. 164 9 Webster v. Fall, 266 U. S. 507 181 Welsh v. United States, 398 U. S. 333 90 Westby v. Doe, 420 U. S. 968 449 TABLE OF CASES CITED XXV Page Weyerhaeuser Co. v. Gilmore, 528 F. 2d 957 265,268 Whalen v. Roe, 429 U. S. 589 473 Williams v. Southern Union Gas Co., 529 F. 2d 483 75 Williams v. United States, 401 U. S. 646 245-248 Williamson v. Lee Optical, 348 U. S. 483 479 Winship, In re, 397 U. S. 358 204, 206, 208, 216, 221, 223, 225, 227, 239, 240, 242, ■244 Winters v. New York, 333 U. S. 507 223 Wisconsin v. Yoder, 406 U. S. 205 90 Wolpe v. Poretsky, 79 U. S. App. D. C. 141 396 Page Wood v. Carpenter, 101 U. S. 135 401 Wright v. Stone Container Corp., 524 F. 2d 1058 393 Wulff v. Singleton, 508 F. 2d 1211 484,520 Yick Wo v. Hopkins, 118 U. S. 356 13 Young v. Southwestern S. & L. Assn., 509 F. 2d 140 90 Younger v. Harris, 401 U. S. 37 527 Zahn v. International Paper Co., 414 U. S. 291 346 Zenith Labs. v. Carter-Wallace, Inc., 530 F. 2d 508 393 Zorach v. Clauson, 343 U. S. 306 90 Zuber v. Allen, 128 U. S. App. D. C. 297 396 CASES ADJUDGED IN THE SUPBEME COUBT OF THE UNITED STATES AT OCTOBER TERM, 1976 NYQUIST, COMMISSIONER OF EDUCATION OF NEW YORK, et al. v. MAUCLET et al. APPEAL FROM THE UNITED STATES DISTRICT COURTS FOR THE WESTERN AND EASTERN DISTRICTS OF NEW YORK No. 76-208. Argued March 22, 1977—Decided June 13, 1977 New York statutory provision that bars certain resident aliens from state financial assistance for higher education held to violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 7-12. (a) State classifications based on alienage are “inherently suspect and subject to close judicial scrutiny.” Graham v. Richardson, 403 U. S. 365, 372. P. 7. (b) The statute discriminates against a class and is subject to strict scrutiny since it is directed at aliens and only aliens are harmed by it even though its bar against them is not absolute in that those who have applied for citizenship or those not qualified to apply who have filed statements of intent may participate in the assistance programs. Graham v. Richardson, supra; cf. Mathews v. Lucas, 427 U. S. 495, 504-505, n. 11. Pp. 7-9. (c) Any incentive through the statute for an alien to become naturalized is not a proper state concern, since control over immigration and naturalization is exclusively a federal function. P. 10. (d) The naturalization incentive (even if that could be accepted, arguendo, as a justification) or the further justification asserted by appellants, viz., that the financial assistance program is confined to actual or potential voters, thus enhancing the educational level of the electorate, cannot be deemed adequate to support the statute’s ban. If the 1 2 OCTOBER TERM, 1976 Opinion of the Court 432U.S. encouragement of naturalization through such programs were adequate, every discrimination against aliens could be similarly justified. And the claimed interest in educating the electorate would not be frustrated by including resident aliens in the assistance program. Pp. 10-12. 406 F. Supp. 1233, affirmed. Blackmun, J., delivered the opinion of the Court, in which Brennan, White, Marshall, and Stevens, JJ., joined. Burger, C. J., filed a dissenting opinion, post, p. 12. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Stewart, J., joined, post, p. 15. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 17. Judith A. Gordon, Assistant Attorney General of New York, argued the cause for appellants. With her on the briefs were Louis J. Lefkowitz, Attorney General, and Samuel A. HirshowitZf First Assistant Attorney General. Michael Davidson argued the cause for appellee Mauclet. With him on the brief was Kevin Kennedy. Gary J. Greenberg argued the cause and filed a brief for appellee Rabinovitch. Mr. Justice Blackmun delivered the opinion of the Court. New York, by statute, bars certain resident aliens from state financial assistance for higher education. N. Y. Educ. Law § 661 (3) (McKinney Supp. 1976). This litigation presents a constitutional challenge to that statute. I New York provides assistance, primarily in three forms, to students pursuing higher education. The first type is the Regents college scholarship. These are awarded to high school graduates on the basis of performance in a competitive examination. §§ 605 (1) and 670. Currently, in the usual case, a recipient is entitled to $250 annually for four years of study without regard to need. §§ 670 (2) and (3)(b).1 The 1 There also are other special competitive awards: Regents professional education in nursing scholarships, N. Y. Educ. Law §§ 605 (2) and 671 NYQUIST v. MAUCLET 3 1 Opinion of the Court second and chief form of aid is the tuition assistance award. These are noncompetitive; they are available to both graduate and undergraduate students “enrolled in approved programs and who demonstrate the ability to complete such courses.” §§ 604 (1) and 667 (1). The amount of the award depends on both tuition and income. The ceiling on assistance was $600, although it has been increased for undergraduates to $1,500. §§ 667 (3) and (4). The third form of assistance is the student loan. §§ 680-684. The loan is guaranteed by the State; a borrower meeting certain income restrictions is entitled to favorable interest rates and generally to an interest-free grace period of at least nine months after he completes or terminates his course of study. §§ 680, 682 (2) and (3).2 There are several general restrictions on eligibility for participation in any of these programs. § 661. For example, there is a modest durational residency requirement. § 661 (5).3 The instant dispute, however, concerns only § 661 (3). That subsection provides: “Citizenship. An applicant (a) must be a citizen of the United States, or (b) must have made application (McKinney Supp. 1976); Regents professional education in medicine or dentistry scholarships, §§605 (3) and 672; Regents physician shortage scholarships, §§ 605 (4) and 673; Regents war veteran scholarships, §§ 605 (5) and 674; and Regents Cornell University scholarships, § 605 (6). 2 The loan program is largely subsidized by the Federal Government. See 20 U. S. C. §§ 1071 to 1087-2 (1970 ed. and Supp. V). (In fiscal 1976 the federal expenditure for New York’s loan program was $67,208,000 and the state contribution was $9,466,000. Brief for Appellants 8 n. * and 17 n. *.) Although it appears that federal administrators have not lodged objections to the State’s practice of disqualifying certain resident aliens, see App. 82, the federal standards would make eligible for assistance an alien student who “is in the United States for other than a temporary purpose and intends to become a permanent resident thereof.” 45 CFR § 177.2 (a) (1976). 3 This requirement is not the subject of challenge here. See Vlandis v. Kime, 412 U. S. 441 (1973); Starns v. Malkerson, 401 U. S. 985 (1971), aff’g 326 F. Supp. 234 (Minn. 1970). 4 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. to become a citizen, or (c) if not qualified for citizenship, must submit a statement affirming intent to apply for United States citizenship as soon as he has the qualifications, and must apply as soon as eligible for citizenship, or (d) must be an individual of a class of refugees paroled by the attorney general of the United States under his parole authority pertaining to the admission of aliens to the United States.”4 The statute obviously serves to bar from the assistance programs the participation of all aliens who do not satisfy its terms. Since many aliens, such as those here on student visas, may be precluded by federal law from establishing a permanent residence in this country, see, e. g., 8 U. S. C. § 1101 (a)(15)(F)(i); 22 CFR §41.45 (1976), the bar of §661 (3) is of practical significance only to resident aliens. The Court has observed of this affected group: “Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society.” In re Griffiths, 413 U. S. 717, 722 (1973). II Appellee Jean-Marie Mauclet is a citizen of France and has lived in New York since April 1969. He has been a permanent resident of the United States since November of that year. He is married to a United States citizen and has a child by that marriage. The child is also a United States citizen. App. 49. Mauclet by affidavit stated: “Although I am presently qualified to apply for citizenship and intend to reside 4 Section 661 (3) replaced former § 602 (2) of the State’s Education Law, in effect at the times appellees’ complaints were filed. 1974 N. Y. Laws, c. 942. Clause (d) was added after the commencement of the suits. 1975 N, Y. Laws, c. 663, § 1. Since clause (d) serves to make a class of aliens eligible for aid without regard to citizenship or intent to apply for citizenship, its inclusion serves to undermine the State’s arguments as to the purposes served by the first three clauses. See n. 13, infra. NYQUIST v. MAUCLET 5 1 Opinion of the Court permanently in the United States, I do not wish to relinquish my French citizenship at this time.” 5 Id., at 50. He applied for a tuition assistance award to aid in meeting the expenses of his graduate studies at the State University of New York at Buffalo. Because of his refusal to apply for United States citizenship, his application was. not processed. Id., at 49-50. Appellee Alan Rabinovitch is a citizen of Canada. He was admitted to this country in 1964 at the age of nine as a permanent resident alien. He is unmarried and, since his admission, has lived in New York with his parents and a younger sister, all of whom are Canadian citizens. He registered with Selective Service on his 18th birthday. He graduated in 1973 from the New York public school system. Id., at 68, 71. As a result of a commendable performance on the competitive Regents Qualifying Examinations, Rabinovitch was informed that he was qualified for, and entitled to, a Regents college scholarship and tuition assistance. He later was advised, however, that the offer of the scholarship was withdrawn since he intended to retain his Canadian citizenship. Id., at 69, 25. Rabinovitch entered Brooklyn College without financial aid from the State. He states that he “does not intend to become a naturalized American, but . . . does intend to continue to reside in New York.” Id., at 65. Mauclet and Rabinovitch each brought suit in United States District Court (Mauclet in the Western District of New York and Rabinovitch in the Eastern District), alleging that the citizenship bar of § 661 (3) was unconstitutional. The same three-judge court was convened for each of the cases. Subsequently, it was ordered that the cases be heard together. App. 45. After cross motions for summary judgment, the District Court in a unanimous opinion ruled in appellees’ favor. It held that § 661 (3) violated the Equal Protection Clause of the Fourteenth Amendment in that the citizenship 5 In order to become a United States citizen, Mauclet would be required to renounce his French citizenship. 8 U. S. C. § 1448 (a). 6 OCTOBER TERM, 1976 Opinion of the Court 432U.S. requirement served to discriminate unconstitutionally against resident aliens.6 406 F. Supp. 1233 (WDNY and EDNY 1976). Its enforcement was enjoined in separate judgments. App. 103, 106. Appellants—the various individuals and corporate entities responsible for administering the State’s educational assistance programs—challenge this determination.7 We noted probable jurisdiction. 429 U. S. 917 (1976). 6 Other courts also have held that discrimination against resident aliens in the distribution of educational assistance is impermissible. See, e. g., Chapman v. Gerard, 456 F. 2d 577 (CA3 1972); Jagnandan v. Giles, 379 F. Supp. 1178 (ND Miss. 1974), appealed on damages and aff’d, 538 F. 2d 1166 (CA5 1976), cert, pending, No. 76-832. 7 Appellants also argue that the District Court should not have reached the question of the applicability of § 661 (3) to the loan program because appellee Rabinovitch, who alone challenged this aspect of the assistance program, had not been denied a loan. Henoe, appellants assert, he lacks standing. Early in the litigation, however, Rabinovitch submitted an unrebutted affidavit to the effect that he believed that he “may require student loans to help cover the cost of” his education and that he was “barred from receiving a student loan simply because of [his] status as an alien.” App. 71. Indeed, appellants conceded in the District Court that any application from Rabinovitch for a loan would be refused because of §661 (3). 406 F. Supp., at 1235. It is clear, therefore, that Art. Ill adverseness existed between the parties and that the dispute is a concrete one. The only obstacle to standing, under the circumstances, would arise from prudential considerations. And we see no reason to postpone resolution of the dispute. Rabinovitch has been denied other forms of aid and little is to be served by requiring him now to go through the formality of submitting an application for a loan, in light of the certainty of its denial. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 264 (1977). Until oral argument, appellants suggested no reason why the loan program should differ from the other forms of assistance. Tr. of Oral Arg. 7. In the absence of a more timely suggestion supporting a distinction among the forms of aid, we think that nothing is to be gained by adjudicating the validity of § 661 (3) with regard to only two of the three primary assistance programs. After all, the single statutory proscription applies with equal force to all the programs, NYQUIST v. MAUCLET 7 1 Opinion of the Court III The Court has ruled that classifications by a State that are based on alienage are “inherently suspect and subject to close judicial scrutiny.” Graham v. Richardson, 403 U. S. 365, 372 (1971). See Examining Board n. Flores de Otero, 426 U. S? 572, 601-602 (1976); In re Griffiths, 413 U. S., at 721; Sugarman v. Dougall, 413 U. S. 634, 642 (1973). In undertaking this scrutiny, “the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn.” Examining Board v. Flores de Otero, 426 U. S., at 605. See In re Griffiths, 413 U. S., at 721-722. Alienage classifications by a State that do not withstand this stringent examination cannot stand.8 Appellants claim that § 661 (3) should not be subjected to such strict scrutiny because it does not impose a classifica 8 In Mathews v. Diaz, 426 U. S. 67 (1976), the Court applied relaxed scrutiny in upholding the validity of a federal statute that conditioned an alien’s eligibility for participation in a federal medical insurance program on the satisfaction of a durational residency requirement, but imposed no similar burden on citizens. The appellants can draw no solace from the case, however, because the Court was at pains to emphasize that Congress, as an aspect of its broad power over immigration and naturalization, enjoys rights to distinguish among aliens that are not shared by the States. Id., at 84-87. See Hampton v. Mow Sun Wong, 426 U. S. 88, 100-101 (1976); De Canas v. Bica, 424 U. S. 351, 358 n. 6 (1976). It is perhaps worthy of note that the Medicare program under consideration in Diaz granted a permanent resident alien eligibility when he had resided in the United States for five years. Five years’ residence is also the generally required period under federal law before an alien may seek to be naturalized. 8 U. S. C. § 1427 (a). Yet, ironically, this is precisely the point at which, in New York, a resident must petition for naturalization or, irrespective of declared intent, lose his eligibility for higher education assistance. 8 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. tion based on alienage.9 Aliens who have applied for citizenship, or, if not qualified for it, who have filed a statement of intent to apply as soon as they are eligible, are allowed to participate in the assistance programs. Hence, it is said, the statute distinguishes “only within the ‘heterogeneous’ class of aliens” and “does not distinguish between citizens and aliens vel non.” Brief for Appellants 20.10 Only statutory classifications of the latter type, appellants assert, warrant strict scrutiny. Graham v. Richardson, supra, undermines appellants’ position. In that case, the Court considered an Arizona statute that imposed a durational residency requirement for welfare benefits on aliens but not on citizens. Like the New York statute challenged here, the Arizona statute served to discriminate only within the class of aliens: Aliens who met the durational residency requirement were entitled to welfare 9 Appellants also seem to assert that strict scrutiny should not be applied because aid to education does not deny an alien “access to the necessities of life.” Brief for Appellants 21. They are joined in this view by The Chief Justice in dissent. Suffice it to say, the statutory statement of purpose for the aid programs reflects the State’s contrary position: “In a world of unmatched scientific progress and technological advance, as well as of unparalleled danger to human freedom, learning has never been more crucial to man’s safety, progress and individual fulfillment. In the state and nation higher education no longer is a luxury; it is a necessity for strength, fulfillment and survival.” 1961 N. Y. Laws, c 389 § 1(a). And, in any event, the Court noted in Graham n. Richardson, 403 U. S. 365, 376 (1971), that classifications based on alienage “are inherently suspect and are therefore subject to strict scrutiny whether or not a fundamental right is impaired.” 10 The District Court dealt abruptly with appellants’ contention: “This argument defies logic. Those aliens who apply, or agree to apply when eligible, for citizenship are relinquishing their alien status. Because some aliens agree under the statute’s coercion to change their status does not alter the fact that the classification is based solely on alienage.” 406 F. Supp., at 1235. NYQUIST v. MAUCLET 9 1 Opinion of the Court benefits. The Court nonetheless subjected the statute to strict scrutiny and held it unconstitutional. The important points are that § 661 (3) is directed at aliens and that only aliens are harmed by it. The fact that the statute is not an absolute bar does not mean that it does not discriminate against the class.11 Cf. Mathews v. Lucas, 427 U. S. 495, 504-505, n. 11 (1976);12 Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 169, 172 (1972). Appellants also assert that there are adequate justifications for § 661 (3). First, the section is said to offer an incentive for aliens to become naturalized. Second, the restriction on 11 Our Brother Rehnquist argues in dissent that strict scrutiny is inappropriate because under § 661 (3) a resident alien can voluntarily withdraw from disfavored status. But this aspect of the statute hardly distinguishes our past decisions. By the logic of the dissenting opinion, the suspect class for alienage would be defined to include at most only those who have resided in this country for less than five years, since after that time, if not before, resident aliens are generally eligible to become citizens. 8 U. S. C. § 1427 (a). The Court has never suggested, however, that the suspect class is to be defined so narrowly. In fact, the element of voluntariness in a resident alien’s retention of alien status is a recognized element in several of the Court’s decisions. For example, the Court acknowledged that In re Griffiths, 413 U. S. 717 (1973), involved an appellant who was eligible for citizenship, but who had not filed a declaration of intention to become a citizen, and had “no present intention of doing so.” Id., 718 n. 1. And, insofar as the record revealed, nothing precluded the appellees in Sugarman v. Dougall, 413 U. S. 634 (1973), from applying for citizenship. Id., at 650 (Rehnquist, J., dissenting). Mr. Justice Rehnquist argued in dissent there, just as he does here today, that strict scrutiny was inappropriate in those cases because there was nothing to indicate that the aliens’ status “cannot be changed by their affirmative acts.” Id., at 657. Nonetheless, the Court applied strict scrutiny in the cases. We see no reason to depart from them now. 12 The footnote reads in part: “That the statutory classifications challenged here discriminate among illegitimate children does not mean, of course, that they are not also properly described as discriminating between legitimate and illegitimate children.” 10 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. assistance to only those who are or will become eligible to vote is tailored to the purpose of the assistance program, namely, the enhancement of the educational level of the electorate. Brief for Appellants 22-25. Both justifications are claimed to be related to New York’s interest in the preservation of its “political community.” See Sugarman v. Dougall, 413 U. S., at 642-643, 647—649; Dunn v. Blum st ein, 405 U. S. 330, 344 (1972). The first purpose offered by the appellants, directed to what they describe as some “degree of national affinity,” Brief for Appellants 18, however, is not a permissible one for a State. Control over immigration and naturalization is entrusted exclusively to the Federal Government, and a State has no power to interfere. U. S. Const., Art I, § 8, cl. 4. See Mathews v. Diaz, 426 U. S. 67, 84-85 (1976); Graham v. Richardson, 403 U. S., at 376-380; Takahashi v. Fish & Game Comm’n, 334 U. S. 410, 419 (1948). But even if we accept, arguendo, the validity of the proffered justifications, we find them inadequate to support the ban.13 13 In support of the justifications offered for §661 (3), appellants refer to a statement of purpose in legislation adopted in 1961 that substantially amended the State’s aid programs. 1961 N. Y. Laws, c. 389, § 1. But the statement speaks only in general terms of encouraging education so as “to provide the broad range of leadership, inventive genius, and source of economic and cultural growth for oncoming generations,” § 1 (a), and of developing fully a “reservoir of talent and future leadership,” § 1 (c)— purposes that would be served by extending aid to resident aliens as well as to citizens—and hardly supports appellants in clear and unambiguous terms. Moreover, the statutory discrimination against aliens with regard to certain Regents scholarships dates from long before. 1920 N. Y. Laws, c. 502, § 1. And the very 1961 legislation on which appellants rely abolished the statutory disqualification of aliens in favor of an administrative rule. 1961 N. Y. Laws, c. 391, §§ 2 and 18. See also §§ 7, 14, and 19. In fact, it appears that the state administrators of the aid programs did not find the purposes in the 1961 legislation that appellants urge, since between 1961 and 1969, when the precursor of § 661 (3) was NYQUIST v. MAUCLET 11 1 Opinion of the Court In Sugarman v. Dougall, 413 U. S., at 642, the Court recognized that the State’s interest “in establishing its own form of government, and in limiting participation in that government to those who are within ‘the basic conception of a political community’ ” might justify some consideration of alienage. But as Sugarman makes quite clear, the Court had in mind a State’s historical and constitutional powers to define the qualifications of voters,14 or of “elective or important nonelective” officials “who participate directly in the formulation, execution, or review of broad public policy.” Id., at 647. See id., at 648. In re Griffiths, decided the same day, reflects the narrowness of the exception. In that case, despite a recognition of the vital public and political role of attorneys, the Court found invalid a state-court rule limiting the practice of law to citizens. 413 U. S., at 729. Certainly, the justifications for § 661 (3) offered by appellants sweep far beyond the confines of the exception defined in Sugarman. If the encouragement of naturalization through these programs were seen as adequate, then every discrimination against aliens could be similarly justified. The exception would swallow the rule. Sugarman clearly does not tolerate that result. Nor does the claimed interest in educating the electorate provide a justification; although such education is a laudable objective, it hardly would be frustrated by including resident aliens, as well as citizens, in the State’s assistance programs.15 adopted, resident aliens were allowed to receive tuition assistance awards. Brief for Appellants 15. 14 See also Perkins n. Smith, 370 F. Supp. 134 (Md. 1974), summarily aff’d, 426 U. S. 913 (1976). 15 Although the record does not reveal the number of aliens who are disqualified by §661 (3), there is a suggestion that the number may be exceedingly small. See Brief for Appellee Mauclet 9 n. 4. Indeed, when asked about the cost of including aliens, appellants conceded at oral argument that “we may not be speaking about very much.” Tr. of Oral 12 OCTOBER TERM, 1976 Burger, C. J., dissenting 432 U. S. Resident aliens are obligated to pay their full share of the taxes that support the assistance programs. There thus is no real unfairness in allowing resident aliens an equal right to participate in programs to which they contribute on an equal basis. And although an alien may be barred from full involvement in the political arena, he may play a role—perhaps even a leadership role—in other areas of import to the community. The State surely is not harmed by providing resident aliens the same educational opportunity it offers to others. Since we hold that the challenged statute violates the Fourteenth Amendment’s equal protection guarantee, we need not reach appellees’ claim that it also intrudes upon Congress’ comprehensive authority over immigration and naturalization. See Graham v. Richardson, 403 U. S., at 378; Truax v. Raich, 239 U. S. 33, 42 (1915). The judgments of the District Court are affirmed. It. is so ordered. Mr. Chief Justice Burger, dissenting. I join Mr. Justice Rehnquist’s and Mr. Justice Powell’s dissenting opinions, but I add this comment to point out yet other significant differences between this case and our prior cases involving alienage-based classifications. With one exception, the prior cases upon which the Court purports to rely involved statutes which prohibited aliens from engaging in certain occupations or professions, thereby impairing their ability to earn a livelihood. See, e. g., Examining Board v. Flores de Otero, 426 U. S. 572 (1976) (Puerto Arg. 6. Thus, it appears that the inclusion of resident aliens in the assistance programs will have an insubstantial impact on the cost of the programs. And, in any event, the suggestion that the State can favor citizens over aliens in the distribution of benefits was largely rejected in Graham v. Richardson, supra. NYQUIST v. MAUCLET 13 1 Burger, C. J., dissenting Rico statute permitted only United States citizens to practice as private civil engineers); In re Griffiths, 413 U. S. 717 (1973) (membership in state bar limited to citizens); Sugarman n. Dougall, 413 U. S. 634 (1973) (participation in State’s competitive civil service limited to citizens); Takahashi v. Fish& GameComm’n, 334 U. S. 410 (1948) (state statute denied fishing license to persons “ineligible to citizenship”) ; Truax v. Raich, 239 U. S. 33 (1915) (state constitution required employers to hire “not less than eighty (80) per cent qualified electors or native-born citizens of the United States”); Yick Wo v. Hopkins, 118 U. S. 356 (1886) (city ordinance discriminatorily enforced against aliens so as to prevent Chinese subjects, but not United States citizens, from operating laundries within the city). The only other case striking down a classification on the basis of alienage, Graham v. Richardson, 403 U. S. 365 (1971), involved the denial of welfare benefits essential to sustain life for aliens, while needy citizens were given such benefits. The Court has noted elsewhere the crucial role which such benefits play in providing the poor with “means to obtain essential food, clothing, housing, and medical care.” Goldberg v. Kelly, 397 U. S. 254, 264 (1970) (footnote omitted). In this case the State is not seeking to deprive aliens of the essential means of economic survival. Rather, pursuant to its broad power to regulate its education system, the State has chosen to provide some types of individuals—those it considers most likely to provide a long-range return to the local and national community—certain added benefits to facilitate participation in its system of higher education. The State is certainly not preventing aliens from obtaining an education, and indeed it is clear that appellees may attend New York colleges and universities on an equal footing with citizens. However, beyond that, the State has provided certain economic incentives to its own citizens to induce them to pursue higher studies, which in the long run will be a benefit to the 14 OCTOBER TERM, 1976 Burger, C. J., dissenting 432 U. S. State. The State has not deemed such incentives as necessary or proper as to those aliens who are unwilling to declare their commitment to the community in which they reside by declaring their intent to acquire citizenship. Such simple declaration is all that the statute requires. In my view, the Constitution of the United States allows States broad latitude in carrying out such programs. Where a fundamental personal interest is not at stake—and higher education is hardly that—the State must be free to exercise its largesse in any reasonable manner. New York, like most other States, does not have unlimited funds to provide its residents with higher education services; it is equally clear that the State has every interest in assuring that those to whom it gives special help in obtaining an education have or declare some attachment indicating their intent to remain within the State to practice their special skills. It has no interest in providing these benefits to transients from another country who are not willing to become citizens. The line drawn by the State is not a perfect one—and few lines can be—but it does provide a rational means to further the State’s legitimate objectives. Resident individuals who are citizens, or who declare themselves committed to the idea of becoming American citizens, are more likely to remain in the State of New York after their graduation than are aliens whose ties to their country of origin are so strong that they decline to sever them in order to secure these valuable benefits. I therefore conclude that the State of New York has not acted impermissibly in refusing to dispense its limited tax revenues to give assistance to aliens who by clear implication reject the opportunity to become citizens of the United States. Beyond the specific case, I am concerned that we not obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship. If a State desires—and has the means—nothing in the United States Constitution prevents it from voluntarily giving NYQUIST v. MAUCLET 15 1 Powell, J., dissenting scholarships to aliens, even to those who reject United States citizenships. But nothing heretofore found in the Constitution compels a State to apply its finite resources to higher education of aliens who have demonstrated no permanent attachment to the United States and who refuse to apply for citizenship. Mr. Justice Powell, with whom The Chief Justice and Mr. Justice Stewart join, dissenting. I am persuaded, for the reasons set forth in Mr. Justice Rehnquist’s dissent, that New York’s scheme of financial assistance to higher education does not discriminate against a suspect class. The line New York has drawn in this case is not between aliens and citizens, but between aliens who prefer to retain foreign citizenship and all others. “The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” San Antonio School Dist. n. Rodriguez, 411 U. S. 1,28 (1973). Our prior cases dealing with discrimination against all aliens as a class, In re Griffiths, 413 U. S. 717 (1973); Sugarman v. Dougall, 413 U. S. 634 (1973), and against subclasses of aliens without regard to ability or willingness to acquire citizenship, Graham v. Richardson, 403 U. S. 365 (1971), do not justify the application of strict judicial scrutiny to the legislative scheme before us today.* *The Court’s reliance on the personal status of the appellant in In re Griffiths is misplaced. Our observation that Griffiths herself was eligible for citizenship but did not intend to apply, 413 U. S., at 718 n. 1, was hardly more than a factual “aside.” The challenge in that case was to 16 OCTOBER TERM, 1976 Powell, J., dissenting 432 U. S. I also agree with Mr. Justice Rehnquist that the line New York has drawn in extending scholarship assistance in higher education is a rational one. I see no basis for the Court’s statement that offering incentives to resident alien scholars to become naturalized “is not a permissible [purpose] for a State.” Ante, at 10. In my view, the States have a substantial interest in encouraging allegiance to the United States on the part of all persons, including resident aliens, who have come to live within their borders. As the New York Legislature declared in enacting a predecessor to the present financial assistance scheme: “The future progress of the state and nation and the general welfare of the people depend upon the individual development of the maximum number of citizens to provide the broad range of leadership, inventive genius, and source of economic and cultural growth for oncoming generations.” 1961 N. Y. Laws, c. 389, § 1 (a). As long as its program neither discriminates “on the basis of alienage,” Graham v. Richardson, supra, at 372, nor conflicts with federal immigration and naturalization policy, it is my view that New York legitimately may reserve its scholarship assistance to citizens, and to those resident aliens who a Connecticut Rule of Court that flatly required an applicant for admission to the bar to be a citizen of the United States. Neither eligibility for naturalization nor intent to apply was relevant under the Connecticut scheme. There was no question that Griffiths had standing to challenge a classification against all aliens, just as Mauclet and Rabinovitch unquestionably have standing to challenge the classification before us today. Yet because the scheme in In re Griffiths “totally exclud[ed] aliens from the practice of law,” id., at 719, we had no occasion in that case to consider whether a more narrowly tailored rule would be permissible. Had we done so, we would have confronted the additional question, not presented here, whether the exclusion improperly burdened the right to follow a chosen occupation. Cf. Takahashi v. Fish & Game Comm’n, 334 U. S. 410 (1948); Truax v. Raich, 239 U. S. 33 (1915). NYQUIST v. MAUCLET 17 1 Rehnquist, J., dissenting declare their intention to become citizens, of both the Nation and the State. Mr. Justice Rehnquist, with whom The Chief Justice joins, dissenting. I am troubled by the somewhat mechanical application of the Court’s equal protection jurisprudence to this case. I think one can accept the premise of Graham v. Richardson, 403 U. S. 365 (1971); In re Griffiths, 413 U. S. 717 (1973); and Sugarman v. Dougall, 413 U. S. 634 (1973), and therefore agree with the Court that classifications based on alienage are inherently suspect, but nonetheless feel that this case is wrongly decided. In those cases, the reason postulated for the elevation of alienage classifications to strict scrutiny was directly related to the express exclusion of aliens found in the State’s classification. Here, however, we have a significantly different case. The State’s classification trenches not at all upon the sole reason underlying the strict scrutiny afforded alienage classifications by this Court. Graham v. Richardson is, of course, the starting point of analysis, as it was the first case to explicitly conclude that alienage classifications, like those based on race or nationality, would be subject to strict scrutiny when challenged under the Equal Protection Clause of the Fourteenth Amendment. Graham reasoned, 403 U. S., at 372: “Aliens as a class are a prime example of a 'discrete and insular’ minority (see United States v. Carolene Products Co., 304 U. S. 144, 152-153, n. 4 (1938)) for whom such heightened judicial solicitude is appropriate.” It is clear, therefore, that the reason alienage classifications receive heightened judicial scrutiny is because aliens, qua aliens, are a “discrete and insular” minority. See also Sugarman v. Dougall, supra, at 642. Presumptively, such a minority group, like blacks or Orientals, is one identifiable by 18 OCTOBER TERM, 1976 Rehnquist, J., dissenting 432U.S. a status over which the members are powerless. Cf. Jimenez v. Weinberger, 417 U. S. 628, 631 (1974). And it is no doubt true that all aliens are, at some time, members of a discrete and insular minority in that they are identified by a status which they are powerless to change until eligible to become citizens of this country. Since, as the Court notes, federal law generally requires five years’ residence by aliens lawfully admitted for permanent residence as a prerequisite to the seeking of naturalization, 8 U. S. C. § 1427 (a), aliens residing in this country necessarily are subject to a period of time during which they must bear this status of an “alien.” 1 If a classification, therefore, places aliens in one category, and citizens in another, then, thereafter, every entering resident alien must pass through a period of time in this country during which he falls into the one category and 1 Title 8 U. S. C. § 1427 (a) allows application for naturalization upon the following conditions: “No person, except as otherwise provided in this subchapter, shall be naturalized unless such petitioner, (1) immediately preceding the date of filing his petition for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State in which the petitioner filed the petition for at least six months, (2) has resided continuously within the United States from the date of the petition up to the time of admission to citizenship, and (3) during all the period referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.” Section 1430 (a) establishes a three-year residency requirement for aliens whose spouse is a citizen of the United States. See also 8 U. S. C. § 1434. Sections 1430 (b), (c), and (d) establish special categories where no prior residence in this country is required. They constitute de minimis exceptions, and may be properly ignored in considering alienage classifications. 1 NYQUIST v. MAUCLET Rehnquist, J., dissenting 19 not the other. Nothing except time can remove him from his identified status as an “alien” and from whatever associated disabilities the statute might place on one occupying that status. In this sense, it is possible to view aliens as a discrete and insular minority, since they are categorized by a factor beyond their control. The prior alienage cases from this Court, utilizing strict scrutiny to strike down state statutes, all dealt with statutes where the line drawn necessarily suffered that infirmity; in all of those cases, the line drawn necessarily left incoming resident aliens afflicted with the disability for some period of time. Nothing except the passage of time could remove the alien from the classification and the disability. The statutes, therefore, involved the precise infirmity which led this Court to accord aliens “suspect classification” treatment: The line drawn by the legislature was drawn on the basis of a status, albeit temporary, that the included members were powerless to change.2 While the majority seems to view Graham v. Richardson as somehow different, ante, at 8—9, it is clear that the statute involved in that case suffered from the same weakness. By making aliens, but not citizens, await a durational residency requirement, aliens coming into the State were, because of their status, treated differently from citizens for a period of time, and during that period of time, the incoming aliens were 2 In In re Griffiths, 413 U. S. 717, 718 n. 1 (1973), the Court noted: “[The plaintiff] is eligible for naturalization by reason of her marriage to a citizen of the United States and residence in the United States for more than three years, 8 U. S. C. § 1430 (a). She has not filed a declaration of intention to become a citizen of the United States, 8 U. S. C. § 1445 (f), and has no present intention of doing so.” The eligibility of plaintiff in that case, however, was not built into the classification scheme. The state-court rule prevented any alien from becoming an attorney, and of course reached those resident aliens who, having not satisfied the jurisdictional prerequisites to citizenship, could not change their disfavored status. 20 OCTOBER TERM, 1976 Rehnquist, J., dissenting 432U.S. powerless to remove themselves from that disability (unless they could become citizens). There was nothing else the alien could do to avoid the period of discriminatory treatment. In all of these cases, then, the classification made by the State conformed to the reason underlying the strict scrutiny this Court applied. But it would seem to follow that if a state statute classifies in a way which necessarily avoids the underlying reason for the strict scrutiny, the statute should be viewed in a different light. This is such a case. Under this New York statute, a resident alien has, at all times, the power to remove himself from one classification and to place himself in the other, for, at all times, he may become entitled to benefits either by becoming a citizen or by declaring his intention to become a citizen as soon as possible.3 Here, unlike the other cases, the resident alien is not a member of a discrete and insular minority for purposes of the classification, even during the period that he must remain an alien, because he has at all times the means to remove himself immediately from the disfavored classification. There is no temporal disability since the resident alien may declare an intent, thereby at once removing himself from the disabled class, even if the intent cannot come to fruition for some period of time. Unlike the situation in Griffiths, Sugarman, and Graham, there exists no period of disability, defined by status, from which the alien cannot escape. The alien is not, there 3 As the Court notes, the state statutory scheme is challengeable at all only by resident aliens. Ante, at 4. While other aliens are also disqualified by the state statute in question, they are also decisively disqualified by federal law from establishing a permanent residence in this country, see 8 U. S. C. §1101 (a) (15) (F) (i); 22 CFR §41.45 (1976); cf. 45 CFR § 177.2 (a) (1976). Since there is no question of the plenary power of the Federal Government in this area, see Mathews v. Diaz, 426 U. S. 67 (1976), the Court is quite properly concerned only with the category of resident aliens, those “lawfully admitted for permanent residence.” 8 U. S. C. § 1101 (a) (20). See generally In re Griffiths, supra, at 719-722; Graham v. Richardson, 403 U. S. 365, 371 (1971). NYQUIST v. MAUCLET 21 1 Rehnquist, J., dissenting fore, for any period of time, forced into a position as a discrete and insular minority.4 Since the New York statute under challenge in this case does not create a discrete and insular minority by placing an inevitable disability based on status, the Court’s heightened judicial scrutiny is unwarranted. The reason for the more rigorous constitutional test having ceased, the applicability of the test should likewise cease. Applying the rational-basis test, it is obvious that the statutory scheme in question should be sustained. The funds that New York wishes to spend on its higher education assistance programs are, of course, limited. New York’s choice to distribute these limited funds to resident citizens and to resident aliens who intend to become citizens, while denying them to aliens who have no intention of becoming citizens, is a natural legislative judgment. By limiting the available pool of recipients to resident citizens and aliens who will become citizens, New York is able to give such recipients a larger payment from the same quantum of funds than would be the case were other aliens recipients as well. A State is entitled to decide, in distributing benefits, that resident citizens, whether or not they will remain residents of New York, are more likely to contribute to the future well-being of the State, either directly (by settling there) or indirectly (by living in some other State, but maintaining economic or social ties with New York or by improving the general well-being of the United States) than are aliens who are unwilling to renounce citizenship in a foreign country, and who may be thought more likely to return there. New 4 The alien, of course, must “give up” (or announce that he intends to give up) his foreign citizenship. See 8 U. S. C. § 1448 (a). In this sense, he must do something that members of the other category need not do in order to be eligible for the “favored” treatment. But, here, what is given up is the factor which distinguishes between the categories. I cannot view this as an impermissible burden which would convert this case into a case like Griffiths or Sugarman. 22 OCTOBER TERM, 1976 Rehnquist, J., dissenting 432U.S. York may also decide, in providing student loans pursuant to N. Y. Educ. Law §§ 680-684 (McKinney Supp. 1976), that it will be easier to collect repayment sums from citizens than from aliens, should these loans be defaulted upon. These are permissible legislative judgments. Cf. McGowan v. Maryland, 366 U. S. 420, 426 (1961); Ohio Bureau of Employment Services v. Hodory, 431 U. S. 471 (1977). When we deal, as we do here, with questions of economic legislation, our deference to the actions of a State is extremely great. Dandridge v. Williams, 397 U. S. 471, 485 (1970). New York’s decision to deny educational monetary benefits to aliens who do not wish to become citizens of this country, while extending such benefits to citizens and other resident aliens, is rational, and should be sustained. LEE v. UNITED STATES 23 Syllabus LEE v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 76-5187. Argued April 25, 1977—Decided June 13, 1977 After the prosecutor’s opening statement in petitioner’s bench trial for theft in violation of the Assimilative Crimes Act and the applicable Indiana statute, petitioner’s counsel moved to dismiss the information on the ground that it did not allege specific intent as required by the Indiana statute. The court tentatively denied the motion subject to further study, whereupon petitioner’s counsel outlined the defense and did not object to going forward with the trial. At the close of the evidence the court, though observing that petitioner’s guilt had been proved beyond any reasonable doubt, granted petitioner’s motion to dismiss. Thereafter, petitioner was indicted for the same crime and convicted. The Court of Appeals affirmed, rejecting petitioner’s claim that the Double Jeopardy Clause barred the second trial. Petitioner contends that (1) he should never have had to undergo the first trial because the court was made aware of the defective information before jeopardy had attached, and (2) once the court had determined to hear evidence despite the defective charge, he was entitled to have the trial proceed to a formal finding of guilt or innocence. Held: Petitioner’s retrial after dismissal of the defective information at his request did not violate the Double Jeopardy Clause. Pp. 27-34. (a) The proceedings against petitioner did not terminate in his favor, the dismissal clearly not being predicated on any judgment that he could never be prosecuted for or convicted of the theft. The order entered by the District Court was functionally indistinguishable from a declaration of mistrial, which contemplates reprosecution of the defendant, see United States v. Jorn, 400 U. S. 470, 476. Thus any distinction between dismissals and mistrials has no significance in the circumstances here presented, and established double jeopardy principles governing the permissibility of retrial after a declaration of mistrial fully apply in this case. United States v. Jenkins, 420 U. S. 358, distinguished. Pp. 28-31. (b) Where a defendant, by requesting a mistrial exercises his choice in favor of terminating the trial the Double Jeopardy Clause will not bar reprosecution absent provocative or bad-faith conduct by the judge or prosecutor. United States v. Dinitz, 424 U. S. 600, 611. Here, as in Dinitz, the proceedings were terminated after jeopardy had attached at 24 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. the defendant’s request and with his consent, and there was no judicial or prosecutorial error that was intended to provoke the motion or that was otherwise motivated by bad faith. The prosecutor’s failure properly to draft the information was at most negligent, and the District Court’s failure to postpone the taking of evidence until it could fully consider petitioner’s motion was entirely reasonable in light of the last-minute timing of the motion and defense counsel’s failure to request a continuance or otherwise stress the importance to petitioner of not being placed in jeopardy on a defective charge. Pp. 33-34. 539 F. 2d 612, affirmed. Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Blackmun, Rehnquist, and Stevens, JJ., joined. Brennan, J., post, p. 34, and Rehnquist, J., post, p. 36, filed concurring opinions. Marshall, J., filed a dissenting opinion, post, p. 37. Joseph P. Bauer, by appointment of the Court, 430 U. S. 928, argued the cause for petitioner. With him on the briefs was Conrad Kellenberg. [Reporter’s Note: Messrs. Bauer and Kellenberg represented petitioner before this Court only. Cf. post, at 34, 37, and 38.] Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Civiletti, and Jerome M. Feit. Mr. Justice Powell delivered the opinion of the Court. At the first trial in this case the District Court, having heard the evidence, granted petitioner’s motion to dismiss the information for failure to provide adequate notice of the crime charged. Petitioner was retried and convicted. The question is whether the second trial violated the Double Jeopardy Clause. I On December 21, 1973, petitioner Phillip Jerome Lee stole two billfolds from the blind operator of a newsstand and candy concession in the lobby of the United States Post Office in Fort Wayne, Ind. A security guard saw Lee take the LEE v. UNITED STATES 25 23 Opinion of the Court billfolds and apprehended him as he tried to escape. In an information filed on February 6, 1974, in the United States District Court for the Northern District of Indiana, the Government charged Lee with the crime of theft, in violation of the Assimilative Crimes Act, 18 U. S. C. § 13, and the applicable Indiana statute, Ind. Code Ann. § 10-3030 (1971).1 Although the defect did not come to light before trial, the allegations of the information were incomplete. The Indiana statute requires proof that the theft be committed knowingly and with intent to deprive the victim of his property. The information made no mention of knowledge or intent and charged only that Lee “did take and steal” the billfolds in violation of the statute. App. 4. Some two months before trial, Lee’s lawyer withdrew and another was appointed to represent him. Lee waived his right to a jury trial and on July 16, 1974, a bench trial began as scheduled. After the prosecutor’s opening statement, Lee’s new lawyer moved to dismiss the information. The court remarked that the timing of the motion would make full consideration difficult: “Well, I will consider it, but you certainly were in the case before this morning. It is difficult to deal with a motion to dismiss if you raise any technical questions, and you don’t give me the opportunity in advance of trial to research them. So I will hear you, but you have that problem.” Id., at 8. Counsel then called the court’s attention to the lack of any allegation of knowledge or intent in the information. Referring the court to the Indiana case of Miller v. State, 250 Ind. 338, 236 N. E. 2d 173 (1968), he argued that if an information failed to charge the specific intent required by § 10- 1 The statute provides in pertinent part that a person commits theft when he “knowingly . . . obtains or exerts unauthorized control over property of the owner . . . and . . . intends to deprive the owner of the use or benefit of the property . . . .” This provision has been repealed effective July 1, 1977. 26 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. 3030, “then the Information must be dismissed.” App. 9. The court tentatively denied the motion: “Well, since I have had no opportunity to study this at all, I will deny the motion at this time, but at my first opportunity I will check your citation and give consideration as appears to be warranted. “Is there anything further by way of opening statement?” Ibid. Defense counsel proceeded to outline Lee’s defense. He offered no objection to going forward with the trial subject to the court’s further study of his motion to dismiss. The trial lasted less than two hours. After the Government had presented its case, consisting of the testimony of the security guard and the victim, the court recessed for 15 minutes. After the recess Lee moved for a judgment of acquittal on the ground that the prosecution had failed to establish the required intent to deprive the victim of his property. Taking care to distinguish this motion from the earlier motion to dismiss on which it had “reserved the right to do some research,” the court found sufficient evidence of intent to withstand any motion “directed to the Government’s proof.” Id., at 12-13. The defense then rested without presenting any evidence, and the court returned to the defense motions, again distinguishing between them. Speaking to defense counsel, the court said: “Your motion addressed to the Government’s proof borders on being frivolous. Your client has been proven [sic] beyond any reasonable doubt in the world, there is no question about his guilt; none whatsoever.” Id., at 13. The court nonetheless found it necessary to grant the motion to dismiss because of the failure of the information to charge either knowledge or intent: “The Federal law cases are legion that the sufficiency of the charges is dependent upon its containing the allega LEE v. UNITED STATES 27 23 Opinion of the Court tions of all of the elements, and all of the elements here are established by the state statute. “As much as I dislike doing so, I have no alternative but to grant your original motion of dismissal and the charge is dismissed.” Id., at 14.2 On September 25, 1974, Lee again was charged with the theft, this time in an indictment alleging all of the elements of the assimilated Indiana crime. On substantially the same evidence as had been presented at the first trial, he was convicted. On appeal, the Court of Appeals for the Seventh Circuit affirmed, rejecting Lee’s claim that the second trial was barred by the Double Jeopardy Clause. 539 F. 2d 612 (1976). We granted certiorari to consider the double jeopardy issue. 429 U.S. 1037 (1977). II In urging that his second trial was barred by the Double Jeopardy Clause, petitioner directs his principal arguments to the conduct of the first proceeding. He contends (i) that he should never have had to undergo the first trial because the court was made aware of the defective information before jeopardy had attached;3 and (ii) that once the court had determined to hear evidence despite the defective charge, he was entitled to have the trial proceed to a formal finding of guilt or innocence. The Government responds that petitioner 2 Federal Rule Crim. Proc. 7 (e) provides that a district court “may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” At no time in the course of the first trial did either the defense or the prosecution raise the possibility that the information might be amended under this provision. 3 As this was a bench trial, jeopardy did not attach until the court began to hear evidence. Serfass v. United States, 420 U. S. 377, 388 (1975). 28 OCTOBER TERM, 1976 Opinion of the Court 432U.S. had only himself to blame in both respects. By the last-minute timing of his motion to dismiss, he virtually assured the attachment of jeopardy; and by failing to withdraw the motion after jeopardy had attached, he virtually invited the court to interrupt the proceedings before formalizing a finding on the merits.4 We think that the Government has the better of the argument on both points under the principles explained in our decision in United States v. Dinitz, 424 U. S. 600 (1976). A The arguments of both sides proceed from the premise that the result in this case would be no different had the District Court characterized its termination of the first trial as a declaration of mistrial rather than a dismissal of the information.5 We too begin with this premise, although we think it requires qualification in light of United States v. Jenkins, 420 U. S. 358 (1975). In Jenkins the District Court, having heard the evidence in a bench trial, dismissed an indictment charging refusal to submit to induction into the Armed Services. Under the law of the Second Circuit as it stood at the time of the offense, the 4 Both sides assume that the District Court’s statements, made to justify denial of Lee’s motion for judgment of acquittal, that he had been “proven [sic] beyond any reasonable doubt in the world” and that there was “no question about his guilt; none whatsoever,” supra, at 26, do not amount to a general finding of guilt. We agree that the court’s comments, in the context in which they were made, cannot be viewed fairly as a general finding of guilt analogous to a jury verdict. See n. 7, infra. 5 In a single footnote to his main brief, petitioner appears to rely on a distinction “between an action terminated by mistrial and one terminated by dismissal.” Brief for Petitioner 18 n. 25. But in the text of that brief petitioner consistently assumes that the permissibility of retrial is controlled by the same considerations in either case. Id., at LL-25. And at oral argument, counsel conceded that “whether [the termination of the first trial] is characterized as a mis-trial or characterized as a dismissal, the result in this case must be the same.” Tr. of Oral Arg. 17. LEE v. UNITED STATES 29 23 Opinion of the Court induction order was improper and the defendant could not be convicted, although a subsequent decision of this Court had held otherwise. Reasoning that retroactive application of the intervening decision would be unfair, the District Court held that it could not “permit the criminal prosecution of the defendant . . . without seriously eroding fundamental and basic equitable principles of law.” 349 F. Supp. 1068,1073 (EDNY 1972), quoted at 420 U. S., at 362.6 On this basis, and without entering any general finding of guilt or innocence, the District Court dismissed the indictment and discharged the defendant. The issue before this Court was whether a Government appeal from the District Court’s order would violate the Double Jeopardy Clause. Because of the absence of any general finding of guilt, it was clear that if the Government prevailed on the merits of its appeal, further trial proceedings would be needed to resolve “factual issues going to the elements of the offense charged.” Id., at 370.7 We held that such proceedings would violate the double jeopardy guarantee: “The trial, which could have resulted in a judgment of conviction, has long since terminated in respondent’s favor.” Ibid. In resting our decision on this ground, we recognized that it was “of critical importance” that the proceedings in the trial court had 6 The findings and conclusions accompanying the District Court’s order left it unclear whether the court had ruled only that the intervening decision was not retroactive or had found, in addition, that the defendant’s reliance on prior law had deprived him of the required criminal intent. See 420 U. S., at 362 n. 3, and 367-368. 7 In United States v. Wilson, 420 U. S. 332 (1975), we held that the Double Jeopardy Clause would permit a Government appeal from a post-verdict ruling because the only result of reversal would be reinstatement of the verdict. But in Jenkins the District Court had not reached a general finding of guilt that could be reinstated if the Government prevailed on the merits of its appeal. We noted that “[e]ven if the District Court were to receive no additional evidence, it would still be necessary for it to make supplemental findings.” 420 U. 8., at 370. 30 OCTOBER TERM, 1976 Opinion of the Court 432U.S. terminated “in the defendant’s favor” rather than in a mistrial. Id., at 365 n. 7.8 The distinction drawn by Jenkins does not turn on whether the District Court labels its action a “dismissal” or a “declaration of mistrial.” The critical question is whether the order contemplates an end to all prosecution of the defendant for the offense charged. A mistrial ruling invariably rests on grounds consistent with reprosecution, see United States v. Jorn, 400 U. S. 470, 476 (1971) (plurality opinion), while a dismissal may or may not do so. Where a midtrial dismissal is granted on the ground, correct or not, that the defendant simply cannot be convicted of the offense charged, Jenkins establishes that further prosecution is barred by the Double Jeopardy Clause. In the present case, the proceedings against Lee cannot be said to have terminated in his favor. The dismissal clearly was not predicated on any judgment that Lee could never be prosecuted for or convicted of the theft of the two wallets. To the contrary, the District Court stressed that the only obstacle to a conviction was the fact that the information had been drawn improperly. The error, like any prosecutorial or judicial error that necessitates a mistrial, was one that could be avoided—absent any double jeopardy bar—by beginning anew the prosecution of the defendant. And there can be little doubt that the court granted the motion to dismiss in 8 The Court of Appeals had held that the order dismissing the indictment was an acquittal since the District Court had relied on facts developed at trial and had concluded that the statute should not be applied to Jenkins “as a matter of fact.” 490 F. 2d 868, 878 (CA2 1973), quoted at 420 U. S., at 364. Our disposition made it unnecessary to address the validity of this reasoning. We recently made it clear that a trial court’s ruling in favor of the defendant is an acquittal only if it “actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977). In this case, petitioner concedes, as he must, that the District Court’s termination of the first trial was not an acquittal. LEE v. UNITED STATES 31 23 Opinion of the Court this case in contemplation of just such a second prosecution. In short, the order entered by the District Court was functionally indistinguishable from a declaration of mistrial.9 We conclude that the distinction between dismissals and mistrials has no significance in the circumstances here presented and that established double jeopardy principles governing the permissibility of retrial after a declaration of mistrial are fully applicable. B When the District Court terminated the first trial in this case it did not act sua sponte but in response to a motion by defense counsel. In United States v. Dinitz, we examined the permissibility of retrial in an analogous situation where the trial court had granted a defense motion for mistrial. In that case, after jeopardy had attached but well before verdict, the trial judge had excluded one of the defendant’s lawyers from the courtroom for repeatedly disregarding his instructions. The defendant’s remaining lawyer moved for a mistrial and the court granted the motion. The defendant was indicted again on the same charge, his double jeopardy claims were rejected, and he was convicted. When the double jeopardy issue reached this Court, we held that the defendant’s second trial on the same charge did not violate the Fifth Amendment. 9 In Illinois v. Somerville, 410 U. S. 458 (1973), a state prosecutor made precisely the same mistake as was made in this case in drafting an indictment for theft. Discovery of the defect in the course of trial led the trial court to declare a mistrial over the defendant’s objection. We held that termination of the trial was dictated by “manifest necessity” under the standard first articulated in United States v. Perez, 9 Wheat. 579, 580 (1824). There is no reason to believe that Somerville would have been analyzed differently if the trial judge, like the District Court here, had labeled his action a “dismissal” rather than a mistrial. In Jenkins we referred specifically to Somerville in distinguishing proceedings that end in mistrials from those that end “in the defendant’s favor.” 420 U. S., at 365 n. 7. 32 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. Writing for the Court, Mr. Justice Stewart reiterated the rule that 11 ‘where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.’ ” 424 U. S., at 607, quoting United States v. Jom, supra, at 485 (plurality opinion). Recognizing that a prejudicial error committed by court or prosecutor generally presents the defendant with a Hobson s choice,” Mr. Justice Stewart nevertheless stressed the importance of preserving the defendant’s “primary control over the course to be followed in the event of such error. 424 U. S., at 609. “Even when judicial or prosecutorial error prejudices a defendant’s prospects of securing an acquittal, he may nonetheless desire ‘to go to the first jury and, perhaps, end the dispute then and there with an acquittal.’ United States v. Jom, supra, at 484. Our prior decisions recognize the defendant’s right to pursue this course in the absence of circumstances of manifest necessity requiring a sua sponte judicial declaration of mistrial. But it is evident that when judicial or prosecutorial error seriously prejudices a defendant, he may have little interest in completing the trial and obtaining a verdict from the first jury. The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant’s mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause—the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions. Id., at 608. Where the defendant, by requesting a mistrial, exercised his choice in favor of terminating the trial, the Double Jeopardy LEE v. UNITED STATES 33 23 Opinion of the Court Clause generally would not stand in the way of reprosecution. Only if the underlying error was “motivated by bad faith or undertaken to harass or prejudice,” id., at 611, would there be any barrier to retrial: “The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where ‘bad-faith conduct by judge or prosecutor,’ United States v. Jorn, supra, at 485, threatens the ‘[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant. Downum v. United States, 372 U. S. [734, 736 (1963)]....” Ibid. It remains only to apply these principles to the present case. C In this case, as in Dinitz, the proceedings were terminated at the defendant’s request and with his consent. Although petitioner’s motion to dismiss the information was initially denied in the course of opening arguments just before the attachment of jeopardy, the court’s remarks left little doubt that the denial was subject to further consideration at an available opportunity in the proceedings—a fact of which the court reminded counsel after the close of the prosecution’s evidence. Counsel for petitioner made no effort to withdraw the motion, either after the initial denial or after the court’s reminder that the motion was still under consideration. And counsel offered no objection when the court, having expressed its views on petitioner’s guilt, decided to terminate the proceedings without having entered any formal finding on the general issue. It follows under Dinitz that there was no double jeopardy barrier to petitioner’s retrial unless the judicial or prosecu 34 OCTOBER TERM, 1976 Brennan, J., concurring 432U.S. torial error that prompted petitioner’s motion was “intended to provoke” the motion or was otherwise “motivated by bad faith or undertaken to harass or prejudice” petitioner. Supra, at 33. Here, two underlying errors are alleged: the prosecutor’s failure to draft the information properly and the court’s denial of the motion to dismiss prior to the attachment of jeopardy. Neither error—even assuming the court’s action could be so characterized—was the product of the kind of overreaching outlined in Dinitz. The drafting error was at most an act of negligence, as prejudicial to the Government as to the defendant. And the court’s failure to postpone the taking of evidence until it could give full consideration to the defendant’s motion, far from evidencing bad faith, was entirely reasonable in light of the last-minute timing of the motion and the failure of counsel to request a continuance or otherwise impress upon the court the importance to petitioner of not being placed in jeopardy on a defective charge.10 We hold that petitioner’s retrial after dismissal of the defective information at his request did not violate the Double Jeopardy Clause. Affirmed. Mr. Justice Brennan, concurring. I join the Court’s opinion. In so doing, I want to make plain that I read the opinion as signaling no retreat from a cardinal principle of double jeopardy law: A criminal defendant possesses a “valued right to have his trial completed by a particular tribunal,” Wade v. Hunter, 336 U. S. 684, 689 (1949), and the trial judge is obligated to take reasonable action in protection of this right, United States v. Jorn, 400 U. S. 470, 485-486 (1971) (plurality opinion). In the present case I agree with the Court that the conduct of the prosecutor 10 What has been said is sufficient to dispose of petitioner’s further claim that his retrial violated the Due Process Clause of the Fifth Amendment. Cf. Ptdko v. Connecticut, 302 U. S. 319, 328 (1937). LEE v. UNITED STATES 35 23 Brennan, J., concurring did not constitute unfair overreaching, and the conduct of the District Court was “entirely reasonable” in proceeding with the trial and ruling on petitioner’s motion after further study. Although jeopardy had not officially attached, the defendant’s motion to dismiss the information appeared so late in the day—during the opening statements—as virtually to guarantee that the trial judge would act as he did. This is especially true in the case of a challenge to an information charging an assimilated crime, for prudence might well counsel a federal judge’s delaying any ruling pending further study. Certainly in this case the District Court cannot be faulted for failing to foresee that defendant’s legal contention would be so easily resolved. While a continuance of the trial would have been a possibility if sought by petitioner or even on the court’s own motion, I agree that the trial judge performed reasonably in not sua sponte stopping a trial in the middle of the opening statements and before any evidence was taken. I emphasize, however, that an entirely different case would be presented if the petitioner had afforded the trial judge ample opportunity to rule on his motion prior to trial, and the court, in failing to take advantage of this opportunity, permitted the attachment of jeopardy before ordering the dismissal of the information. In such a circumstance, the court’s action or inaction would effectively deprive petitioner of his “valued right” to receive a factual determination from the first empaneled factfinder and would subject a defendant to the “embarrassment, expense and ordeal” of a needless trial, Green v. United States, 355 U. S. 184, 187 (1957). Even if the defendant renews his motion at trial, it would not be accurate in such a situation to argue that the defense has made the choice to forgo the right of presenting its case to the first factfinder in order to attain a beneficial legal ruling. United States v. Dinitz, 424 U. S. 600 (1976); United States v. Jorn, supra, at 485. On the contrary, the defendant placed in this predicament by the trial judge would have done 36 OCTOBER TERM, 1976 Rehnquist, J., concurring 432U.S. everything in his power to receive a fair adjudication of his legal claims without compromising his right to proceed with the first factfinder. Honoring his double jeopardy claim thus not only is in keeping with the policies and interests served by the Clause, but also would further the cause of efficient judicial administration by encouraging defendants to present, and judges to rule, on legal claims prior to the clamor and heat of trial. Mr. Justice Rehnquist, concurring. When two Terms ago the Court decided Jenkins v. United States, 420 U. S. 358 (1975), and United States v. Wilson, 420 U. S. 332 (1975), I had thought that a precedential foundation had been laid for double jeopardy analysis which, though perhaps somewhat oversimplified, would at least afford all of the many courts in the country which must decide such questions explicit guidance as to what we deemed the Constitution to require. I thought that dismissals (as opposed to mistrials) if they occurred at a stage of the proceeding after which jeopardy had attached, but prior to the factfinder’s conclusion as to guilt or innocence, were final so far as the accused defendant was concerned and could not be appealed by the Government because retrial was barred by double jeopardy. This made the issue of double jeopardy turn very largely on temporal considerations—if the Court granted an order of dismissal during the factfinding stage of the proceedings, the defendant could not be reprosecuted, but if the dismissal came later, he could. I had thought that United States v. Perez, 9 Wheat. 579 (1824), and Illinois v. Somerville, 410 U. S. 458 (1973), offered a different basis for the treatment of mistrials, which by definition contemplate a second prosecution. This “bright line” analysis was circumvented, however, by the Court’s decision in United States v. Martin Linen Supply Co., 430 U. S. 564 (1977), in which I did not take part. LEE v. UNITED STATES 37 23 Marshall, J., dissenting There the Court held that even though the judgment of acquittal by the court (which I would not treat differently from a judgment of dismissal) occurred after the factfinding portion of the proceedings had aborted in a mistrial, but before the attachment of any jeopardy in a second trial, the second trial was nonetheless barred by double jeopardy. In view of this development, I feel free to re-examine the assumptions I made when writing Jenkins and voting in Wilson. I think that the Court’s opinion in the present case, though not completely in accord with those assumptions, is a well-articulated and historically defensible exposition of the Double Jeopardy Clause of the Bill of Rights. Since my assumptions did not at any rate survive United States n. Martin Linen Supply Co., supra, I join the Court’s opinion. Mr. Justice Marshall, dissenting. It is apparent to me that this Court has today deliberately passed up an opportunity to exercise its supervisory power to prohibit rather than to condone fundamental errors in criminal procedure. At the close of its opinion, ante, at 34, the Court states the problem and its solution: “Here, two underlying errors are alleged: the prosecutor’s failure to draft the information properly and the court’s denial of the motion to dismiss prior to the attachment of jeopardy. Neither error—even assuming the court’s action could be so characterized—was the product of the kind of overreaching outlined in Dinitz. The drafting error was at most an act of negligence, as prejudicial to the Government as to the defendant. And the Court’s failure to postpone the taking of evidence until it could give full consideration to the defendant’s motion, far from evidencing bad faith, was entirely reasonable in light of the last-minute timing of the motion and the failure of counsel to request a continuance or otherwise 38 OCTOBER TERM, 1976 Marshall, J., dissenting 432U.S. impress upon the court the importance to petitioner of not being placed in jeopardy on a defective charge.” Throughout today’s opinion, my Brother Powell puts all of the blame on petitioner’s lawyer, none on the United States Attorney and, indeed, does not even mention him. Sole responsibility for the faulty information was in the office of the United States Attorney. Even when drafting errors are committed, they can be corrected before judgment, Fed. Rule Crim. Proc. 7 (e). In this case the United States Attorney never made any effort to defend the information and did not offer to amend and correct the error. Certainly most of the responsibility for the erroneous first trial rests with the Government. “[T]hough the attorney for the sovereign must prosecute with earnestness and vigor, he must always be faithful to his client’s overriding interest that ‘justice shall be done.’ ” United States v. Agurs, 427 U. S. 97, 110-111 (1976).1 When the motion to dismiss the information was made, the court ruled: “Well, since I have had no opportunity to study this at all, I will deny the motion at this time, but at my first opportunity I will check your citation and give consideration as appears to be warranted.” App. 9. Less than two hours thereafter the court recessed for 15 minutes, and dismissed the information with the following comment: “As much as I dislike doing so, I have no alternative but to grant your original motion of dismissal and the charge is dismissed. “. . . I don’t know who drafted it, but I can tell you if a law clerk of mine out of law school drafted something like that, I would send him back for a refresher course. 1 “A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process.” Barker v. Wingo, 407 U. S. 514, 527 (1972) (footnotes omitted). LEE v. UNITED STATES 39 23 Marshall, J., dissenting You may carry that complete message back to your department.” Id., at 14. Can there be any doubt that if the 15-minute recess had been taken at the beginning of the trial the motion would have been granted before jeopardy attached?2 Since petitioner was needlessly placed in jeopardy twice for the same offense over his objection, I would reverse his conviction. 2 Since this was a bench trial without a jury there was not even a need to call a “recess”; the Judge could have postponed the taking of testimony for 15 minutes. 40 OCTOBER TERM, 1976 Decree 432 U. S. UNITED STATES v. CALIFORNIA ON JOINT MOTION FOR ENTRY OF A SECOND SUPPLEMENTAL DECREE No. 5, Orig. Decided June 23, 1947, and May 17, 1965—Order and decree entered October 27, 1947—Supplemental decree entered January 31, 1966—Second supplemental decree entered June 13, 1977 Joint motion for the entry of a second supplemental decree is granted and such decree is entered. Opinions reported: 332 U. S. 19, 381 U. S. 139; order and decree reported: 332 U. S. 804; supplemental decree reported: 382 U. S. 448. The joint motion for entry of a second supplemental decree is granted. SECOND SUPPLEMENTAL DECREE For the purpose of identifying with greater particularity parts of the boundary line, as defined by the Supplemental Decree of January 31, 1966, 382 U. S. 448, between the submerged lands of the United States and the submerged lands of the State of California, it is ORDERED, ADJUDGED AND DECREED that this Court’s Supplemental Decree of January 31, 1966, be, and the same is hereby, further supplemented as follows: 1. Closing Lines Across Entrances to Bodies oj Inland Waters a. The inland waters of the following bodies of water are enclosed by straight lines between the mean lower low-water lines at the seaward ends of the jetties located at their mouths: 1. Humboldt Bay 2. Port Hueneme 3. Santa Ana River 4. Agua Hedionda Lagoon UNITED STATES v. CALIFORNIA 41 40 Decree b. The inland waters of San Francisco Bay are those enclosed by a series of straight lines from the southwestern head of Point Bonita (37O48,56, N, 122 31 44"W); thence to the western edge of an unnamed island immediately to the south (37°48,55,,N, 122 31 44.2 W), thence southward to the western edge of a second unnamed island (37°48'53"N,. 122°31'44"W); thence southward to the western edge of a third unnamed island (37 46 57 N, 122°30'52"W); thence to a western head of Point Lobos (37°46'53"N, 122°30'49"W). The length of this closing line is 2.18 nautical miles. c. The inland waters of Bodega-Tomales Bay are those enclosed by a straight line drawn from Bodega Head (38° 17'53.8"N, 123°03'25.3"W); thence to the western edge of an unnamed island northwest of Tomales Point (38° 14'28.4"N, 122°59'41.5"W); thence southward to Tomales Point (38°14'26.5"N, 122°59'39"W). d. The closing lines delineated in the foregoing paragraph are part of the coastline of California. The foregoing is without prejudice to the right of either party to assert or deny that other closing lines are part of the coastline of California for purposes of establishing the Federal-State boundary line under the Submerged Lands Act, 67 Stat. 29, as amended. 2. Artificial Extensions of the Coastline The mean lower low-water line along each of the following structures is part of the coastline of California for purposes of establishing the Federal-State boundary line under the Submerged Lands Act: a. The Morro Bay breakwater b. The Port San Luis breakwater c. The Santa Barbara breakwater d. The Ventura Marina breakwater e. The Channel Islands Harbor breakwater 42 OCTOBER TERM, 1976 Decree 432 U. S. f. Three rubble groins at Point Mugu g. The Santa Monica breakwater h. The Venice Beach groin i. The Marina del Rey breakwater j. Three rubble groins along Dockweiler Beach k. The Redondo Beach breakwater 1. Two harbor jetties at Newport Bay m. The Dana Point breakwater n. The Oceanside breakwater o. Two harbor jetties at entrance to Mission Bay p. The Zuniga jetty at San Diego (including the southern seaward end of this entire structure) The foregoing is without prejudice to the right of either party to assert or deny that other artificial structures are part of the coastline of California for purposes of establishing the Federal-State boundary line under the Submerged Lands Act. 3. The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree or to effectuate the rights of the parties in the premises. NATIONAL SOCIALIST PARTY v. SKOKIE 43 Per Curiam NATIONAL SOCIALIST PARTY OF AMERICA et al. v. VILLAGE OF SKOKIE ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS No. 76-1786. Decided June 14, 1977 The Illinois Supreme Court denied a stay of the trial court’s injunction prohibiting petitioners from marching, walking, or parading in the uniform of the National Socialist Party of America or otherwise displaying the swastika, and from distributing pamphlets or displaying materials inciting or promoting hatred against Jews or persons of any faith, ancestry, or race, and also denied leave for an expedited appeal. Held: 1. The Illinois Supreme Court’s order is a final judgment for purposes of this Court’s jurisdiction, since it finally determined the merits of petitioners’ claim that the injunction will deprive them of First Amendment rights during the period of appellate review. 2. The State must allow a stay where procedural safeguards, including immediate appellate review, are not provided, and the Illinois Supreme Court’s order denied this right. Certiorari granted; reversed and remanded. Per Curiam. On April 29, 1977, the Circuit Court of Cook County entered an injunction against petitioners. The injunction prohibited them from performing any of the following actions within the village of Skokie, Ill.: “[m]arching, walking or parading in the uniform of the National Socialist Party of America; [m]arching, walking or parading or otherwise displaying the swastika on or off their person; [distributing pamphlets or displaying any materials which incite or promote hatred against persons of Jewish faith or ancestry or hatred against persons of any faith or ancestry, race or religion.” The Illinois Appellate Court denied an application for stay pending appeal. Applicants then filed a petition for a stay in the Illinois Supreme Court, together with a request for 44 OCTOBER TERM, 1976 Rehnquist, J., dissenting 432U.S. a direct expedited appeal to that court. The Illinois Supreme Court denied both the stay and leave for an expedited appeal. Applicants then filed an application for a stay with Mr. Justice Stevens, as Circuit Justice, who referred the matter to the Court. Treating the application as a petition for certiorari from the order of the Illinois Supreme Court, we grant certiorari and reverse the Illinois Supreme Court’s denial of a stay. That order is a final judgment for purposes of our jurisdiction, since it involved a right “separable from, and collateral to” the merits, Cohen v. Beneficial Loan Corp., 337 U. S. 541, 546 (1949). See Abney v. United States, 431 U. S. 651 (1977); cf. Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 476-487 (1975). It finally determined the merits of petitioners’ claim that the outstanding injunction will deprive them of rights protected by the First Amendment during the period of appellate review which, in the normal course, may take a year or more to complete. If a State seeks to impose a restraint of this kind, it must provide strict procedural safeguards, Freedman v. Maryland, 380 U. S. 51 (1965), including immediate appellate review, see Nebraska Press Assn. v. Stuart, 423 U. S. 1319, 1327 (1975) (Blackmun, J., in chambers). Absent such review, the State must instead allow a stay. The order of the Illinois Supreme Court constituted a denial of that right. Reversed and remanded for further proceedings not inconsistent with this opinion. So ordered. Mr. Justice White would deny the stay. Mr. Justice Rehnquist, with whom The Chief Justice and Mr. Justice Stewart join, dissenting. The Court treats an application filed here to stay a judgment of the Circuit Court of Cook County as a petition for certiorari to review the refusal of the Supreme Court of NATIONAL SOCIALIST PARTY v. SKOKIE 45 43 Rehnquist, J., dissenting Illinois to stay the injunction. It summarily reverses this refusal of a stay. I simply do not see how the refusal of the Supreme Court of Illinois to stay an injunction granted by an inferior court within the state system can be described as a “[f]inal judgmen[t] or decre[e] rendered by the highest court of a State in which a decision could be had,” which is the limitation that Congress has imposed on our jurisdiction to review state-court judgments under 28 U. S. C. § 1257. Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 476-487 (1975), relied upon by the Court, which surely took as liberal a view of this jurisdictional grant as can reasonably be taken, does not support the result reached by the Court here. In Car there had been a final decision on the federal claim by the Supreme Court of Georgia, which was the highest court of that State in which such a decision could be had. Here all the Supreme Court of Illinois has done is, in the exercise of the discretion possessed by every appellate court, to deny a stay of a lower court ruling pending appeal. No Illinois appellate court has heard or decided the merits of applicants’ federal claim. I do not disagree with the Court that the provisions of the injunction issued by the Circuit Court of Cook County are extremely broad, and I would expect that if the Illinois appellate courts follow cases such as Freedman v. Maryland, 380 U. S. 51 (1965), and Nebraska Press Assn. v. Stuart, 423 U. S. 1319 (1975), relied upon by the Court, the injunction will be at least substantially modified by them. But I do not believe that in the long run respect for the Constitution or for the law is encouraged by actions of this Court which disregard the limitations placed on us by Congress in order to assure that an erroneous injunction issued by a state trial court does not wrongly interfere with the constitutional rights of those enjoined. 46 OCTOBER TERM, 1976 Syllabus 432 U. S. E. I. DU PONT DE NEMOURS & CO. et al. v. COLLINS ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 75-1870. Argued March 2, 1977—Decided June 16, 1977* In approving the merger of a closed-end investment company (Christiana), 98% of whose assets consisted of Du Pont & Co. common stock, into an affiliate company (Du Pont), the Securities and Exchange Commission (SEC) held to have reasonably exercised its discretion under § 17(b) of the Investment Company Act of 1940, as amended, in valuing Christiana essentially on the basis of the market value of Du Pont stock rather than on the lower basis of Christiana’s outstanding stock. Since the record before the SEC clearly reveals substantial evidence to support the findings of the SEC and since that agency’s conclusions of law were based on a construction of the statute consistent with the legislative intent, the Court of Appeals erred in rejecting the SEC’s conclusion and substituting its own judgment for that of the SEC. SEC v. Chenery Corp., 332 U. S. 194,209. Pp. 52-57. 532 F. 2d 584, reversed. Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Marshall, Blackmun, Powell, and Stevens, JJ., joined. Brennan, J., filed a dissenting opinion, post, p. 57. Rehnquist, J., took no part in the consideration or decision of the cases. Daniel M. Gribbon argued the cause for petitioners in No. 75-1870. With him on the briefs were Matthew J. Broderick and Richard S. Seltzer. David Ferber argued the cause for petitioner in No. 75-1872. With him on the briefs were former Solicitor General Bork, Acting Solicitor General Friedman, Jacob H. Stillman, and James R. Miller. Richard J. Collins, Jr., respondent, argued the cause pro se and filed a brief in both cases. Lewis C. Murtaugh, respond- *Together with No. 75-1872, Securities and Exchange Commission v. Collins et al., also on certiorari to the same court. E. I. DU PONT DE NEMOURS & CO. v. COLLINS 47 46 Opinion of the Court ent, argued the cause pro se in both cases. With him on the brief was Timothy J. Murtaugh III. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari1 in these cases to determine whether the Securities and Exchange Commission, in approving the merger of a closed-end investment company into an affiliate company, reasonably exercised its discretion under the Investment Company Act of 1940, 54 Stat. 789, as amended, 15 U. S. C. § 80a-l et seq. The Commission valued the investment company essentially on the basis of the market value of the securities which constituted substantially all of its assets rather than on the lower basis of its own outstanding stock. The statutory scheme here is relatively straightforward. Section 17 of the Investment Company Act of 1940,15 U. S. C. § 80a-17, forbids an “affiliated person,” as defined in the Act,2 to purchase any securities or other property from a registered investment company unless the Commission finds, inter alia, that the “evidence establishes that . . . the terms of the proposed transaction, including the consideration to be paid or *429 U. S. 815 (1976). 2 Title 15 U. S. C. § 80a-2 (a) (3) defines an “affiliated person” as follows: “(3) 'Affiliated person’ of another person means (A) any person directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting securities of such other person; (B) any person 5 per centum or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such other person; (C) any person directly or indirectly controlling, controlled by, or under common control with, such other person; (D) any officer, director, partner, copartner, or employee of such other person; (E) if such other person is an investment company, any investment adviser thereof or any member of an advisory board thereof; and (F) if such other person is an unincorporated investment company not having a board of directors, the depositor thereof.” 48 OCTOBER TERM, 1976 Opinion of the Court 432U.S. received, are reasonable and fair and do not involve overreaching on the part of any person concerned . ...” 3 A (1) The merger in this litigation involves Christiana Securities Co., a closed-end, nondiversified management investment company, and E. I. du Pont de Nemours & Co., a large industrial operating company engaged principally in the manufacture of chemical products. Christiana was formed in 1915 in order to preserve family control of Du Pont & Co. At the time the present merger negotiations were announced in April 1972, 98% of Christiana’s assets consisted of Du Pont common stock.4 This block of Du Pont stock in turn comprised approximately 28.3% of the outstanding common stock of Du Pont.5 For purposes of this litigation, Christiana has been presumed to have at least the potential to control Du Pont, although it submits that “this potential lies dormant and unexercised and that there is no actual control relationship.” SEC Investment Company Act Release No. 8615 (1974), 5 S. E. C. Docket 745, 747 (1974). 3 Section 17 (b) also requires that the proposed transaction be (1) consistent with the policy of each registered investment company concerned, and (2) consistent with “the general purposes of this title.” 54 Stat. 815, 15 U. S. C. §§ 80a-17 (b) (2), (3). These criteria are not contested here. 4 Christiana owns 13,417,120 shares of Du Pont. It also holds a relatively small amount of Du Pont preferred stock. Its other assets consist of two daily newspapers in Wilmington, Del., and 3.5% of the stock of the Wilmington Trust Co., which, in turn, holds more than one-half of Christiana’s common stock as trustee. SEC Investment Company Act Release No. 8615 (1974). 5 According to the applicants’ Notice of Filing of Application, SEC Investment Company Act Release No. 7402 (1972), Du Pont has 47,566,694 shares of common stock outstanding held by approximately 224,964 shareholders. E. I. du PONT DE NEMOURS & CO; v. COLLINS 49 46 Opinion of the Court Christiana itself has 11,710,103 shares of common stock outstanding6 and has about 8,000 shareholders. Unlike Du Pont stock, which is traded actively on the New York and other national stock exchanges, Christiana shares are traded in the over-the-counter market. Since virtually all of its assets are Du Pont common stock, the market price of Christiana shares reflects the market price of Du Pont stock. However, as is often the case with closed-end investment companies, Christiana’s own stock has historically sold at a discount from the market value of its Du Pont holdings.7 Apparently, this discount is primarily tax related since Christiana pays a federal intercorporate tax on dividends. Its stockholders are also subject to potential capital-gains tax on the unrealized appreciation of Christiana’s Du Pont stock which has a very low tax base. Additionally, the relatively limited market for Christiana stock likely influences the discount. In 1972, Christiana’s management concluded that, because of the tax disadvantages and the discount at which its shares sold, Christiana should be liquidated and its stockholders become direct owners of Du Pont stock. Christiana’s board of directors proposed liquidation of Christiana by means of a tax-free merger into Du Pont. Du Pont would purchase Christiana’s assets by issuing to Christiana shareholders new certificates of Du Pont stock. In more concrete terms, Du Pont would acquire Christiana’s $2.2 billion assets and assume its liabilities of approximately $300,000. In so doing, Du Pont would acquire from Christiana 13,417,120 shares of its own common stock. Du Pont would then issue 13,228,620 of its shares directly to Christiana holders. This would be 6 Ninety-five and one-half percent of these shares are held by 338 people. SEC Investment Company Act Release No. 8615, supra. 7 In the two years preceding the date of the announcement of the merger negotiations, this discount was generally in the range of 20%-25%. Ibid. 50 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. 188,500 shares less than Du Pont would receive from Christiana. As a result of the merger, each share of Christiana common stock would be converted into 1.123 shares of Du Pont common stock. That ratio was ascertained by taking the market price of Christiana’s Du Pont stock and its other assets, subtracting Christiana’s relatively nominal liabilities, and making certain other minor adjustments. Direct ownership of Du Pont shares would increase the market value of the Christiana shareholders’ holdings and Du Pont would have acquired Christiana’s assets at a 2.5% discount from their net value. The Internal Revenue Service ruled the merger would be tax free. (2) Du Pont and Christiana filed a joint application with the Commission for exemption under § 17 of the Investment Company Act. Administrative proceedings followed. The Commission’s Division of Investment Management Regulation supported the application. A relatively small number of Du Pont shareholders, including the respondents in this case, opposed the transaction. Their basic argument was that, since Christiana was valued on the basis of its assets, Du Pont stock, rather than the much lower market price of its own outstanding stock, the proposed merger would be unfair to the shareholders of Du Pont since it provides relatively greater benefits to Christiana shareholders than to shareholders of Du Pont. The objecting stockholders argued that Du Pont & Co. should receive a substantial share of the benefit realized by Christiana shareholders from the elimination of the 23% discount from net asset value at which Christiana stock was selling. They also argued that the merger would depress the market price of Du Pont stock because it would place more than 13 million marketable Du Pont shares directly in the hands of Christiana shareholders. After the hearing, the parties waived the initial administrative recommendations and the record was submitted E. I. DU PONT DE NEMOURS & CO. v. COLLINS 51 46 Opinion of the Court directly to the Commission. The Commission unanimously granted the application. Basically, it viewed the proposed transaction as an exchange of equivalents—Christiana’s Du Pont stock to be acquired by Du Pont in exchange for Du Pont stock issued directly to Christiana shareholders. It held that, for purposes of § 17 (b), the proper guide for evaluating Christiana was the market price of Christiana’s holdings of Du Pont stock: “Here justice requires no ventures into the unknown and unknowable. An investment company, whose assets consist entirely or almost entirely of securities the prices of which are determined in active and continuous markets, can normally be presumed to be worth its net asset value. . . . The simple, readily usable tool of net asset value does the job much better than an accurate gauge of . market impact (were there one) could.” 5 S. E. C. Docket, at 751. The fact that Du Pont might have obtained more favorable terms because of its strategic bargaining position or by use of alternative methods of liquidating Christiana was considered not relevant by the Commission. In its view, the purpose of § 17 was to prevent persons in a strategic position from getting more than fair value. The Commission found no detriment in the transaction to Du Pont or to the value of its outstanding shares. Any depressing effects on the price of Du Pont would be brief in duration and the intrinsic value of an investment in Du Pont would not be altered by the merger. Moreover, in the Commission’s view, any valuation involving a significant departure from net asset value would “run afoul of Section 17 (b)(1) of the Act”; it would strip long-term investors in companies like Christiana of the intrinsic worth of the securities which underlie their holdings. A panel of the United States Court of Appeals for the Eighth Circuit divided in setting aside the Commission’s 52 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. determination. Collins v. SEC, 532 F. 2d 584 (1976).8 The majority held that the Securities and Exchange Commission had erred, as a matter of law, in determining that Christiana should be presumptively valued on the basis of the market value of its principal asset, common stock of Du Pont. “[I]n judging transactions between dominant and subservient parties, the test is ‘whether or not under all the circumstances the transaction carries the earmarks of an arm’s length bargain.’ Pepper v. Litton, 308 U. S. 295, 306-307 . . . (1939).” Id., at 592. Employing this standard, the Court of Appeals majority concluded that the record did not support the Commission’s finding that the terms of the merger were “reasonable and fair” since the “economic benefits to Christiana shareholders from the merger are immediate and substantial,” id., at 601, while “benefits to present Du Pont shareholders are minimal.” Id., at 602. The court concluded that, from Du Pont’s viewpoint, “the degree of [control] dispersion attained . . . does not justify the substantial premium paid for the Christiana stock.” Id., at 603. The panel also held that the Commission had erred in failing to give weight to the “occasional detriment to Du Pont shareholders,” id., at 605, caused by the increase of available Du Pont stock in the market. B In determining whether the Court of Appeals correctly set aside the order of the Commission, we begin by examining the nature of the regulatory process leading to the decision that court was required to review. In United States v. National Assn, of Securities Dealers, 422 U. S. 694 (1975), we noted that the Investment Company Act of 1940, 15 U. S. C. § 80a-l et seq., “vests in the SEC broad regulatory authority over the business practices of the investment companies.” 422 U. S., at 704-705. The Act was the product of congressional concern 8 A petition for rehearing en banc was denied by an equally divided court. E. I. du PONT DE NEMOURS & CO. v. COLLINS 53 46 Opinion of the Court that existing legislation in the securities field did not afford adequate protection to the purchasers of investment company securities. Prior to the enactment of the legislation, Congress mandated an intensive study of the investment company industry.9 One of the problems specifically identified was the numerous transactions between investment companies and persons affiliated with them which resulted in a distinct advantage to the “insiders” over the public investors.10 Section 17 was the specific congressional response to this problem.11 Congress therefore charged the Commission, in scrutinizing a merger such as this, to take into account the peculiar characteristics of such a transaction in the investment company industry. Recognizing that an “arm’s length bargain,” cf. Pepper v. Litton, 308 U. S. 295, 307 (1939), is rarely a realistic possibility in transactions between an affiliate and an investment company, Congress substituted, in effect, the informed judgment of the Commission to determine, inter alia, whether the transaction was “reasonable and fair and [did] not involve overreaching on the part of any person concerned.” 12 Given the wide variety of possible transactions between an investment company and its affiliates, Congress, quite understandably, made no attempt to define this standard with any greater precision. Instead, it followed the practice frequently employed in other administrative schemes. The 9 Section 30 of the Public Utility Holding Company Act, 49 Stat. 837, 15 U. S. C. § 79z-4, mandated that the SEC undertake such a study. See United States v. National Assn, of Securities Dealers, 422 U S 694 704 (1975). 10 See generally Report on Investment Trust and Investment Companies, H. R. Doc. No. 279, 76th Cong., 1st Sess., 1017-1561 (1940). 11 While the House and Senate Reports indicate that the Congress’ chief concern was protection of the public investors of the investment company, S. Rep. No. 1775, 76th Cong., 3d Sess., 11-12 (1940); H. R. Rep. No. 2639, 76th Cong., 3d Sess., 9 (1940), the statute has been construed to afford protection to the stockholders of the affiliate as well. See Fifth Avenue Coach Lines, Inc., 43 S. E. C. 635, 639 (1967). 12 15 U. S. C. §80a-17 (b)(1). 54 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. language of the statute was cast in broad terms and designed to encompass all situations falling within the scope of the statute; an agency with great experience in the industry was given the task of applying those criteria to particular business situations in a manner consistent with the legislative intent.13 C In this case, a judgment as to whether the terms of the merger were “reasonable and fair” turned upon the value assigned to Christiana. In making such an evaluation, the Commission concluded that “[t]he single, readily usable tool of net asset value does the job much better than an accurate gauge of market impact. ...” 5 S. E. C. Docket, at 751. Investment companies, it reasoned, are essentially a portfolio of securities whose individual prices are determined by the forces of the securities marketplace. In determining value in merger situations, “asset value” is thus much more applicable to investment companies than to other corporate entities. The value of the securities surrendered is, basically, the real value received by the transferee. In reviewing a decision of the Commission, a court must consider both the facts found and the application of the relevant statute by the agency. Congress has mandated that, in review of § 17 proceedings, “[t]he findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.” 15 U. S. C. § 80ar-42. A reviewing court is also to be guided by the “venerable principle that the construction 13 This situation is quite different from that which confronted the Court earlier this Term in Piper n. Chris-Craft Industries, Inc., 430 U. S. 1 (1977). There, the Court held that “the narrow legal issue” of implying a private right of action under the securities laws was “one peculiarly reserved for judicial resolution” and that the experience of the Commission on such a question was of “limited value.” Id., at 41 n. 27. By contrast, this case involves an assessment as to whether a given business arrangement is compatible with the regulatory scheme which the agency is charged by Congress to administer. E. I. DU PONT DE NEMOURS & CO. v. COLLINS 55 46 Opinion of the Court of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong . . . ” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381 (1969). “[Contemporaneous construction is entitled to great weight. . . even though it was applied in cases settled by consent rather than in litigation.” FTC v. Mandel Bros., 359 U. S. 385, 391 (1959). Here, however, the Court of Appeals held, as a matter of law, that the Commission erred in the method applied in passing on the merger, thus all but ignoring the congressional limitations on judicial review of agency action. The Commission has long recognized that the key factor in the valuation of the assets of a closed-end investment company should be the market price of the underlying securities. This method of setting the value of investment companies is, as Congress contemplated, the product of the agency’s long and intimate familiarity with the investment company industry. For instance, in issuing an advisory report to the United States District Court pursuant to § 173 of Chapter X of the Bankruptcy Act, the Commission advised that “it is natural that net asset value based upon market prices should be the fundamental valuation criterion used by and large in the investment company field.” Central States Electric Corp., 30 S. E. C. 680, 700 (1949), approved sub nom. Central States Electric Corp. v. Austrian, 183 F. 2d 879, 884 (CA4 1950), cert, denied, 340 U. S. 917 (1951). Similarly, in mergers like the one presented in this litigation, the Commission has used “net asset value” as a touchstone in its analysis. See, e. g., Delaware Realty & Investment Co., 40 S. E. C. 469, 473 (1961); Harbor Plywood Corp., 40 S. E. C. 1002 (1962); Eastern States Corp., SEC Investment Company Act Releases Nos. 5693 and 5711 (1969).14 14 This method of valuation of closed-end investment companies was similarly employed in ELT, Inc., SEC Investment Company Act Releases 56 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. Moreover, despite the characterization of the Court of Appeals to the contrary, the Commission did not employ a mechanical application of a rule or “presumption.” It considered carefully the contentions of the respondents that a departure from the use of net asset value was warranted in this case. Upon analysis, it concluded that the central and controlling aspect of the merger remained the fact that it consisted of an exchange of Du Pont common stock for Du Pont common stock; it was not Christiana stock but Du Pont stock which Du Pont was receiving in the merger. As to the claim that Du Pont stock would be adversely affected over an extended period of time by volume selling, the Commission concluded there was no indication of a longterm adverse market impact. It noted that Christiana stock was held principally by long-term investors. There was no evidence that Christiana stockholders, who for years had been indirect investors in Du Pont, would now change the essential nature of their investment. The Commission’s reliance on “net asset value” in this particular case and its consequent determination that the proposed merger met the statutory standards thus rested “squarely in that area where administrative judgments are entitled to the greatest amount of weight by appellate courts. Nos. 8675 and 8714 (1975); Chemical Fund, Inc., SEC Investment Company Act Releases Nos. 8773 and 8795 (1975); Citizens &. Southern Capital Corp., SEC Investment Company Act Releases Nos. 7755 and 7802 (1973); Detroit & Cleveland Nav. Co., SEC Investment Company Act Releases Nos. 3082 and 3099 (1960); Cheapside Dollar Fund, Ltd., SEC Investment Company Act Releases Nos. 9038 and 9085 (1975). The Commission has, of course, required that such valuations be adjusted to reflect such factors as expenses of the merger and tax considerations. Talley Industries, Inc., SEC Investment Company Act Release No. 5953 (1970); and Electric Bond & Share Co., SEC Investment Company Act Release No. 5215 (1967), cited by the Court of Appeals, did not rely on net asset value since the companies held substantial assets other than securities. While Christiana also had some assets other than Du Pont stock, they amounted to only 2% of its assets. E. I. DU PONT DE NEMOURS & CO. v. COLLINS 57 46 Brennan, J., dissenting It is the product of administrative experience, appreciation of the complexities of the problem, realization of the statutory policies, and responsible treatment of the uncontested facts.” SEC v. Chenery Corp., 332 U. S. 194, 209 (1947). In rejecting the conclusion of the Commission, the Court of Appeals substituted its own judgment for that of the agency charged by Congress with that responsibility. We note that after receiving briefs and hearing oral argument, the Court of Appeals—over the objection of the Commission, Christiana, and Du Pont—undertook the unique appellate procedure of employing a university professor to assist the court in understanding the record and to prepare reports and memoranda for the court. Thus, the reports relied upon by that court included a variety of data and economic observations which had not been examined and tested by the traditional methods of the adversary process. We are not cited to any statute, rule, or decision authorizing the procedure employed by the Court of Appeals. Cf. Fed. Rule App. Proc. 16. In our view, the Court of Appeals clearly departed from its statutory appellate function and applied an erroneous standard in its review of the decision of the Commission. The record made by the parties before the Commission was in accord with traditional procedures and that record clearly reveals substantial evidence to support the findings of the Commission. Moreover, the agency conclusions of law were based on a construction of the statute consistent with the legislative intent. Accordingly, the judgment of the Court of Appeals is _ , Reversed. Mr. Justice Rehnquist took no part in the consideration or decision of these cases. Mr. Justice Brennan, dissenting. Section 17 of the Investment Company Act of 1940, 15 U. S. C. § 80a-17, prohibits transactions between registered 58 OCTOBER TERM, 1976 Brennan,J., dissenting 432U.S. investment companies and “affiliated persons,” except as the Securities and Exchange Commission approves such transactions on application, if, inter alia, “the terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned.” § 80a-17 (b). The SEC approved the application of Christiana Securities Co. (Christiana) to merge into E. I. du Pont de Nemours & Co. (Du Pont), finding that the proposed transaction met the statutory standard. Christiana was created in 1915 to concentrate the Du Pont family’s holdings of Du Pont stock. Its assets consist almost entirely of Du Pont common stock, of which it holds 28.3% of the total outstanding. It is thus an investment company within the meaning of the Act, and an affiliate of Du Pont subject to the prohibitions of § 17. Although ownership of Christiana stock is essentially indirect ownership of Du Pont stock, Christiana stock is traded over-the-counter at a considerable discount from the market price of the corresponding shares of Du Pont. For reasons unnecessary to elaborate here, Christiana is no longer regarded by its owners as a desirable control mechanism. Moreover, the tax laws make it expensive to maintain, since dividends from Du Pont are taxed when paid to Christiana, and again when passed on to the shareholders as dividends from Christiana. Elimination of Christiana is therefore desirable to its shareholders, and an agreement was reached to effectuate this goal by merging Christiana into Du Pont.1 The terms of this agreement are set forth in the Court’s opinion, ante, at 49-50, but in effect, Du Pont acquired its own shares from Christiana at about a 2.5% discount from 1 Liquidation of Christiana would also have accomplished the desired result, without involving Du Pont or the prohibitions of § 17, but was apparently ruled out by Christiana because of disadvantageous tax consequences for its shareholders. E. I. DU PONT DE NEMOURS & CO. v. COLLINS 59 46 Brennan, J., dissenting their market price, while Christiana’s shareholders eliminated their costly holding company, without incurring any tax liability.2 It is conceded that while the primary concern of Congress in enacting the Act was the protection of investment company shareholders, § 17 (b) does not permit the SEC to authorize a transaction that is unfair to the affiliated person, any more than one that is unfair to the investment company. Fifth Avenue Coach Lines, Inc., 43 S. E. C. 635 (1967). See the opinion of the Court, ante, at 53 n. 11.3 The SEC found here that the transaction was fair to Du Pont’s shareholders, essentially because they paid slightly less than the net asset value of Christiana. In this sense, it is true that Du Pont paid for Christiana no more than it is intrinsically “worth,” and so the price could be considered “fair.” However, in a market economy, the value of any commodity is no more nor less than the price arm’s-length bargainers agree on. Christiana and Du Pont were not arm’s-length bargainers,4 and it is obvious that if they had been, Du Pont would have insisted on, and would have had the bargaining power to obtain, a more favorable price. Instead, the directors of Du Pont accommodated the desires of Christiana, owner of a control block of Du Pont stock, without requiring the quid pro quo 2 In contrast to the disadvantageous tax consequences of alternative means of disposing of Christiana, see n. 1, supra, the Internal Revenue Service had ruled that the proposed merger with Du Pont would be tax free. Ante, at 50. 3 In order to be approved, the transaction must “not involve overreaching on the part of any person concerned.” 15 U. S. C. § 80a-17 (b) (emphasis supplied). 4 Christiana owned a potentially controlling share of Du Pont. As the Court concedes, ante, at 53, an arm’s-length bargain “is rarely a realistic possibility” in such a situation. While “Du Pont did take some steps to simulate arm’s-length bargaining,” 532 F. 2d 584, 598 (1976), the Court of Appeals made short shrift of their significance, id., at 598-601, and the Court places no reliance on them. 60 OCTOBER TERM, 1976 Brennan, J., dissenting 432 U. S. they would undoubtedly have demanded from any other seller. I do not mean to suggest that the SEC should not, as a general rule, look to the net asset value of an investment company in evaluating the fairness of transactions such as this. At least where the result of the transaction is the elimination of the investment company, the party that acquires it gets the full value of its holdings, and not just a block of stock in the investment company; the asset value thus seems in the usual case a better measure of the investment company’s value than the market price of its stock. On the other hand, in a situation such as this, the depressed market price of Christiana stock may well reflect its undesirability to its present holders.5 Even if the stock is for some reason still desirable to the purchaser, this undesirability can be translated into a benefit to him because it gives him bargaining leverage to obtain a better price.6 5 In addition to the tax on intercorporate dividends, as the Court recognizes, ante, at 49, other disadvantages to the continued maintenance of Christiana might have been reflected in the low market price of its stock, such as the potential for high capital-gains taxation and the relative illiquidity of Christiana stock, for which there is a more limited market than for Du Pont. 6 The SEC’s argument that § 17 was intended “to prevent persons in a strategic position from getting more than fair value,” ante, at 51, is a mere play on words. As the legislative history, examined at length by the Court of Appeals, 532 F. 2d, at 591-592, makes plain, § 17 was intended to protect minority interests from exploitation by insiders of their “strategic position,” and to restore a situation in which “the directors of the several corporations involved in negotiations for a merger . . . are acting at arm’s length in an endeavor to secure the best possible bargain for their respective stockholders.” SEC, Report on Investment Trusts and Investment Companies, H. R. Doc. No. 279, 76th Cong., 1st Sess., 1414 (1940). Far from being intended to negate factors that would give one party a “strategic bargaining position” in arm’s-length bargaining in the free market, the Act was specifically intended to give those factors free play, uncorrupted by insiders’ desires to benefit themselves rather than the stockholders as a whole. E. I. DU PONT DE NEMOURS & CO. v. COLLINS 61 46 Brennan, J., dissenting However accurate asset valuation may be in most contexts, each determination of what is fair and reasonable and free of overreaching must by the nature of the inquiry turn on the facts of the particular transaction involved.7 I would hold that the SEC applied an erroneous standard in this case by presuming that in the absence of actual detriment to the purchaser, a transaction that recognizes the net asset value of an investment company is fair and reasonable. In my view the correct standard required the SEC to compare the terms of the transaction with those that would have been reached by arm’s-length bargainers.8 Here, Du Pont’s directors, who were in the conflict-of-interest situation with which the Act is concerned because of Christiana’s position as a controlling shareholder of Du Pont, entered a transaction that handsomely benefited Christiana, without extracting the price for Du Pont that an arm’s-length negotiator would have demanded and received.9 I therefore disagree with the SEC’s 7 Since this is so, one might well wonder what “special and important reasons” exist for this Court to decide “whether the Securities and Exchange Commission . . . reasonably exercised its discretion” in a particular case. Ante, at 47. See this Court’s Rule 19. 8 Although the SEC did recognize the possibility that there might be cases in which an exception to the “net asset value” rule would be appropriate, its inquiry in this litigation turned entirely on the possible detriment of this transaction to Du Pont’s shareholders. No attempt was made to determine what the results of arm’s-length bargaining might have been. The Court of Appeals, correctly in my view, held that such an inquiry should have been made. Accordingly, the Court of Appeals held that the agency had applied an erroneous legal standard, and no question of invasion of the area of SEC expertise is presented. 9 It may appear harsh to insist that, in the absence of actual detriment to its other shareholders, Du Pont press its advantage, rather than accommodate Christiana. But in accommodating Christiana, Du Pont’s directors were not merely being “nice guys” in a disinterested fashion, at no cost to anyone. They were giving special consideration to an investment company that holds a controlling share of Du Pont. This is precisely the evil at which § 17 was directed. 62 OCTOBER TERM, 1976 Brennan, J., dissenting 432 U. S. holding that this behavior was fair and reasonable to Du Pont, or free from overreaching on the part of Du Pont’s controlling shareholder, Christiana. Accordingly, I would affirm the judgment of the Court of Appeals. TRANS WORLD AIRLINES, INC. v. HARDISON Syllabus 63 TRANS WORLD AIRLINES, INC. v. HARDISON et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 75-1126. Argued March 30, 1977—Decided June 16, 1977* Respondent Hardison (hereafter respondent) was employed by Trans World Airlines (TWA), petitioner in No. 75—1126, in a department that operated 24 hours a day throughout the year in connection with an airplane maintenance and overhaul base. Respondent was subject to a seniority system in a collective-bargaining agreement between TWA and the International Association of Machinists & Aerospace Workers (union), petitioner in No. 75-1385, whereby the most senior employees have first choice for job and shift assignments as they become available, and the most junior employees are required to work when enough employees to work at a particular time or in a particular job to fill TWA’s needs cannot be found. Because respondent’s religious beliefs prohibit him from working on Saturdays, attempts were made to accommodate him, and these were temporarily successful mainly because on his job at the time he had sufficient seniority regularly to observe Saturday as his Sabbath. But when he sought, and was transferred to, another job where he was asked to work Saturdays and where he had low seniority, problems began to arise. TWA agreed to permit the union to seek a change of work assignments, but the union was not willing to violate the seniority system, and respondent had insufficient seniority to bid for a shift having Saturdays off. After TWA rejected a proposal that respondent work only four days a week on the ground that this would impair critical functions in the airline operations, no accommodation could be reached, and respondent was discharged for refusing to work on Saturdays. Then, having first invoked the administrative remedy provided by Title VII of the Civil Rights Act of 1964, respondent brought an action for injunctive relief against TWA and the union, claiming that his discharge constituted religious discrimination in violation of §703 (a)(1) of the Act, which makes it an unlawful employment practice for an employer to discriminate against an em-ployee on the basis of his religion. He also made certain other charges against the union. His claim of religious discrimination was based on *Together with No. 75-1385, International Assn, of Machinists & Aerospace Workers, AFL-CIO, et al. v. Hardison et al., also on certiorari to the same court. 64 OCTOBER TERM, 1976 Syllabus 432 U. S. the 1967 Equal Employment Opportunity Commission (EEOC) ^guidelines in effect at the time requiring an employer, short of “undue hardship,” to make “reasonable accommodations” to the religious needs of its employees, and on similar language in the 1972 amendments to Title VII. The District Court ruled in favor of both TWA and the union, holding that the union’s duty to accommodate respondent’s religious beliefs did not require it to ignore the seniority system, and that TWA had satisfied its “reasonable accommodations” obligation. The Court of Appeals affirmed the judgment for the union but reversed the judgment for TWA, holding that TWA had not satisfied its duty to accommodate respondent’s religious needs under the EEOC guidelines. The court took the view that TWA had rejected three reasonable alternatives, any one of which would have satisfied its obligation without undue hardship: (1) Within the framework of the seniority system, TWA could have permitted respondent to work a four-day week, utilizing a supervisor or another worker on duty elsewhere, even though this would have caused other shop functions to suffer; (2) TWA could have filled respondent’s Saturday shift from other available personnel, even though this would have involved premium overtime pay; and (3) TWA could have arranged a “swap” between respondent and another employee either for another shift or for the Sabbath days, even though this would have involved a breach of the seniority system. Held. TWA, which made reasonable efforts to accommodate respondent’s religious needs, did not violate Title VII, and each of the Court of Appeals suggested alternatives would have been an undue hardship within the meaning of the statute as construed by the EEOC guidelines. Pp. 76-85. (a) The seniority system itself represented a significant accommodation to the needs, both religious and secular, of all of TWA’s employees. Pp. 77-78. (b) TWA itself cannot be faulted for having failed to work out a shift or job swap for respondent. Both the union and TWA had agreed to the seniority system; the union was unwilling to entertain a variance over the objections of employees senior to respondent; and for TWA to have arranged unilaterally for a swap would have breached the collective-bargaining agreement. An agreed-upon seniority system is not required to give way to accommodate religious observances, and it would be anomalous to conclude that by “reasonable accommodations” Congress meant that an employer must deny the shift and job preferences of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others. Title VII does not require an employer to go that far. Pp. 79-81. 63 TRANS WORLD AIRLINES, INC. v. HARDISON Syllabus 65 (c) Under § 703 (h) of Title VII, absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system is discriminatory in its effect. Pp. 81-82 (d) To require TWA to bear more than a de minimis cost in order to give respondent Saturdays off would be an undue hardship, for, like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion. Absent clear statutory language or legislative history to the contrary, the statute, the paramount concern of which is to eliminate discrimination in employment, cannot be construed to require an employer to discriminate against some employees in order to enable others to observe their Sabbath. Pp. 84-85. 527 F. 2d 33, reversed. White, J., delivered the opinion of the Court, in which Burger, C. J. and Stewart, Blackmun, Powell, Rehnquist, and Stevens, J J., joined.> Marshall, J., filed a dissenting opinion, in which Brennan, J ’ joined post, p. 85. ’ J ’ George E. Feldmiller argued the cause for petitioner in No. 75-1126. With him on the brief was Dick H. Woods. Mozart G. Ratner argued the cause for petitioners in No. 75-1385. With him on the briefs were Plato E. Papps and Michael D. Gordon. William F. Pickett argued the cause for respondent Hardison m both cases. With him on the brief was Thomas L. Hogan. Nathan Lewin argued the cause for the National Jewish Commission on Law and Public Affairs as amicus curiae urging affirmance. With him on the brief were Dennis Rapps and Howard I. Rhine A tBriefs of amici curiae urging reversal were filed by William L. Hun-gate, Edwin D. Akers, Jr., Charles A. Newman, and A. William Rolf for the Chrysler Corp.; and by Jay S. Siegel, Robert E. Williams, and Douglas SMcDowell for the Equal Employment Advisory Council. Briefs of amici curiae urging affirmance were filed by Acting Solicitor General Friedman, Assistant Attorney General Days, Deputy Solicitor General Wallace, Allan A. Ryan, Jr., Brian K. Landsberg, Dennis J. 66 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. Mr. Justice White delivered the opinion of the Court. Section 703 (a)(1) of the Civil Rights Act of 1964, Title VII, 78 Stat. 255, 42 U. S. C. § 2000e-2 (a)(1), makes it an unlawful employment practice for an employer to discriminate against an employee or a prospective employee on the basis of his or her religion. At the time of the events involved here, a guideline of the Equal Employment Opportunity Commission (EEOC), 29 CFR § 1605.1 (b) (1968), required, as the Act itself now does, 42 U. S. C. § 2000e (j) (1970 ed., Supp. V), that an employer, short of “undue hardship,” make “reasonable accommodations” to the religious needs of its employees. The issue in this case is the extent of the employer’s obligation under Title VII to accommodate an employee whose religious beliefs prohibit him from working on Saturdays. I We summarize briefly the facts found by the District Court. 375 F. Supp. 877 (WD Mo. 1974). Petitioner Trans World Airlines (TWA) operates a large maintenance and overhaul base in Kansas City, Mo. On June 5, 1967, respondent Larry G. Hardison was hired by TWA to work as a clerk in the Stores Department at its Kansas City base. Because of its essential role in the Kansas City operation, the Stores Department must operate 24 hours per day, 365 days per year, and whenever an employee’s job in that department is not filled, an employee must be Dimsey, and Abner W. Sibal for the United States et al.; by Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Michael A. Lockman and Gary G. Kress, Assistant Attorneys General, for the State of Michigan; by Beverly Gross for the New York State Division of Human Rights; by Joel M. Gora and Leo Pfeffer for the American Civil Liberties Union; by Mr. Pfeffer for the Central Conference of American Rabbis et al.; by Warren L. Johns for the General Conference of Seventh-Day Adventists; and by Ralph K. Helge for the Worldwide Church of God. 63 TRANS WORLD AIRLINES, INC. v. HARDISON Opinion of the Court 67 shifted from another department, or a supervisor must cover the job, even if the work in other areas may suffer Hardison, like other employees at the Kansas City base, was subject to a seniority system contained in a collectivebargaining agreement1 that TWA maintains with petitioner International Association of Machinists and Aerospace Workers (IAM).2 The seniority system is implemented by the union steward through a system of bidding by employees for particular shift assignments as they become available. The most senior employees have first choice for job and shift assignments, and the most junior employees are required to work when the union steward is unable to find enough people willing to work at a particular time or in a particular job to fill TWA’s needs. In the spring of 1968 Hardison began to study the religion known as the Worldwide Church of God. One of the tenets of that religion is that one must observe the Sabbath by refraining from performing any work from sunset on Friday until sunset on Saturday. The religion also proscribes work on certain specified religious holidays. When Hardison informed Everett Kussman, the manager of the Stores Department, of his religious conviction regarding xThe TWA-IAM agreement provides in pertinent part: “The principle of seniority shall apply in the application of this Agreement in all reductions or increases of force, preference of shift assignment, vacation period selection, in bidding for vacancies or new jobs, and in all promotions, demotions, or transfers involving classifications covered by this Agreement. Except as hereafter provided in this paragraph, seniority shall apply in selection of shifts and days off within a classification within a department . . . .” App. 214. 2 TWA is the petitioner in No. 75-1126. Petitioners in No. 75-1385 are the international, local, and district levels of IAM, hereinafter collectively referred to as IAM or the union. 68 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. observance of the Sabbath, Kussman agreed that the union steward should seek a job swap for Hardison or a change of days off; that Hardison would have his religious holidays off whenever possible if Hardison agreed to work the traditional holidays when asked; and that Kussman would try to find Hardison another job that would be more compatible with his religious beliefs. The problem was temporarily solved when Hardison transferred to the 11 p. m-7 a. m. shift. Working this shift permitted Hardison to observe his Sabbath. The problem soon reappeared when Hardison bid for and received a transfer from Building 1, where he had been employed, to Building 2, where he would work the day shift. The two buildings had entirely separate seniority lists; and while in Building 1 Hardison had sufficient seniority to observe the Sabbath regularly, he was second from the bottom on the Building 2 seniority list. In Building 2 Hardison was asked to work Saturdays when a fellow employee went on vacation. TWA agreed to permit the union to seek a change of work assignments for Hardison, but the union was not willing to violate the seniority provisions set out in the collective-bargaining contract,3 and Hardison had insufficient seniority to bid for a shift having Saturdays off. A proposal that Hardison work only four days a week was rejected by the company. Hardison’s job was essential, and on weekends he was the only available person on his shift to perform it. To leave the position empty would have impaired supply shop functions, which were critical to airline operations; to fill Hardison’s position with a supervisor or an 3 The union did have a Relief Committee organized to deal with the emergency problems of its members. The record reveals that in the past this Committee had been instrumental in arranging for temporary adjustments in work schedules to meet the needs of union members, but the record also reveals that the Relief Committee had almost never arranged permanent changes in work assignments and that Hardison never sought the assistance of that Committee. TRANS WORLD AIRLINES, INC. v. HARDISON 69 63 Opinion of the Court employee from another area would simply have undermanned another operation; and to employ someone not regularly assigned to work Saturdays would have required TWA to pay premium wages. When an accommodation was not reached, Hardison refused to report for work on Saturdays. A transfer to the twilight shift proved unavailing since that schedule still required Hardison to work past sundown on Fridays. After a hearing, Hardison was discharged on grounds of insubordination for refusing to work during his designated shift. Hardison, having first invoked the administrative remedy provided by Title VII, brought this action for injunctive relief in the United States District Court against TWA and IAM, claiming that his discharge by TWA constituted religious discrimination in violation of Title VII, 42 U. S. C. § 2000e-2 (a)(1). He also charged that the union had discriminated against him by failing to represent him adequately in his dispute with TWA and by depriving him of his right to exercise his religious beliefs. Hardison’s claim of religious discrimination rested on 1967 EEOC guidelines requiring employers “to make reasonable accommodations to the religious needs of employees” whenever such accommodation would not work an “undue hardship,” 29 CFR § 1605.1 (1968), and on similar language adopted by Congress in the 1972 amendments to Title VII, 42 U. S. C. § 2000e (j) (1970 ed., Supp. V). After a bench trial, the District Court ruled in favor of the defendants. Turning first to the claim against the union, the District Court ruled that although the 1967 EEOC guidelines were applicable to unions, the union’s duty to accommodate Hardison’s belief did not require it to ignore its seniority system as Hardison appeared to claim.4 As for Hardison’s 4 The District Court voiced concern that if it did not find an undue hardship in such circumstances, accommodation of religious observances might impose “ 'a priority of the religious over the secular’ ” and thereby raise significant questions as to the constitutional validity of the statute 70 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. claim against TWA, the District Court rejected at the outset TWA’s contention that requiring it in any way to accommodate the religious needs of its employees would constitute an unconstitutional establishment of religion. As the District Court construed the Act, however, TWA had satisfied its '‘reasonable accommodations” obligation, and any further accommodation would have worked an undue hardship on the company. The Court of Appeals for the Eighth Circuit reversed the judgment for TWA. 527 F. 2d 33 (1975). It agreed with the District Court’s constitutional ruling, but held that TWA had not satisfied its duty to accommodate. Because it did not appear that Hardison had attacked directly the judgment in favor of the union, the Court of Appeals affirmed that judgment without ruling on its substantive merits. In separate petitions for certiorari TWA and IAM contended that adequate steps had been taken to accommodate Hardison’s religious observances and that to construe the statute to require further efforts at accommodation would create an establishment of religion contrary to the First Amendment of the Constitution. TWA also contended that the Court of Appeals improperly ignored the District Court’s findings of fact. We granted both petitions for certiorari. 429 U. S. 958 (1976). Because we agree with petitioners that their conduct was not a violation of Title VII,5 we need not reach the other questions presented. under the Establishment Clause of the First Amendment. 375 F. Supp. 877, 883 (WD Mo. 1974), quoting Edwards & Kaplan, Religious Discrimination and the Role of Arbitration Under Title VII, 69 Mich. L. Rev. 599, 628 (1971). 5 Because the judgment in its favor was affirmed by the Court of Appeals, the union was a prevailing party below; and Hardison has not filed a petition for certiorari seeking to change that judgment. It may thus appear anomalous to have granted the union’s petition for certiorari as well as that of TWA. But the union’s view is that the judgment below TRANS WORLD AIRLINES, INC. v. HARDISON 71 63 Opinion of the Court II The Court of Appeals found that TWA had committed an unlawful employment practice under § 703 (a)(1) of the Act, 42 U. S. C. § 2000e-2 (a) (1), which provides: “(a) It shall be an unlawful employment practice for an employer— “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” The emphasis of both the language and the legislative history of the statute is on eliminating discrimination in employment; similarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex, or national origin.6 This is true regardless of whether against TWA seriously involves union interests, because the rationale of the Court of Appeals’ opinion, as the union understands it, “necessarily and explicitly assumes that petitioner Unions are legally obligated to waive or vary provisions of their collective bargaining agreement in order to accommodate respondent Hardison’s beliefs, if called upon by TWA to do so.” Pet. for Cert, in No. 75-1385, p. 2. This would appear to be the position of Hardison and the EEOC in this Court. Since we reverse the judgment against TWA, we need not pursue further the union’s status in this Court. 6 See McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273, 278-279 (1976); Franks v. Bowman Transportation Co., 424 U. S. 747, 763 (1976); McDonnell Douglas Corp. v. Green, 411 U. S. 792, 800 (1973); Griggs n. Duke Power Co., 401 U. S. 424, 429-430 (1971), From the outset, Congress has said that “[t]he purpose of [Title VII] is to eliminate, through the utilization of formal and informal remedial procedures, discrimination in employment based on race, color, religion, or national origin.” H. R. Rep. No. 914, 88th Cong., 1st Sess., 26 (1963). See 110 Cong. Rec. 13079-13080 (1964) (remarks of Sen. Clark). When Congress amended Title VII in 1972, it did not waver from its principal goal. While Congressmen differed on the best methods to eliminate discrimination in employment, no one questioned the desirability of 72 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. the discrimination is directed against majorities or minorities. McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273, 280 (1976). See Griggs n. Duke Power Co., 401 U. S. 424,431 (1971). The prohibition against religious discrimination soon raised the question of whether it was impermissible under § 703 (a)(1) to discharge or refuse to hire a person who for religious reasons refused to work during the employer’s normal workweek. In 1966 an EEOC guideline dealing with this problem declared that an employer had an obligation under the statute “to accommodate to the reasonable religious needs of employees . . . where such accommodation can be made without serious inconvenience to the conduct of the business.” 29 CFR § 1605.1 (1967). In 1967 the EEOC amended its guidelines to require employers “to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer’s business.” 29 CFR § 1605.1 (1968). The EEOC did not suggest what sort of accommodations are “reasonable” or when hardship to an employer becomes “undue.” 7 seeking that goal. Compare H. R. Rep. No. 92-238 (1971) (majority report of the Committee of the Whole House), with id., at 58 (minority report). 7 The EEOC expressed the view that “undue hardship, for example, may exist where the employee’s needed work cannot be performed by another employee of substantially similiar qualifications during the period of absence of the Sabbath observer,” 29 CFR § 1605.1 (1968). This single example was by no means intended to be exhaustive. In substance, the EEOC left further definition of its guidelines to its review of “each case on an individual basis in an effort to seek an equitable application of these guidelines to the variety of situations which arise due to the varied religious practices of the American people.” Ibid. The EEOC at that time did not purport to change the view expressed in its 1966 guidelines that work schedules generally applicable to all employees may not be unreasonable, even if they do not “operate with uniformity . . . upon 63 TRANS WORLD AIRLINES, INC. v. HARDISON Opinion of the Court 73 This question—the extent of the required accommodation— remained unsettled when this Court, in Dewey v. Reynolds Metals Co., 402 U. S. 689 (1971), affirmed by an equally divided Court the Sixth Circuit’s decision in 429 F. 2d 324 (1970). The discharge of an employee who for religious reasons had refused to work on Sundays was there held by the Court of Appeals not to be an unlawful employment practice because the manner in which the employer allocated Sunday work assignments was discriminatory in neither its purpose nor effect; and consistent with the 1967 EEOC guidelines, the employer had made a reasonable accommodation of the employee’s beliefs by giving him the opportunity to secure a replacement for his Sunday work.8 In part “to resolve by legislation” some of the issues raised in Dewey, 118 Cong. Rec. 706 (1972) (remarks of Sen. Randolph), Congress included the following definition of religion in its 1972 amendments to Title VII: “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accom the religious observances of [all] employees.” The EEOC’s present view, expressed in an amicus curiae brief filed in support of Hardison and the Court of Appeals’ judgment, is now otherwise, at least to some extent. 8 Judgment entered by an equally divided Court is not “entitled to precedential weight,” Neil v. Biggers, 409 U. S. 188, 192 (1972). Our ruling in Dewey thus does not resolve the questions there presented. Other factors, as well, make the impact of Dewey inconclusive. The conduct alleged to be an unlawful employment practice occurred prior to the promulgation of the 1967 guidelines, and the Court of Appeals expressed the view that those guidelines should not be given retroactive effect. Also, an earlier ruling by an arbitrator was held to have conclusively resolved the religious discrimination question in favor of the employer. But see Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974). Finally, the employer in Dewey was not excused from a duty to accommodate; the Court of Appeals simply held that the employer had satisfied any obligation that it might have had under the statute. 74 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. modate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” § 701 (j), 42 U. S. C. § 2000e (j) (1970 ed., Supp. V). The intent and effect of this definition was to make it an unlawful employment practice under §703 (a)(1) for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees. But like the EEOC guidelines, the statute provides no guidance for determining the degree of accommodation that is required of an employer. The brief legislative history of § 701 (j) is likewise of little assistance in this regard.9 The proponent of the measure, Senator Jennings 9 Section 701 (j) was added to the 1972 amendments on the floor of the Senate. The legislative history of the measure consists chiefly of a brief floor debate in the Senate, contained in less than two pages of the Congressional Record and consisting principally of the views of the proponent of the measure, Senator Jennings Randolph. 118 Cong. Rec. 705-706 (1972). The Congressional Record, 118 Cong. Rec. 706-713 (1972), also contains reprints of Dewey and Riley n. Bendix Corp., 330 F. Supp. 583 (MD Fla. 1971), rev’d, 464 F. 2d 1113 (CA5 1972), as well as a brief synopsis of the new provision, which makes reference to Dewey, 118 Cong. Rec. 7167 (1972). The significance of the legislative references to prior case law is unclear. In Riley the District Court ruled that an employer who discharged an employee for refusing to work on his Sabbath had not committed an unfair labor practice even though the employer had not made any effort whatsoever to accommodate the employee’s religious needs. It is clear from the language of § 701 (j) that Congress intended to change this result by requiring some form of accommodation; but this tells us nothing about how much an employer must do to satisfy its statutory obligation. The reference to Dewey is even more opaque: “The purpose of this subsection is to provide the statutory basis for EEOC to formulate guidelines on discrimination because of religion such as those challenged in Dewey v. Reynolds Metals Company, 429 F. 2d 325 (6th Cir. 1970), Affirmed by an equally divided court, 402 U. S. 689 TRANS WORLD AIRLINES, INC. v. HARDISON 75 63 Opinion of the Court Randolph, expressed his general desire “to assure that freedom from religious discrimination in the employment of workers is for all time guaranteed by law,” 118 Cong. Rec. 705 (1972), but he made no attempt to define the precise circumstances under which the “reasonable accommodation” requirement would be applied.10 In brief, the employer’s statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear, but the reach of that obligation has never been spelled out by Congress or by EEOC guidelines. With this in mind, we turn to a consideration of whether TWA has met its obliga- (1971).” 118 Cong. Rec. 7167 (1972). Clearly, any suggestion in Dewey that an employer may not be required to make reasonable accommodation for the religious needs of its employees was disapproved by § 701 (j); but Congress did not indicate that “reasonable accommodation” requires an employer to do more than was done in Dewey, apparently preferring to leave that question open for future resolution by the EEOC. See also n. 8, supra. 10 Cases decided by the Courts of Appeals since the enactment of the 1972 amendments to Title VII similarly provide us with little guidance as to the scope of the employer’s obligation. In circumstances where an employer has declined to take steps that would burden some employees in order to permit another employee or prospective employee to observe his Sabbath, the Fifth, Sixth, and Tenth Circuits have found no violation for failure to accommodate. Williams v. Southern Union Gas Co., 529 F. 2d 483 (CAIO 1976); Reid v. Memphis Publishing Co., 521 F. 2d 512 (CA6 1975), cert, denied, 429 U. S. 964 (1976), pet. for rehearing pending, No. 75-1105; Johnson n. U. S. Postal Service, 497 F. 2d 128 (CA5 1974). But the Fifth and Sixth Circuits have also reached the opposite conclusion on similar facts. Draper n. United States Pipe & Foundry Co., 527 F. 2d 515 (CA6 1975); Cummins v. Parker Seal Co., 516 F. 2d 544 (CA6 1975), aff’d by equally divided Court, 429 U. S. 65 (1976); Riley v. Bendix Corp., 464 F. 2d 1113 (CA5 1972). These apparent intra-Circuit conflicts may be explainable on the basis of the differing facts of each case, but neither the Fifth nor the Sixth Circuit has suggested a theory of decision to justify the differing results that have been reached. 76 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. tion under Title VII to accommodate the religious observances of its employees. Ill The Court of Appeals held that TWA had not made reasonable efforts to accommodate Hardison’s religious needs under the 1967 EEOC guidelines in effect at the time the relevant events occurred.11 In its view, TWA had rejected three reasonable alternatives, any one of which would have satisfied its obligation without undue hardship. First, within the framework of the seniority system, TWA could have permitted Hardison to work a four-day week, utilizing in his place a supervisor or another worker on duty elsewhere. That this would have caused other shop functions to suffer was insufficient to amount to undue hardship in the opinion of the Court of Appeals. Second—according to the Court of Appeals, also within the bounds of the collective-bargaining contract—the company could have filled Hardison’s Saturday shift from other available personnel competent to do the job, of which the court said there were at least 200. That this would have involved premium overtime pay was not deemed an undue hardship. Third, TWA could have arranged a “swap between Hardison and another employee either for another shift or for the Sabbath days.” In response to the assertion that this would have involved a breach of the senior- 11 Ordinarily, an EEOC guideline is not entitled to great weight where, as here, it varies from prior EEOC policy and no new legislative history has been introduced in support of the change. General Electric Co. v. Gilbert, 429 U. S. 125, 146-145 (1976). But where “Congress has not just kept its silence by refusing to overturn the administrative construction, but has ratified it with positive legislation,” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381-382 (1969) (footnote omitted), the guideline is entitled to some deference, at least sufficient in this case to warrant our accepting the guideline as a defensible construction of the pre-1972 statute, i. e., as imposing on TWA the duty of “reasonable accommodation” in the absence of “undue hardship.” We thus need not consider whether §701 (j) must be applied retroactively to the facts of this litigation. TRANS WORLD AIRLINES, INC. v. HARDISON 77 63 Opinion of the Court ity provisions of the contract, the court noted that it had not been settled in the courts whether the required statutory accommodation to religious needs stopped short of transgressing seniority rules, but found it unnecessary to decide the issue because, as the Court of Appeals saw the record, TWA had not sought, and the union had therefore not declined to entertain,, a possible variance from the seniority provisions of the collective-bargaining agreement. The company had simply left the entire matter to the union steward who the Court of Appeals said “likewise did nothing.” We disagree with the Court of Appeals in all relevant respects. It is our view that TWA made reasonable efforts to accommodate and that each of the Court of Appeals’ suggested alternatives would have been an undue hardship within the meaning of the statute as construed by the EEOC guidelines. A It might be inferred from the Court of Appeals’ opinion and from the brief of the EEOC in this Court that TWA’s efforts to accommodate were no more than negligible. The findings of the District Court, supported by the record, are to the contrary. In summarizing its more detailed findings, the District Court observed: “TWA established as a matter of fact that it did take appropriate action to accommodate as required by Title VII. It held several meetings with plaintiff at which it attempted to find a solution to plaintiff’s problems. It did accommodate plaintiff’s observance of his special religious holidays. It authorized the union steward to search for someone who would swap shifts, which apparently was normal procedure.” 375 F. Supp., at 890-891. It is also true that TWA itself attempted without success to find Hardison another job. The District Court’s view was that TWA had done all that could reasonably be expected within the bounds of the seniority system. 78 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. The Court of Appeals observed, however, that the possibility of a variance from the seniority system was never really posed to the union. This is contrary to the District Court’s findings and to the record. The District Court found that when TWA first learned of Hardison’s religious observances in April 1968, it agreed to permit the union’s steward to seek a swap of shifts or days off but that “the steward reported that he was unable to work out scheduling changes and that he understood that no one was willing to swap days with plaintiff.” Id., at 888. Later, in March 1969, at a meeting held just two days before Hardison first failed to report for his Saturday shift, TWA again “offered to accommodate plaintiff’s religious observance by agreeing to any trade of shifts or change of sections that plaintiff and the union could work out .... Any shift or change was impossible within the seniority framework and the union was not willing to violate the seniority provisions set out in the contract to make a shift or change.” Id., at 889. As the record shows, Hardison himself testified that Kussman was willing, but the union was not, to work out a shift or job trade with another employee. App. 76-77. We shall say more about the seniority system, but at this juncture it appears to us that the system itself represented a significant accommodation to the needs, both religious and secular, of all of TWA’s employees. As will become apparent, the seniority system represents a neutral way of minimizing the number of occasions when an employee must work on a day that he would prefer to have off. Additionally, recognizing that weekend work schedules are the least popular, the company made further accommodation by reducing its work force to a bare minimum on those days. B We are also convinced, contrary to the Court of Appeals, that TWA itself cannot be faulted for having failed to work TRANS WORLD AIRLINES, INC. v. HARDISON 79 63 Opinion of the Court out a shift or job swap for Hardison. Both the union and TWA had agreed to the seniority system; the union was unwilling to entertain a variance over the objections of men senior to Hardison; and for TWA to have arranged unilaterally for a swap would have amounted to a breach of the collective-bargaining agreement. (1) Hardison and the EEOC insist that the statutory obligation to accommodate religious needs takes precedence over both the collective-bargaining contract and the seniority rights of TWA’s other employees. We agree that neither a collective-bargaining contract nor a seniority system may be employed to violate the statute,12 but we do not believe that the duty to accommodate requires TWA to take steps inconsistent with the otherwise valid agreement. Collective bargaining, aimed at effecting workable and enforceable agreements between management and labor, lies at the core of our national labor policy, and seniority provisions are universally included in these contracts. Without a clear and express indication from Congress, we cannot agree with Hardison and the EEOC that an agreed-upon seniority system must give way when necessary to accommodate religious observances. The issue is important and warrants some discussion. 12 “This Court has long held that employee expectations arising from a seniority system agreement may be modified by statutes furthering a strong public policy interest.” Franks v. Bowman Transportation Co., 424 U. S., at 778. Cf. Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974). In Franks we held that it was permissible to award retroactive seniority to victims of past discrimination in order to implement the strong congressional policy of making victims of discrimination whole. Franks is not dispositive of the present case since here there is no evidence of past discrimination that must be remedied. Not only is the “make-whole” policy not present in this case, but, as we shall see, the strong congressional policy against discrimination in employment argues against interpreting the statute to require the abrogation of the seniority rights of some employees in order to accommodate the religious needs of others. 80 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. Any employer who, like TWA, conducts an around-the-clock operation is presented with the choice of allocating work schedules either in accordance with the preferences of its employees or by involuntary assignment. Insofar as the varying shift preferences of its employees complement each other, TWA could meet its manpower needs through voluntary work scheduling. In the present case, for example, Hardison’s supervisor foresaw little difficulty in giving Hardison his religious holidays off since they fell on days that most other employees preferred to work, while Hardison was willing to work on the traditional holidays that most other employees preferred to have off. Whenever there are not enough employees who choose to work a particular shift, however, some employees must be assigned to that shift even though it is not their first choice. Such was evidently the case with regard to Saturday work; even though TWA cut back its weekend work force to a skeleton crew, not enough employees chose those days off to staff the Stores Department through voluntary scheduling. In these circumstances, TWA and IAM agreed to give first preference to employees who had worked in a particular department the longest. Had TWA nevertheless circumvented the seniority system by relieving Hardison of Saturday work and ordering a senior employee to replace him, it would have denied the latter his shift preference so that Hardison could be given his. The senior employee would also have been deprived of his contractual rights under the collective-bargaining agreement. It was essential to TWA’s business to require Saturday and Sunday work from at least a few employees even though most employees preferred those days off. Allocating the burdens of weekend work was a matter for collective bargaining. In considering criteria to govern this allocation, TWA and the union had two alternatives: adopt a neutral system, such as seniority, a lottery, or rotating shifts; or allocate days off in TRANS WORLD AIRLINES, INC. v. HARDISON 81 63 Opinion of the Court accordance with the religious needs of its employees. TWA would have had to adopt the latter in order to assure Hardison and others like him of getting the days off necessary for strict observance of their religion, but it could have done so only at the expense of others who had strong, but perhaps nonreligious, reasons for not working on weekends. There were no volunteers to relieve Hardison on Saturdays, and to give Hardison Saturdays off, TWA would have had to deprive another employee of his shift preference at least in part because he did not adhere to a religion that observed the Saturday Sabbath. Title VII does not contemplate such unequal treatment. The repeated, unequivocal emphasis of both the language and the legislative history of Title VII is on eliminating discrimination in employment, and such discrimination is proscribed when it is directed against majorities as well as minorities. See supra, at 71-72. Indeed, the foundation of Hardison’s claim is that TWA and IAM engaged in religious discrimination in violation of 703 (a)(1) when they failed to arrange for him to have Saturdays off. It would be anomalous to conclude that by “reasonable accommodation” Congress meant that an employer must deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others, and we conclude that Title VII does not require an employer to go that far. (2) Our conclusion is supported by the fact that seniority systems are afforded special treatment under Title VII itself. Section 703 (h) provides in pertinent part: “Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of em 82 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. ployment pursuant to a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . 42 U. S. C. § 2000e-2 (h). “[T]he unmistakable purpose of § 703 (h) was to make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII.” Teamsters v. United States, 431 U. S. 324, 352 (1977). See also United Air Lines, Inc. v. Evans, 431 U. S. 553 (1977). Section 703 (h) is “a definitional provision; as with the other provisions of § 703, subsection (h) delineates which employment practices are illegal and thereby prohibited and which are not.” Franks v. Bowman Transportation Co., 424 U. S. 747, 758 (1976). Thus, absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences. There has been no suggestion of discriminatory intent in this case. “The seniority system was not designed with the intention to discriminate against religion nor did it act to lock members of any religion into a pattern wherein their freedom to exercise their religion was limited. It was coincidental that in plaintiff’s case the seniority system acted to compound his problems in exercising his religion.” 375 F. Supp., at 883. The Court of Appeals’ conclusion that TWA was not limited by the terms of its seniority system was in substance nothing more than a ruling that operation of the seniority system was itself an unlawful employment practice even though no discriminatory purpose had been shown. That ruling is plainly inconsistent with the dictates of § 703 (h), both on its face and as interpreted in the recent decisions of this Court.13 13 Franks n. Bowman Transportation Co., is not to the contrary. In Franks we held that “once an illegal discriminatory practice occurring after the effective date of the Act is proved,” 424 U. S., at 762, § 703 (h) does not bar an award of retroactive seniority status to victims of that TRANS WORLD AIRLINES, INC. v. HARDISON 83 63 Opinion of the Court As we have said, TWA was not required by Title VII to carve out a special exception to its seniority system in order to help Hardison to meet his religious obligations.14 discriminatory practice. Here the suggested exception to the TWA-IAM seniority system would not be remedial; the operation of the seniority system itself is said to violate Title VII. In such circumstances, § 703 (h) unequivocally mandates that there is no statutory violation in the absence of a showing of discriminatory purpose. See United Air Lines, Inc. v. Evans, 431 U. S. 553, 558-560 (1977). 14 Despite its hyperbole and rhetoric, the dissent appears to agree with—at least it stops short of challenging—the fundamental proposition that Title VII does not require an employer and a union who have agreed on a seniority system to deprive senior employees of their seniority rights in order to accommodate a junior employee’s religious practices. This is the principal issue on which TWA and the union came to this Court. The dissent is thus reduced to (1) asserting that the statute requires TWA to accommodate Hardison even though substantial expenditures are required to do so; and (2) advancing its own view of the record to show that TWA could have done more than it did to accommodate Hardison without violating the seniority system or incurring substantial additional costs. We reject the former assertion as an erroneous construction of the statute. As for the latter, we prefer the findings of the District Judge who heard the evidence. Thus, the dissent suggests that through further efforts TWA or the union might have arranged a temporary or permanent job swap within the seniority system, despite the District Court’s express finding, supported by the record, that “[t]he seniority provisions . . . precluded the possibility of plaintiff’s changing his shift.” 375 F. Supp., at 884. Similarly, the dissent offers two alternatives—sending Hardison back to Building 1 or allowing him to work extra days without overtime pay— that it says could have been pursued by TWA or the union, even though neither of the courts below even hinted that these suggested alternatives would have been feasible under the circumstances. Furthermore, Buildings 1 and 2 had separate seniority lists, and insofar as the record shows, a return to Building 1 would not have solved Hardison’s problems. Hardison himself testified that he “gave up” his Building 1 seniority when he came to Building 2, App. 104, and that the union would not accept his early return to Building 1 in part “because the problem of seniority came up again.” Id., at 71. We accept the District Court’s findings that TWA had done all that it could do to accommodate Hardison’s religious beliefs without either incurring substantial costs or violating the seniority rights of other employees. See 375 F. Supp., at 891. 84 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. c The Court of Appeals also suggested that TWA could have permitted Hardison to work a four-day week if necessary in order to avoid working on his Sabbath. Recognizing that this might have left TWA short-handed on the one shift each week that Hardison did not work, the court still concluded that TWA would suffer no undue hardship if it were required to replace Hardison either with supervisory personnel or with qualified personnel from other departments. Alternatively, the Court of Appeals suggested that TWA could have replaced Hardison on his Saturday shift with other available employees through the payment of premium wages. Both of these alternatives would involve costs to TWA, either in the form of lost efficiency in other jobs or higher wages. To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.15 Like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion. By suggesting that TWA should incur certain costs in order to give Hardison Saturdays off the Court of Appeals would in effect require TWA to finance an additional Saturday off and then to choose the employee who will enjoy it on the basis of his religious beliefs. While incurring extra costs to secure a replacement for Hardison might remove the necessity of compelling another employee to work involun- 15 The dissent argues that “the costs to TWA of either paying overtime or not replacing respondent would [not] have been more than de minimis.” Post, at 92 n. 6. This ignores, however, the express finding of the District Court that “[b]oth of these solutions would have created an undue burden on the conduct of TWA’s business,” 375 F. Supp., at 891, and it fails to take account of the likelihood that a company as large as TWA may have many employees whose religious observances, like Hardison’s, prohibit them from working on Saturdays or Sundays. TRANS WORLD AIRLINES, INC. v. HARDISON 85 63 Marshall, J., dissenting tarily in Hardison’s place, it would not change the fact that the privilege of having Saturdays off would be allocated according to religious beliefs. As we have seen, the paramount concern of Congress in enacting Title VII was the elimination of discrimination in employment. In the absence of clear statutory language or legislative history to the contrary, we will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath. Reversed. Mr. Justice Marshall, with whom Mr. Justice Brennan joins, dissenting. One of the most intractable problems arising under Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., has been whether an employer is guilty of religious discrimination when he discharges an employee (or refuses to hire a job applicant) because of the employee’s religious practices. Particularly troublesome has been the plight of adherents to minority faiths who do not observe the holy days on which most businesses are closed—Sundays, Christmas, and Easter— but who need time off for their own days of religious observance. The Equal Employment Opportunity Commission has grappled with this problem in two sets of regulations, and in a long line of decisions. Initially the Commission concluded that an employer was “free under Title VII to establish a normal workweek . . . generally applicable to all employees,” and that an employee could not “demand any alteration in [his work schedule] to accommodate his religious needs.” 29 CFR §§ 1605.1 (a)(3), (b)(3) (1967). Eventually, however, the Commission changed its view and decided that employers must reasonably accommodate such requested schedule changes except where “undue hardship” would result—for example, “where the employee’s needed work cannot be per 86 OCTOBER. TERM, 1976 Marshall, J., dissenting 432 U. S. formed by another employee of substantially similar qualifications during the period of absence.” 29 CFR § 1605.1 (b) (1976) ? In amending Title VII in 1972 Congress confronted the same problem, and adopted the second position of the EEOC. Pub. L. 92-261, § 2(7), 86 Stat. 103, codified at 42 U. S. C. § 2Q00e (j) (1970 ed., Supp. V). Both before and after the 1972 amendment the lower courts have considered at length the circumstances in which employers must accommodate the religious practices of employees, reaching what the Court correctly describes as conflicting results, ante, at 75 n. 10. And on two occasions this Court has attempted to provide guidance to the lower courts, only to find ourselves evenly divided. Parker Seal Co. v. Cummins, 429 U. S. 65 (1976); Dewey v. Reynolds Metals Co., 402 U. S. 689 (1971). Today s decision deals a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices. The Court holds, in essence, that although the EEOC regulations and the Act state that an employer must make reasonable adjustments in his work demands to take account of religious observances, the regulation and Act do not Th© Court s statement that in promulgating the second guidelines ft] he EEOC . . . did not purport to change the view expressed in its 1966 guidelines that work schedules generally applicable to all employees may not be unreasonable,” ante, at 72 n. 7, is incomprehensible. The preface to the later guidelines, 32 Fed. Reg. 10298 (1967), states that the Commission hereby amends § 1605.1, Guidelines on Discrimina-tion Because of Religion. . . . Section 1605.1 as amended shall read as follows . . . ” Thus the later guidelines expressly repealed the earlier guidelines. Moreover, the example of “undue hardship” given in the new guidelines and quoted in text makes clear that the Commission believed, contrary to its earlier view, that in certain instances employers would be required to excuse employees from work for religious observances. In its decisions subsequent to the formulation of the guidelines, the Commission has consistently held that employers must accommodate Sabbath observances where substitute employees are available. Compare CCH EEOC Decisions (1973) H 6060, 6154, with, e. g., ITO 6120 6310 6367. TRANS WORLD AIRLINES, INC. v. HARDISON 87 63 Marshall, J., dissenting really mean what they say. An employer, the Court concludes, need not grant even the most minor special privilege to religious observers to enable them to follow their faith. As a question of social policy, this result is deeply troubling, for a society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religion or their job. And as a matter of law today’s result is intolerable, for the Court adopts the very position that Congress expressly rejected in 1972, as if we were free to disregard congressional choices that a majority of this Court thinks unwise. I therefore dissent. I With respect to each of the proposed accommodations to respondent Hardison’s religious observances that the Court discusses, it ultimately notes that the accommodation would have required “unequal treatment,” ante, at 81, 84-85, in favor of the religious observer. That is quite true. But if an accommodation can be rejected simply because it involves preferential treatment, then the regulation and the statute, while brimming with “sound and fury,” ultimately “signiffy] nothing.” The accommodation issue by definition arises only when a neutral rule of general applicability conflicts with the religious practices of a particular employee. In some of the reported cases, the rule in question has governed work attire; in other cases it has required attendance at some religious function; in still other instances, it has compelled membership in a union; and in the largest class of cases, it has concerned work schedules.2 What all these cases have in common is an employee who could comply with the rule only by violating what the employee views as a religious commandment. In each 2 Many of the cases are collected in Annot., 22 ALR Fed. 580 (1975). For a perceptive discussion of the issues posed by the cases see Note, Accommodation of an Employee’s Religious Practices Under Title VII, 1976 U. Ill. L. Forum 867. 88 OCTOBER TERM, 1976 Marshall, J., dissenting 432U.S. instance, the question is whether the employee is to be exempt from the rule’s demands. To do so will always result in a privilege being “allocated according to religious beliefs,” ante, at 85, unless the employer gratuitously decides to repeal the rule in toto. What the statute says, in plain words, is that such allocations are required unless “undue hardship” would result. The point is perhaps best made by considering a not altogether hypothetical example. See CCH EEOC Decisions (1973) V 6180. Assume that an employer requires all employees to wear a particular type of hat at work in order to make the employees readily identifiable to customers. Such a rule obviously does not, on its face, violate Title VII, and an employee who altered the uniform for reasons of taste could be discharged. But a very different question would be posed by the discharge of an employee who, for religious reasons, insisted on wearing over her hair a tightly fitted scarf which was visible through the hat. In such a case the employer could accommodate this religious practice without undue hardship—or any hardship at all. Yet as I understand the Court’s analysis—and nothing in the Court’s response, ante, at 83 n. 14, 84 n. 15, is to the contrary—the accommodation would not be required because it would afford the privilege of wearing scarfs to a select few based on their religious beliefs. The employee thus would have to give up either the religious practice or the job. This, I submit, makes a mockery of the statute. In reaching this result, the Court seems almost oblivious of the legislative history of the 1972 amendments to Title VII which is briefly recounted in the Court’s opinion, ante, at 73-75. That history is far more instructive than the Court allows. After the EEOC promulgated its second set of guidelines requiring reasonable accommodations unless undue hardship would result, at least two courts issued decisions questioning, whether the guidelines were consistent with Title VII. Dewey n. Reynolds Metals Co., 429 F. 2d 324 (CA6 1970), TRANS WORLD AIRLINES, INC. v. HARDISON 89 63 Marshall, J., dissenting aff’d by equally divided Court, 402 U. S. 689 (1971); Riley v. Bendix Corp., 330 F. Supp. 583 (MD Fla. 1971), rev’d, 464 F. 2d 1113 (CA5 1972). These courts reasoned, in language strikingly similar to today’s decision, that to excuse religious observers from neutral work rules would “discriminate against . . . other employees” and “constitute unequal administration of the collective-bargaining agreement.” Dewey v. Reynolds Metals Co., supra, at 330. They therefore refused to equate “religious discrimination with failure to accommodate.” 429 F. 2d, at 335. When Congress was reviewing Title VII in 1972, Senator Jennings Randolph informed the Congress of these decisions which, he said, had “clouded” the meaning of religious discrimination. 118 Cong. Rec. 706 (1972). He introduced an amendment, tracking the language of the EEOC regulation, to make clear that Title VII requires religious accommodation, even though unequal treatment would result. The primary purpose of the amendment, he explained, was to protect Saturday Sabbatarians like himself from employers who refuse “to hire or to continue in employment employees whose religious practices rigidly require them to abstain from work in the nature of hire on particular days.” Id., at 705. His amendment was unanimously approved by the Senate on a roll-call vote, id., at 731, and was accepted by the Conference Committee, H. R. Rep. No. 92-899, p. 15 (1972); S. Rep. No. 92-681, p. 15 (1972), whose report was approved by both Houses, 118 Cong. Rec. 7169, 7573 (1972). Yet the Court today, in rejecting any accommodation that involves preferential treatment, follows the Dewey decision in direct contravention of congressional intent. The Court’s interpretation of the statute, by effectively nullifying it, has the singular advantage of making consideration of petitioners’ constitutional challenge unnecessary. The Court does not even rationalize its construction on this ground, however, nor could it, since “resort to an alternative construction to avoid deciding a constitutional question is appro 90 OCTOBER TERM, 1976 Marshall, J., dissenting 432 U. S. priate only when such a course is ‘fairly possible’ or when the statute provides a ‘fair alternative’ construction.” Swain n. Pressley, 430 U. S. 372, 378 n. 11 (1977). Moreover, while important constitutional questions would be posed by interpreting the law to compel employers (or fellow employees) to incur substantial costs to aid the religious observer,3 not all accommodations are costly, and the constitutionality of the statute is not placed in serious doubt simply because it sometimes requires an exemption from a work rule. Indeed, this Court has repeatedly found no Establishment Clause problems in exempting religious observers from state-imposed duties, e. g., Wisconsin v. Yoder, 406 U. S. 205, 234-235, n. 22 (1972); Sherbert v. Verner, 374 U. S. 398, 409 (1963); Zorach v. Clauson, 343 U. S. 306 (1952), even when the exemption was in no way compelled by the Free Exercise Clause, e. g., Gillette v. United States, 401 U. S. 437 (1971); Welsh v. United States, 398 U. S. 333, 371-372 (1970) (White, J., dissenting); Sherbert v. Verner, supra, at 422 (Harlan, J., dissenting); Braunjeld v. Brown, 366 U. S. 599, 608 (1961) (dictum); McGowan v. Maryland, 366 U. S. 420, 520 (1961) (opinion of Frankfurter, J.).4 If the State does not establish 3 Because of the view I take of the facts, see Part II, infra, I find it unnecessary to decide how much cost an employer must bear before he incurs “undue hardship.” I also leave for another day the merits of any constitutional objections that could be raised if the law were construed to require employers (or employees) to assume significant costs in accommodating. 4 The exemption here, like those we have upheld, can be claimed by any religious practitioner, a term that the EEOC has sensibly defined to include atheists, e. g, CCH EEOC Decisions (1973) If 6316, see also Young v. Southwestern Savings & Loan Assn., 509 F. 2d 140 (CA5 1975), and persons not belonging to any organized sect but who hold “ ‘[a] sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption,’ ” CCH Employment Practices If 6500, quoting United States v. Seeger, 380 U. S. 163, 176 (1965). The purpose and primary effect of requiring such exemptions is the wholly secular one of securing TRANS WORLD AIRLINES, INC. v. HARDISON 91 63 Marshall, J., dissenting religion over nonreligion by excusing religious practitioners from obligations owed the State, I do not see how the State can be said to establish religion by requiring employers to do the same with respect to obligations owed the employer. Thus, I think it beyond dispute that the Act does—and, consistently with the First Amendment, can—require employers to grant privileges to religious observers as part of the accommodation process. II Once it is determined that the duty to accommodate sometimes requires that an employee be exempted from an otherwise valid work requirement, the only remaining question is whether this is such a case: Did TWA prove that it exhausted all reasonable accommodations, and that the only remaining alternatives would have caused undue hardship on TWA’s business? To pose the question is to answer it, for all that the District Court found TWA had done to accommodate respondent’s Sabbath observance was that it “held several meetings with [respondent] . . . [and] authorized the union steward to search for someone' who would swap shifts.” 375 F. Supp. 877, 890-891 (WD Mo. 1974). To conclude that TWA, one of the largest air carriers in the Nation, would have suffered undue hardship had it done anything more defies both reason and common sense. The Court implicitly assumes that the only means of accommodation open to TWA were to compel an unwilling employee to replace Hardison; to pay premium wages to a voluntary substitute; or to employ one less person during equal economic opportunity to members of minority religions. Cf., e. g., Lemon v. Kurtzman, 403 U. S. 602 (1971). And the mere fact that the law sometimes requires special treatment of religious practitioners does not present the dangers of “sponsorship, financial support, and active involvement of the sovereign in religious activity,” against which the Establishment Clause is principally aimed, Walz v. Tax Comm’n, 397 U. S. 664, 668 (1970). 92 OCTOBER TERM, 1976 Marshall, J., dissenting 432U.S. respondent’s Sabbath shift.5 Based on this assumption, the Court seemingly finds that each alternative would have involved undue hardship not only because Hardison would have been given a special privilege, but also because either another employee would have been deprived of rights under the collective-bargaining agreement, ante, at 80-81, or because “more than a de minimis cost,” ante, at 84, would have been imposed on TWA. But the Court’s myopic view of the available options is not supported by either the District Court’s findings or the evidence adduced at trial. Thus, the Court’s conclusion cannot withstand analysis, even assuming that its rejection of the alternatives it does discuss is justifiable.6 5 It is true that these are the only options the Court of Appeals discussed. But that court found that TWA could have adopted these options without undue hardship; once that conclusion is rejected it is incumbent on this Court to decide whether any other alternatives were available that would not have involved such hardship. 61 entertain grave doubts on both factual and legal grounds about the validity of the Court’s rejection of the options it considers. As a matter of fact, I do not believe the record supports the Court’s suggestion that the costs to TWA of either paying overtime or not replacing respondent would have been more than de minimis. While the District Court did state, as the Court notes, ante, at 84 n. 15, that both alternatives “would, have created an undue burden on the conduct of TWA’s business,” 375 F. Supp., at 891, the court did not explain its understanding of the phrase “undue burden,” and may have believed that such a burden exists whenever any cost is incurred by the employer, .no matter how slight. Thus the District Court’s assertion falls far short of a factual “finding” that the costs of these accommodations would be more than de minimis. Moreover, the record is devoid of any evidence documenting the extent of the “efficiency loss” TWA would have incurred had it used a supervisor or an already scheduled employee to do respondent’s work, and while the stipulations make clear what overtime would have cost, the price is far from staggering: $150 for three months, at which time respondent would have been eligible to transfer back to his previous department. The Court’s suggestion that the cost of accommodation must be evaluated in light of the “likelihood that . . . TWA may have many employees whose religious observances . . . prohibit them from working on Satur 63 TRANS WORLD AIRLINES, INC. v. HARDISON Marshall, J., dissenting 93 To begin with, the record simply does not support the Court’s assertion, made without accompanying citations, that “[t]here were no volunteers to relieve Hardison on Saturdays,” ante, at 81. Everett Kussman, the manager of the department in which respondent worked, testified that he had made no effort to find volunteers, App. 136,7 and the union stipulated that its steward had not done so either, id., at 158.8 Thus, contrary to the Court’s assumption, there may have been one or more employees who, for reasons of either sympathy or personal convenience, willingly would have substi days or Sundays,” ante at 84 n. 15, is not only contrary to the record, which indicates that only one other case involving a conflict between work schedules and Sabbath observance had arisen at TWA since 1945, Tr. 312-314, but also irrelevant, since the real question is not whether such employees exist but whether they could be accommodated without significant expense. Indeed, to the extent that TWA employed Sunday as well as Saturday Sabbatarians, the likelihood of accommodation being costly would diminish, since trades would be more feasible. As a matter of law, I seriously question whether simple English usage permits “undue hardship” to be interpreted to mean “more than de minimis cost,” especially when the examples the guidelines give of possible undue hardship is the absence of a qualified substitute, supra, at 85-86. I therefore believe that in the appropriate case we would be compelled to confront the constitutionality of requiring employers to bear more than de minimis costs. The issue need not be faced here, however, since an almost cost-free accommodation was possible. 7 Wilbur Stone, Director of Industrial Relations, Technical Service, at TWA confirmed Kussman’s testimony. App. 157—158. In its Response to Plaintiff’s Suggested Findings of Fact, TWA conceded that it “did not attempt to find a replacement for plaintiff.” App. in No. 74-1424 (CA6) P- 191, T3(l). 8 The Court relies, ante, at 78, on the District Court’s conclusory assertion that “[a]ny shift or change was impossible within the seniority framework.” 375 F. Supp., at 889. But the District Court also found that “TWA did not take part in the search for employees willing to swap shifts . . . and it was admitted at trial that the Union made no real effort.” Id., at 888. Thus, the District Court’s statement concerning the impact of “the seniority framework” lends no support to the Court’s assertion that there were no volunteers. See also n. 10, injra. 94 OCTOBER TERM, 1976 Marshall, J., dissenting 432 U. S. tuted for respondent on Saturdays until respondent could either regain the non-Saturday shift he had held for the three preceding months9 or transfer back to his old department where he had sufficient seniority to avoid Saturday work. Alternatively, there may have been an employee who preferred respondent’s Thursday-Monday daytime shift to his own; in fact, respondent testified that he had informed Kussman and the union steward that the clerk on the Sunday-Thursday night shift (the “graveyard” shift) was dissatisfied with his hours. Id., at 70. Thus, respondent’s religious observance might have been accommodated by a simple trade of days or shifts without necessarily depriving any employee of his or her contractual rights10 and without 9 Respondent lost the non-Sabbath shift when an employee junior to him went on vacation. The vacation was to last only two weeks, however, and the record does not explain why respondent did not regain his shift at the end of that time. 10 If, as appears likely, no one senior to the substitute employee desired respondent’s Sabbath assignment or his Thursday-Monday shift, then the substitute could have transferred to respondent’s position without depriving anyone of his or her seniority expectations. Similarly, if, as also appears probable, no one senior to respondent desired the substitute’s spot, respondent could have assumed it. Such a trade would not have deprived any employee of seniority expectations. The trade apparently still would have violated the collective-bargaining agreement, however, since the agreement authorized transfers only to vacant jobs. This is undoubtedly what the District Court meant when it found that “the seniority framework” precluded shift changes. See n. 8, supra. Indeed, the first time in the District Court’s opinion that such a finding appears, it is preceded by the finding that “there were no jobs open for bid.” 375 F. Supp., at 884. Even if a trade could not have been arranged without disrupting seniority expectations TWA could have requested the Union Relief Committee to approve an exemption. The record reveals that the Committee’s function was to ameliorate the rigidity of the system, App. 130, and tha,t on at least one occasion it had approved a permanent transfer apparently outside the seniority system, id., at 144. TRANS WORLD AIRLINES, INC. v. HARDISON 95 63 Marshall, J., dissenting imposing significant costs on TWA. Of course, it is also possible that no trade—or none consistent with the seniority system—could have been arranged. But the burden under the EEOC regulation is on TWA to establish that a reasonable accommodation was not possible. 29 CFR § 1605.1 (c) (1976). Because it failed either to explore the possibility of a voluntary trade or to assure that its delegate, the union steward, did so, TWA was unable to meet its burden. Nor was a voluntary trade the only option open to TWA that the Court ignores; to the contrary, at least two other options are apparent from the record. First, TWA could have paid overtime to a voluntary replacement for respondent—assuming that someone would have been willing to work Saturdays for premium pay—and passed on the cost to respondent. In fact, one accommodation Hardison suggested would have done just that by requiring Hardison to work overtime when needed at regular pay. Under this plan, the total overtime cost to the employer—and the total number of overtime hours available for other employees—would not have reflected Hardison’s Sabbath absences. Alternatively, TWA could have transferred respondent back to his previous department where he had accumulated substantial seniority, as respondent also suggested.11 Admittedly, both options would have violated the collective-bargaining agreement; the former because the agreement required that employees working over 40 hours per week receive premium pay, and the latter because the agreement prohibited employees from trans 11 The Court states, ante, at 83 n. 14, that because of TWA’s departmental seniority system, such a transfer “would not have solved Hardison’s problems.” But respondent testified without contradiction that had he returned to his previous department he would have regained his seniority in that department, and thereby could have avoided work on his Sabbath. App. 70-71. According to respondent, the only objection that was raised to this solution was that it violated the rule prohibiting transfers twice within six months. Ibid. 96 OCTOBER TERM, 1976 Marshall, J., dissenting 432 U. S. ferring departments more than once every six months. But neither accommodation would have deprived any other employee of rights under the contract or violated the seniority system in any way.12 Plainly an employer cannot avoid his duty to accommodate by signing a contract that precludes all reasonable accommodations; even the Court appears to concede as much, ante, at 79. Thus I do not believe it can be even seriously argued that TWA would have suffered “undue hardship” to its business had it required respondent to pay the extra costs of his replacement, or had it transferred respondent to his former department.13 What makes today’s decision most tragic, however, is not that respondent Hardison has been needlessly deprived of his livelihood simply because he chose to follow the dictates of his conscience. Nor is the tragedy exhausted by the impact it w’ill have on thousands of Americans like Hardison who could be forced to live on welfare as the price they must pay for 12 The accommodations would have disadvantaged respondent to some extent, but since he suggested both options I do not consider whether an employer would satisfy his duty to accommodate by offering these choices to an unwilling employee. Cf. Draper v. United States Pipe & Foundry Co., 527 F. 2d 515 (CA6 1975) (employer does not discharge his duty to accommodate by offering to transfer an electrician to an unskilled position). 13 Of course, the accommodations discussed in the text would have imposed some administrative inconvenience on TWA. Petitioners do not seriously argue, however, that this consequence of accommodation makes the statute violative of the Establishment Clause. Were such an argument to be made, our prior decision upholding exemptions from state-created duties, see supra, at 90, would provide a complete answer, since the exemptions we have sustained have placed not inconsiderable burdens on private parties. For example, the effect of excusing conscientious objectors from military conscription is to require a nonobjector to serve instead, yet we have repeatedly upheld this exemption. E. g., Selective Draft Law Cases, 245 U. S. 366, 389-390 (1918). See also Gallagher v. Crown Kosher Market, 366 U. S. 617, 627 (1961) (upholding law prohibiting private citizens from engaging in specified activities within a fixed distance from places of public worship). TRANS WORLD AIRLINES, INC. v. HARDISON 97 63 Marshall, J., dissenting worshiping their God.14 The ultimate tragedy is that despite Congress’ best efforts, one of this Nation’s pillars of strength— our hospitality to religious diversity—has been seriously eroded. All Americans will be a little poorer until today’s decision is erased. I respectfully dissent. 14 Ironically, the fiscal costs to society of today’s decision may exceed the costs that would accrue if employers were required to make all accommodations without regard to hardship, since it is clear that persons on welfare cannot be denied benefits because they refuse to take jobs that would prevent them from observing religious holy days, see Sherbert v. Verner, 374 U. S. 398 (1963). 98 OCTOBER TERM, 1976 Syllabus 432 U. S. MANSON, CORRECTION COMMISSIONER v. BRATHWAITE CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 75-871. Argued November 29, 1976—Decided June 16, 1977 Glover, a trained Negro undercover state police officer, purchased heroin from a seller through the open doorway of an apartment while standing for two or three minutes within two feet of the seller in a hallway illuminated by natural light. A few minutes later Glover described the seller to another police officer as being “a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build.” The other police officer, suspecting from the description that respondent might be the seller, left a police photograph of respondent at the office of Glover, who viewed it two days later and identified it as the picture of the seller. In a Connecticut court, respondent was charged with, and convicted of, possession and sale of heroin, and at his trial, held some eight months after the crime, the photograph was received in evidence without objection and Glover testified that there was no doubt that the person shown in the photograph was respondent and also made a positive in-court identification without objection. After the Connecticut Supreme Court affirmed the conviction, respondent filed a petition for habeas corpus in Federal District Court, alleging that the admission of the identification testimony at his state trial deprived him of due process of law in violation of the Fourteenth Amendment. The District Court dismissed the petition, but the Court of Appeals reversed, holding that evidence as to the photograph should have been excluded, regardless of reliability, because the examination of the single photograph was unnecessary and suggestive, and that the identification was unreliable in any event. Held: The Due Process Clause of the Fourteenth Amendment does not compel the exclusion of the identification evidence. Pp. 109-117. (a) Reliability is the linchpin in determining the admissibility of identification testimony for confrontations occurring both prior to and after Stovall v. Denno, 388 U. S. 293-, wherein it was held that the determination depends on the “totality of the circumstances.” Id., at 302. The factors to be weighed against the corrupting effect of the suggestive procedure in assessing reliability are set out in Neil n. Biggers, 409 U. S. 188, and include the witness’ opportunity to view the criminal MANSON v. BRATHWAITE 99 98 Opinion of the Court at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crimp and the confrontation. Pp. 109-114. (b) Under the totality of the circumstances in this case, there does not exist “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U. S. 377, 384. Glover, no casual observer but a trained police officer, had a sufficient opportunity to view the suspect, accurately described him, positively identified respondent’s photograph as that of the suspect, and made the photograph identification only two days after the crimp. Pp. 114-117. 527 F. 2d 363, reversed. Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, Rehnquist, and Stevens, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 117. Marshall^ J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 118. Bernard D. Gaffney argued the cause for petitioner. With him on the brief was George D. Stoughton. David S. Golub argued the cause for respondent. With him on the brief were Frederick H. Weisberg, Richard A. Silver, and Jay H. Sandak. Mr. Justice Blackmun delivered the opinion of the Court. This case presents the issue as to whether the Due Process Clause of the Fourteenth Amendment compels the exclusion, in a state criminal trial, apart from any consideration of reliability, of pretrial identification evidence obtained by a police procedure that was both suggestive and unnecessary. This Court’s decisions in Stovall v. Denno, 388 U. S. 293 (1967), and Neil v. Biggers, 409 U. S. 188 (1972), are particularly implicated. I Jimmy D. Glover, a full-time trooper of the Connecticut State Police, in 1970 was assigned to the Narcotics Division in an undercover capacity. On May 5 of that year, about 100 OCTOBER TERM, 1976 Opinion of the Court 432U.S. 7:45 p. m., e. d. t., and while there was still daylight, Glover and Henry Alton Brown, an informant, went to an apartment building at 201 Westland, in Hartford, for the purpose of purchasing narcotics from “Dickie Boy” Cicero, a known narcotics dealer. Cicero, it was thought, lived on the third floor of that apartment building. Tr. 45-46, 68? Glover and Brown entered the building, observed by backup Officers D’Onofrio and Gaffey, and proceeded by stairs to the third floor. Glover knocked at the door of one of the two apartments served by the stairway.2 The area was illuminated by natural light from a window in the third floor hallway. Id., at 27-28. The door was opened 12 to 18 inches in response to the knock. Glover observed a man standing at the door and, behind him, a woman. Brown identified himself. Glover then asked for “two things” of narcotics. Id., at 29. The man at the door held out his hand, and Glover gave him two $10 bills. The door closed. Soon the man returned and handed Glover two glassine bags.3 While the door was open, Glover stood within two feet of the person from whom he made the purchase and observed his face. Five to seven minutes elapsed from the 1 The references are to the transcript of the trial in the Superior Court of Hartford County, Conn. The United States District Court, on federal habeas, pursuant to agreement of the parties, Tr. of Oral Arg. 23, conducted no evidentiary hearing. 2 It appears that the door on which Glover knocked may not have been that of the Cicero apartment. Petitioner concedes, in any event, that the transaction effected “was with some other person than had been intended.” Id., at 4. 3 This was Glover’s testimony. Brown later was called as a witness for the prosecution. He testified on direct examination that, due to his then use of heroin, he had no clear recollection of the details of the incident. Tr. 81-82. On cross-examination, as in an interview with defense counsel the preceding day, he said that it was a woman who opened the door, received the money, and thereafter produced the narcotics. Id., at 84, 86-87. On redirect, he acknowledged that he was using heroin daily at the time, that he had had some that day, and that there was “an inability to recall and remember events.” Id., at 88-89. MANSON v. BRATHWAITE 101 98 Opinion of the Court time the door first opened until it closed the second time. Id., at 30-33. Glover and Brown then left the building. This was about eight minutes after their arrival. Glover drove to headquarters where he described the seller to D’Onofrio and Gaffey. Glover at that time did not know the identity of the seller. Id., at 36. He described him as being “a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build. He was wearing at the time blue pants and a plaid shirt.” Id., at 36-37. D’Onofrio, suspecting from this description that respondent might be the seller, obtained a photograph of respondent from the Records Division of the Hartford Police Department. He left it at Glover’s office. D’Onofrio was not acquainted with respondent personally, but did know him by sight and had seen him “ [s]everal times” prior to May 5. Id., at 63-65. Glover, when alone, viewed the photograph for the first time upon his return to headquarters on May 7; he identified the person shown as the one from whom he had purchased the narcotics. Id., at 36-38. The toxicological report on the contents of the glassine bags revealed the presence of heroin. The report was dated July 16, 1970. Id., at 75-76. Respondent was arrested on July 27 while visiting at the apartment of a Mrs. Ramsey on the third floor of 201 Westland. This was the apartment at which the narcotics sale had taken place on May 5.4 Respondent was charged, in a two-count information, with possession and sale of heroin, in violation of Conn. Gen. Stat. (Rev. of 1958, as amended in 1969), §§ 19-48la and 19-480a 4 Respondent testified: “Lots of times I have been there before in that building.” He also testified that Mrs. Ramsey was a friend of his wife, that her apartment was the only one in the building he ever visited, and that he and his family, consisting of his wife and five children, did not live there but at 453 Albany Avenue, Hartford. Id., at 111-113. 102 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. (1977).5 At his trial in January 1971, the photograph from which Glover had identified respondent was received in evidence without objection on the part of the defense. Tr. 38. Glover also testified that, although he had not seen respondent in the eight months that had elapsed since the sale, “there [was] no doubt whatsoever” in his mind that the person shown on the photograph was respondent. Id., at 41-42. Glover also made a positive in-court identification without objection. Id., at 37-38. No explanation was offered by the prosecution for the failure to utilize a photographic array or to conduct a lineup. Respondent, who took the stand in his own defense, testified that on May 5, the day in question, he had been ill at his Albany Avenue apartment (“a lot of back pains, muscle spasms ... a bad heart . . . high blood pressure . . . neuralgia in my face, and sinus,” id., at 106), and that at no time on that particular day had he been at 201 Westland. Id., at 106, 113-114. His wife testified that she recalled, after her husband had refreshed her memory, that he was home all day on May 5. Id., at 164-165. Doctor Wesley M. Vietzke, an internist and assistant professor of medicine at the University of Connecticut, testified that respondent had consulted him on April 15, 1970, and that he took a medical history from him, heard his complaints about his back and facial pain, and discovered that he had high blood pressure. Id., at 129-131. The physician found respondent, subjectively, “in great discomfort.” Id., at 135. Respondent in fact underwent surgery for a herniated disc at L5 and SI on August 17. Id., at 157. The jury found respondent guilty on both counts of the information. He received a. sentence of not less than six nor 5 These statutes have since been amended in ways that do not affect' the present litigation. See 1971 Conn. Pub. Acts 812, § 1; 1972 Conn. Pub. Acts 278, §§25 and 26; Conn. Pub. Acts 73-137, § 10; Conn. Pub. Acts 74-332, §§ 1 and 3; Conn. Pub. Acts 75-567, § 65. MANSON v. BRATHWAITE 103 98 Opinion of the Court more than nine years. His conviction was affirmed per curiam by the Supreme Court of Connecticut. State v. Brathwaite, 164 Conn. 617, 325 A. 2d 284 (1973). That court noted the absence of an objection to Glover’s in-court identification and concluded that respondent “has not shown that substantial injustice resulted from the admission of this evidence.” Id., at 619, 325 A. 2d, at 285. Under Connecticut law, substantial injustice must be shown before a claim of error not made or passed on by the trial court will be considered on appeal. Ibid. Fourteen months later, respondent filed a petition for habeas corpus in the United States District Court for the District of Connecticut. He alleged that the admission of the identification testimony at his state trial deprived him of due process of law to which he was entitled under the Fourteenth Amendment. The District Court, by an unreported written opinion based on the court’s review of the state trial transcript,6 dismissed respondent’s petition. On appeal, the United States Court of Appeals for the Second Circuit reversed, with instructions to issue the writ unless the State gave notice of a desire to retry respondent and the new trial occurred within a reasonable time to be fixed by the District Judge.7 527 F. 2d 363 (1975). In brief summary, the court felt that evidence as to the photograph should have been excluded, regardless of relia 6 Neither party submitted a request to the District Court for an independent factual hearing on respondent’s claims. See n. 1, supra. 7 Although no objection was made in the state trial to the admission of the identification testimony and the photograph, the issue of their propriety as evidence was raised on the appeal to the Supreme Court of Connecticut. Petitioner has asserted no claims related to the failure of the respondent either to exhaust state remedies or to make contemporaneous objections. The District Court and the Court of Appeals, each for a somewhat different reason, App. to Pet. for Cert. 7a-8a; 527 F. 2d, at 366, concluded that the merits were properly before them. We are not inclined now to rule otherwise. 104 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. bility, because the examination of the single photograph was unnecessary and suggestive. And, in the court’s view, the evidence was unreliable in any event. We granted certiorari. 425 U. S. 957 (1976). II Stovall v. Denno, supra, decided in 1967, concerned a petitioner who had been convicted in a New York court of murder. He was arrested the day following the crime and was taken by the police to a hospital where the victim’s wife, also wounded in the assault, was a patient. After observing Stovall and hearing him speak, she identified him as the murderer. She later made an in-court identification. On federal habeas, Stovall claimed the identification testimony violated his Fifth, Sixth, and Fourteenth Amendment rights. The District Court dismissed the petition, and the Court of Appeals, en banc, affirmed. This Court also affirmed. On the identification issue, the Court reviewed the practice of showing a suspect singly for purposes of identification, and the claim that this was so unnecessarily suggestive and conducive to irreparable mistaken identification that it constituted a denial of due process of law. The Court noted that the practice “has been widely condemned,” 388 U. S., at 302, but it concluded that “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.” Ibid. In that case, showing Stovall to the victim’s spouse “was imperative.” The Court then quoted the observations of the Court of Appeals, 355 F. 2d 731, 735 (CA2 1966), to the effect that the spouse was the only person who could possibly exonerate the accused; that the hospital was not far from the courthouse and jail; that no one knew how long she might live; that she was not able to visit the jail; and that taking Stovall to the hospital room was the only feasible procedure, and, under the circumstances, “ The usual police station line-up . . . was out of the question.’ ” 388 U. S., at 302. MANSON v. BRATHWAITE 105 98 Opinion of the Court Neil v. Biggers, supra, decided in 1972, concerned a respondent who had been convicted in a Tennessee court of rape, on evidence consisting in part of the victim’s visual and voice identification of Biggers at a station-house showup seven months after the crime. The victim had been in her assailant’s presence for some time and had directly observed him indoors and under a full moon outdoors. She testified that she had “no doubt” that Biggers was her assailant. She previously had given the police a description of the assailant. She had made no identification of others presented at previous showups, lineups, or through photographs. On federal habeas, the District Court held that the confrontation was so suggestive as to violate due process. The Court of Appeals affirmed. This Court reversed on that issue, and held that the evidence properly had been allowed to go to the jury. The Court reviewed Stovall and certain later cases where it had considered the scope of due process protection against the admission of evidence derived from suggestive identification procedures, namely, Simmons v. United States, 390 U. S. 377 (1968); Foster v. California, 394 U. S. 440 (1969); and Coleman v. Alabama, 399 U. S. 1 (1970).8 The Court concluded that 8 Simmons involved photographs, mostly group ones, shown to bankteller victims who made in-court identifications. The Court discussed the “chance of misidentification,” 390 U. 8., at 383; declined to prohibit the procedure “either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement,” id., at 384; and held that each case must be considered on its facts and that a conviction would be set aside only if the identification procedure “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Ibid. The out-of-court identification was not offered. Mr. Justice Black would have denied Simmons’ due process claim as frivolous. Id., at 395-396. Foster concerned repeated confrontations between a suspect and the manager of an office that had been robbed. At a second lineup, but not at the first and not at a personal one-to-one confrontation, the manager identified the suspect. At trial he testified as to this and made an in-court identification. The Court reaffirmed the Stovall standard and then con- 106 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. general guidelines emerged from these cases “as to the relationship between suggestiveness and misidentification.” The “admission of evidence of a showup without more does not violate due process.” 409 U. S., at 198. The Court expressed concern about the lapse of seven months between the crime and the confrontation and observed that this “would be a seriously negative factor in most cases.” Id., at 201. The “central question,” however, was “whether under the Totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” Id., at 199. Applying that test, the Court found “no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury.” Id., at 201. Biggers well might be seen to provide an unambiguous answer to the question before us: The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability.9 In one passage, eluded that the repeated confrontations were so suggestive as to violate due process. The case was remanded for the state courts to consider the question of harmless error. In Coleman a plurality of the Court was of the view that the trial court did not err when it found that the victim’s in-court identifications did not stem from a lineup procedure so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. 399 U. S., at 5-6. 9 Mr. Justice Marshall argues in dissent that our cases have “established two different due process tests for two very different situations.” Post, at 122. Pretrial identifications are to be covered by Stovall, which is said to require exclusion of evidence concerning unnecessarily suggestive pretrial identifications without regard to reliability. In-court identifications, on the other hand, are to be governed by Simmons and admissibility turns on reliability. The Court’s cases are sorted into one category or the other. Biggers, which clearly adopts the reliability of the identification as the guiding factor in the admissibility of both pretrial and in-court identifications, is condemned for mixing the two lines and for adopting a uniform rule. Although it must be acknowledged that our cases are not uniform in their emphasis, they hardly suggest the formal structure the dissent MANSON v. BRATHWAITE 107 98 Opinion of the Court however, the Court observed that the challenged procedure occurred pre-Stovall and that a strict rule would make little sense with regard to a confrontation that preceded the Court’s first indication that a suggestive procedure might lead to the exclusion of evidence. Id., at 199. One perhaps might argue that, by implication, the Court suggested that a different rule could apply post-Stovall. The question before us, then, is simply whether the Biggers analysis applies to post-Stovall confrontations as well to those pre-Stovall. Ill In the present case the District Court observed that the “sole evidence tying Brathwaite to the possession and sale of the heroin consisted in his identifications by the police undercover agent, Jimmy Glover.” App. to Pet. for Cert. 6a. On the constitutional issue, the court stated that the first inquiry was whether the police used an impermissibly suggestive procedure in obtaining the out-of-court identification. If so, the second inquiry is whether, under all the circumstances, that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Id., at 9a. Biggers and Simmons were cited. The court noted that in the Second Circuit, its controlling court, it was clear that “this type of identification procedure [display of a single photograph] is impermissibly would impose on them. If our cases truly established two different rules, one might expect at some point at least passing reference to the fact. There is none. And if Biggers departed so grievously from the past cases, it is surprising that there was not at least some mention of the point in Mr. Justice Brennan’s dissent. In fact, the cases are not so readily sorted as the dissent suggests. Although Foster involved both in-court and out-of-court identifications, the Court seemed to apply only a single standard for both. And although Coleman involved only an in-court identification, the plurality cited Stovall for the guiding rule that the claim was to be assessed on the “totality of the surrounding circumstances.” 399 U. S., at 4. Thus, Biggers is not properly seen as a departure from the past cases, but as a synthesis of them. 108 OCTOBER TERM, 1976 Opinion of the Court 432U.S. suggestive/’ and turned to the second inquiry. App. to Pet. for Cert. 9a. The factors Biggers specified for consideration were recited and applied. The court concluded that there was no substantial likelihood of irreparable misidentification. It referred to the facts: Glover was within two feet of the seller. The duration of the confrontation was at least a “couple of minutes.” There was natural light from a window or skylight and there was adequate light to see clearly in the hall. Glover “certainly was paying attention to identify the seller.” Id., at 10a. He was a trained police officer who realized that later he would have to find and arrest the person with whom he was dealing. He gave a detailed description to D’Onofrio. The reliability of this description was supported by the fact that it enabled D’Onofrio to pick out a single photograph that was thereafter positively identified by Glover. Only two days elapsed between the crime and the photographic identification. Despite the fact that another eight months passed before the in-court identification, Glover had “no doubt” that Brathwaite was the person who had sold him heroin. The Court of Appeals confirmed that the exhibition of the single photograph to Glover was “impermissibly suggestive,” 527 F. 2d, at 366, and felt that, in addition, “it was unnecessarily so.” Id., at 367. There was no emergency and little urgency. The court said that prior to the decision in Biggers, except in cases of harmless error, “a conviction secured as the result of admitting an identification obtained by impermissibly suggestive and unnecessary measures could not stand.” Ibid. It noted what it felt might be opposing inferences to be drawn from passages in Biggers, but concluded that the case preserved the principle “requiring the exclusion of identifications resulting from ‘unnecessarily suggestive confrontation’ ” in post-^ovaZZ situations. 527 F. 2d, at 368. The court also concluded that for post-^owH identifications, Biggers had not changed the existing rule. Thus: “Evidence of an identification unnecessarily obtained by impermissibly MANSON v. BRATHWAITE 109 98 Opinion of the Court suggestive means must be excluded under Stovall .... No rules less stringent than these can force police administrators and prosecutors to adopt procedures that will give fair assurance against the awful risks of misidentification.” 527 F. 2d, at 371. Finally, the court said, even if this conclusion were wrong, the writ, nevertheless, should issue. It took judicial notice that on May 5, 1970, sunset at Hartford was at 7:53 p. m. It characterized Glover’s duty as an undercover agent as one “to cause arrests to be made,” and his description of the suspect as one that “could have applied to hundreds of Hartford black males.” Ibid. The in-court identification had “little meaning,” for Brathwaite was at the counsel table. The fact that respondent was arrested in the very apartment where the sale was made was subject to a “not implausible” explanation from the respondent, “although evidently not credited by the jury.” And the court was troubled by “the long and unexplained delay” in the arrest. It was too great a danger that the respondent was convicted because he was a man D’Onofrio had previously observed near the scene, was thought to be a likely offender, and was arrested when he was known to be in Mrs. Ramsey’s apartment, rather than because Glover “really remembered him as the seller.” Id., at 371-372. IV Petitioner at the outset acknowledges that “the procedure in the instant case was suggestive [because only one photograph was used] and unnecessary” [because there was no emergency or exigent circumstance]. Brief for Petitioner 10; Tr. of Oral Arg. 7. The respondent, in agreement with the Court of Appeals, proposes a per se rule of exclusion that he claims is dictated by the demands of the Fourteenth Amendment’s guarantee of due process. He rightly observes that this is the first case in which this Court has had occasion to rule upon strictly post-Stovall out-of-court identification evidence of the challenged kind. 110 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. Since the decision in Biggers, the Courts of Appeals appear to have developed at least two approaches to such evidence. See Pulaski, Neil n. Biggers: The Supreme Court Dismantles the Wade Trilogy’s Due Process Protection, 26 Stan. L. Rev. 1097, 1111-1114 (1974). The first, or per se approach, employed by the Second Circuit in the present case, focuses on the procedures employed and requires exclusion of the out-of-court identification evidence, without regard to reliability, whenever it has been obtained through unnecessarily suggested confrontation procedures.10 The justifications advanced are the elimination of evidence of uncertain reliability, deterrence of the police and prosecutors, and the stated “fair assurance against the awful risks of misidentification.” 527 F. 2d, at 371. See Smith v. Coiner, 473 F. 2d 877, 882 (CA4), cert, denied sub nom. Wallace v. Smith, 414 U. S. 1115 (1973). The second, or more lenient, approach is one that continues to rely on the totality of the circumstances. It permits the admission of the confrontation evidence if, despite the suggestive aspect, the out-of-court identification possesses certain features of reliability. Its adherents feel that the per se approach is not mandated by the Due Process Clause of the Fourteenth Amendment. This second approach, in contrast to the other, is ad hoc and serves to limit the societal costs imposed by a sanction that excludes relevant evidence from consideration and evaluation by the trier of fact. See United States ex rel. Kirby v. Sturges, 510 F. 2d 397, 407-408 (CA7) (opinion by Judge, now Mr. Justice, Stevens), cert, denied, 421 U. S. 1016 (1975); Stanley v. Cox, 486 F. 2d 48 10 Although the per se approach demands the exclusion of testimony concerning unnecessarily suggestive identifications, it does permit the admission of testimony concerning a subsequent identification, including an in-court identification, if the subsequent identification is determined to be reliable. 527 F. 2d, at 367. The totality approach, in contrast, is simpler: if the challenged identification is reliable, then testimony as to it and any identification in its wake is admissible. MANSON v. BRATHWAITE 111 98 Opinion of the Court (CA4 1973), cert, denied sub nom. Stanley v. Slayton, 416 U. S. 958 (1974).11 Mr. Justice Stevens, in writing for the Seventh Circuit in Kirby, supra, observed: “There is surprising unanimity among scholars in regarding such a rule [the per se approach] as essential to avoid serious risk of miscarriage of justice.” 510 F. 2d, at 405. He pointed out that well-known federal judges have taken the position that “evidence of, or derived from, a showup identification should be inadmissible unless the prosecutor can justify his failure to use a more reliable identification procedure.” Id., at 406. Indeed, the ALI Model Code of Pre-Arraignment Procedure §§ 160.1 and 160.2 (1975) (hereafter Model Code) frowns upon the use of a showup or the display of only a single photograph. The respondent here stresses the same theme and the need for deterrence of improper identification practice, a factor he regards as pre-eminent. Photographic identification, it is said, continues to be needlessly employed. He notes that the legislative regulation “the Court had hoped [United States v.] Wade[, 388 U. S. 218, 239 (1967),] would engender,” Brief for Respondent 15, has not been forthcoming. He argues that a totality rule cannot be expected to have a significant deterrent impact; only a strict rule of exclusion will have direct and immediate impact on law enforcement agents. Identification evidence is so convincing to the jury that sweeping exclusionary rules are required. Fairness of the trial is threatened by suggestive confrontation evidence, and thus, it is said, an exclusionary rule has an established constitutional predicate. There are, of course, several interests to be considered and taken into account. The driving force behind United States v. Wade, 388 U. S. 218 (1967), Gilbert v. California, 388 11 The Fourth Circuit’s then very recent decision in Smith v. Coiner, 473 F. 2d 877 (1973), was described as one .applying the second, or totality, test. 486 F. 2d, at 55. 112 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. U. S. 263 (1967) (right to counsel at a post-indictment lineup), and Stovall, all decided on the same day, was the Court’s concern with the problems of eyewitness identification. Usually the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional stress. The witness’ recollection of the stranger can be distorted easily by the circumstances or by later actions of the police. Thus, Wade and its companion cases reflect the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability. It must be observed that both approaches before us are responsive to this concern. The per se rule, however, goes too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant. The second factor is deterrence. Although the per se approach has the more significant deterrent effect, the totality approach also has an influence on police behavior. The police will guard against unnecessarily suggestive procedures under the totality rule, as well as the per se one, for fear that their actions will lead to the exclusion of identifications as unreliable.12 The third factor is the effect on the administration of justice. Here the per se approach suffers serious drawbacks. Since it denies the trier reliable evidence, it may result, on occasion, in the guilty going free. Also, because of its rigidity, the per se approach may make error by the trial judge more likely than the totality approach. And in those cases in which the admission of identification evidence is error under the per se approach but not under the totality approach— 12 The interest in obtaining convictions of the guilty also urges the police to adopt procedures that show the resulting identification to be accurate. Suggestive procedures often will vitiate the weight of the evidence at trial and the jury may tend to discount such evidence. Cf. McGowan, Constitutional Interpretation and Criminal Identification, 12 Wm. & Mary L. Rev. 235, 241 (1970). MANSON v. BRATHWAITE 113 98 Opinion of the Court cases in which the identification is reliable despite an unnecessarily suggestive identification procedure—reversal is a Draconian sanction.13 Certainly, inflexible rules of exclusion that may frustrate rather than promote justice have not been viewed recently by this Court with unlimited enthusiasm. See, for example, the several opinions in Brewer v. Williams, 430 U. S. 387 (1977). See also United States v. Janis, 428 U. S. 433 (1976). It is true, as has been noted, that the Court in Biggers referred to the pre-Stovall character of the confrontation in that case. 409 U. S., at 199. But that observation was only one factor in the judgmental process. It does not translate into a holding that ipost-Stovall confrontation evidence automatically is to be excluded. The standard, after all, is that of fairness as required by the Due Process Clause of the Fourteenth Amendment. See United States v. Lovasco, 431 U. S. 783, 790 (1977); Rochin v. California, 342 U. S. 165, 170-172 (1952). Stovall, with its reference to “the totality of the circumstances,” 388 U. S., at 302, and Biggers, with its continuing stress on the same totality, 409 U. S., at 199, did not, singly or together, establish a strict exclusionary rule or new standard of due process. Judge Leventhal, although speaking pre-Biggers and of a pre-Wade situation, correctly has described Stovall as protecting an evidentiary interest and, at the same time, as recognizing the limited extent of that interest in our adversary system.14 13 Unlike a warrantless search, a suggestive preindictment identification procedure does not in itself intrude upon a constitutionally protected interest. Thus, considerations urging the exclusion of evidence deriving from a constitutional violation do not bear on the instant problem. See United States ex rel. Kirby v. Sturges, 510 F. 2d 397, 406 (CA7 1975). 14 “In ^essence what the Stovall due process right protects is an evidentiary interest. . . . “It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness—an obvious example 114 OCTOBER TERM, 1976 Opinion of the Court 432U.S. We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and postrStovall confrontations. The factors to be considered are set out in Biggers. 409 U. S., at 199-200. These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. V We turn, then, to the facts of this case and apply the analysis: 1. The opportunity to view. Glover testified that for two to three minutes he stood at the apartment door, within two feet of the respondent. The door opened twice, and each time the man stood at the door. The moments passed, the conversation took place, and payment was made. Glover looked directly at his vendor. It was near sunset, to be sure, but the sun had not yet set, so it was not dark or even dusk or twilight. Natural light from outside entered the hallway through a window. There was natural light, as well, from inside the apartment. being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart— the 'integrity’—of the adversary process. “Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification—including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.” Clemons v. United States, 133 U. S. App. D. C. 27, 48, 408 F. 2d 1230, 1251 (1968) (concurring opinion) (footnote omitted), cert, denied, 394 U. S. 964 (1969). MANSON v. BRATHWAITE 115 98 Opinion of the Court 2. The degree of attention. Glover was not a casual or passing observer, as is so often the case with eyewitness identification. Trooper Glover was a trained police officer on duty—and specialized and dangerous duty—when he called at the third floor of 201 Westland in Hartford on May 5, 1970. Glover himself was a Negro and unlikely to perceive only general features of “hundreds of Hartford black males,” as the Court of Appeals stated. 527 F. 2d, at 371. It is true that Glover’s duty was that of ferreting out narcotics offenders and that he would be expected in his work to produce results. But it is also true that, as a specially trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail, for he knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial. 3. The accuracy of the description. Glover’s description was given to D’Onofrio within minutes after the transaction. It included the vendor’s race, his height, his build, the color and style of his hair, and the high cheekbone facial feature. It also included clothing the vendor wore. No claim has been made that respondent did not possess the physical characteristics so described. D’Onofrio reacted positively at once. Two days later, when Glover was alone, he viewed the photograph D’Onofrio produced and identified its subject as the narcotics seller. 4. The witness’ level of certainty. There is no dispute that the photograph in question was that of respondent. Glover, in response to a question whether the photograph was that of the person from whom he made the purchase, testified: “There is no question whatsoever.” Tr. 38. This positive assurance was repeated. Id., at 41-42. 5. The time between the crime and the confrontation. Glover’s description of his vendor was given to D’Onofrio 116 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. within minutes of the crime. The photographic identification took place only two days later. We do not have here the passage of weeks or months between the crime and the viewing of the photograph. These indicators of Glover’s ability to make an accurate identification are hardly outweighed by the corrupting effect of the challenged identification itself. Although identifications arising from single-photograph displays may be viewed in general with suspicion, see Simmons v. United States, 390 U. 8., at 383, we find in the instant case little pressure on the witness to acquiesce in the suggestion that such a display entails. D’Onofrio had left the photograph at Glover’s office and was not present when Glover first viewed it two days after the event. There thus was little urgency and Glover could view the photograph at his leisure. And since Glover examined the photograph alone, there was no coercive pressure to make an identification arising from the presence of another. The identification was made in circumstances allowing care and reflection. Although it plays no part in our analysis, all this assurance as to the reliability of the identification is hardly undermined by the facts that respondent was arrested in the very apartment where the sale had taken place, and that he acknowledged his frequent visits to that apartment.15 Surely, we cannot say that under all the circumstances of this case there is “a very substantial likelihood of irreparable misidentification.” Id., at 384. Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature. 15 Mrs. Ramsey was not a witness at the trial. MANSON v. BRATHWAITE 117 98 Stevens, J., concurring Of course, it would have been better had D’Onofrio presented Glover with a photographic array including “so far as practicable ... a reasonable number of persons similar to any person then suspected whose likeness is included in the array.” Model Code § 160.2 (2). The use of that procedure would have enhanced the force of the identification at trial and would have avoided the risk that the evidence would be excluded as unreliable. But we are not disposed to view D’Onofrio’s failure as one of constitutional dimension to be enforced by a rigorous and unbending exclusionary rule. The defect, if there be one, goes to weight and not to substance.16 We conclude that the criteria laid down in Biggers are to be applied in determining the admissibility of evidence offered by the prosecution concerning a post-^ovaZZ identification, and that those criteria are satisfactorily met and complied with here. The judgment of the Court of Appeals is reversed. It is so ordered. Mr. Justice Stevens, concurring. While I join the Court’s opinion, I would emphasize two points. First, as I indicated in my opinion in United States ex rel. Kirby v. Sturges, 510 F. 2d 397, 405-406 (CA7 1975), the arguments in favor of fashioning new rules to minimize the danger of convicting the innocent on the basis of unreliable eyewitness testimony carry substantial force. Nevertheless, 16 We are not troubled, as was the Court of Appeals, by the “long and unexplained delay” in respondent’s arrest. 527 F. 2d, at 372. That arrest took place on July 27. The toxicological report verifying the substance sold as heroin had issued only 11 days earlier, on July 16. Those 11 days after verification of the contents of the glassine bags do not constitute, for us, a “long” period. And with the positive toxicological report having been received within a fortnight, the arrest’s delay perhaps is not “unexplained.” 118 OCTOBER TERM, 1976 Marshall, J., dissenting 432 U. S. for the reasons stated in that opinion, as well as those stated by the Court today, I am persuaded that this rulemaking function can be performed “more effectively by the legislative process than by a somewhat clumsy judicial fiat,” id., at 408, and that the Federal Constitution does not foreclose experimentation by the States in the development of such rules. Second, in evaluating the admissibility of particular identification testimony it is sometimes difficult to put other evidence of guilt entirely to one side.* Mr. Justice Blackmun’s opinion for the Court carefully avoids this pitfall and correctly relies only on appropriate indicia of the reliability of the identification itself. Although I consider the factual question in this case extremely close, I am persuaded that the Court has resolved it properly. Mr. Justice Marshall, with whom Mr. Justice Brennan joins, dissenting. Today’s decision can come as no surprise to those who have been watching the Court dismantle the protections against mistaken eyewitness testimony erected a decade ago in United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); and Stovall v. Denno, 388 U. S. 293 (1967). But it is still distressing to see the Court virtually ignore the teaching of experience embodied in those decisions and blindly uphold the conviction of a defendant who may well be innocent. *In this case, for example, the fact that the defendant was a regular visitor to the apartment where the drug transaction occurred tends to confirm his guilt. In the Kirby case, where the conviction was for robbery, the fact that papers from the victim’s wallet were found in the possession of the defendant made it difficult to question the reliability of the identification. These facts should not, however, be considered to support the admissibility of eyewitness testimony when applying the criteria identified in Neil v. Biggers, 409 U. S. 188. Properly analyzed, however, such facts would be relevant to a question whether error, if any, in admitting identification testimony was harmless. MANSON v. BRATHWAITE 119 98 Marshall, J., dissenting I The magnitude of the Court’s error can be seen by analyzing the cases in the Wade trilogy and the decisions following it. The foundation of the Wade trilogy was the Court’s recognition of the “high incidence of miscarriage of justice” resulting from the admission of mistaken eyewitness identification evidence at criminal trials. United States v. Wade, supra, at 228. Relying on numerous studies made over many years by such scholars as Professor Wigmore and Mr. Justice Frankfurter, the Court concluded that “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” Ibid. It is, of course, impossible to control one source of such errors—the faulty perceptions and unreliable memories of witnesses—except through vigorously contested trials conducted by diligent counsel and judges. The Court in the Wade cases acted, however, to minimize the more preventable threat posed to accurate identification by “the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” Ibid. The Court did so in Wade and Gilbert v. California by prohibiting the admission at trial of evidence of pretrial confrontations at which an accused was not represented by counsel. Further protection was afforded by holding that an in-court identification following an uncounseled lineup was allowable only if the prosecution could clearly and convincingly demonstrate that it was not tainted by the constitutional violation. Only in this way, the Court held, could confrontations fraught with the danger of misidentification be made fairer, and could Sixth Amendment rights to assistance of counsel and confrontation of witnesses at trial be effectively preserved. The crux of the Wade decisions, however, was the unusual threat to the truth-seeking process posed by the frequent untrustworthiness of eyewitness identification 120 OCTOBER TERM, 1976 Marshall, J., dissenting 432 U. S. testimony. This, combined with the fact that juries unfortunately are often unduly receptive to such evidence,1 is the fundamental fact of judicial experience ignored by the Court today. Stovall v. Denno, while holding that the Wade prophylactic rules were not retroactive, was decided at the same time and reflects the same concerns about the reliability of identification testimony. Stovall recognized that, regardless of Sixth Amendment principles, “the conduct of a confrontation” may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny due process of law. 388 U. S., at 301-302. The pretrial confrontation in Stovall was plainly suggestive,2 and evidence of it was introduced at trial along with the witness’ in-court identification. The Court ruled that there had been no violation of due process, however, because the unusual necessity for the procedure 3 outweighed the danger of suggestion. Stovall thus established a due proceess right of criminal suspects to be free from confrontations that, under all the circumstances, are unnecessarily suggestive. The right was enforceable by exclusion at trial of evidence of the constitutionally invalid identification. Comparison with Wade and Gilbert confirms this interpretation. Where their Sixth 1 See, e. g., P. Wall, Eye-Witness Identification in Criminal Cases 19-23 (1965); N. Sobel, Eye-Witness Identification: Legal and Practical Problems, §§3.01, 3.02, 30 (1972); Hammelmann & Williams, Identification Parades—II, Crim. L. Rev. 545, 550 (1963). 2 The accused, a Negro, was brought handcuffed by seven white police officers and employees of the District Attorney to the hospital room of the only witness to a murder. As the Court said of this encounter: “It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed to be guilty by the police. See Frankfurter, The Case of Saeco and Vanzetti 31-32.” United States v. Wade, 388 U. S. 218, 234 (1967). 3 The police reasonably feared that the witness might die before any less suggestive confrontation could be arranged. MANSON v. BRATHWAITE 121 98 Marshall, J., dissenting Amendment holding did not apply, Stovall found an analogous Fourteenth Amendment right to a lineup conducted in a fundamentally fair manner. This interpretation is reinforced by the Court’s statement that “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.” 388 U. S., at 302 (emphasis added). Significantly, several years later, Stovall was viewed in precisely the same way, even as the Court limited Wade and Gilbert to post-indictment confrontations: “The Due Process Clause . . . forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U. S. 293; Foster v. California, 394 U. S. 440.” Kirby v. Illinois, 406 U. S. 682, 691 (1972) (emphasis added).4 The development of due process protections against mistaken identification evidence, begun in Stovall, was continued in Simmons v. United States, 390 U. S. 377 (1968). There, the Court developed a different rule to deal with the admission of in-court identification testimony that the accused claimed had been fatally tainted by a previous suggestive confrontation. In Simmons, the exclusionary effect of Stovall had already been accomplished, since the prosecution made no use of the suggestive confrontation. Simmons, therefore, did not deal with the constitutionality of the pretrial identification procedure. The only question was the impact of the 4 See also, McGowan, Constitutional Interpretation and Criminal Identification, 12 Wm. & Mary L. Rev. 235, 240 (1970). If the test enunciated in Stovall permitted any consideration of the witness’ opportunity to observe the offender at the time of the crime, it was only in the narrowly circumscribed context of ascertaining the extent to which the challenged procedure was “conducive to irreparable mistaken identification.” It is noteworthy, however, that in applying its test in Stovall, the Court did not advert to the significant circumstantial evidence of guilt, see United States ex rel. Stovall n. Denno, 355 F. 2d 731, 733-734 (CA2 1966), nor discuss any factors bearing on the witness’ opportunity to view the assailant. 122 OCTOBER TERM, 1976 Marshall, J., dissenting 432 U. S. Due Process Clause on an in-court identification that was not itself unnecessarily suggestive. Simmons held that due process was violated by the later identification if the pretrial procedure had been “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 390 U. 8., at 384. This test focused, not on the necessity for the challenged pretrial procedure, but on the degree of suggestiveness that it entailed. In applying this test, the Court understandably considered the circumstances surrounding the witnesses’ initial opportunity to view the crime. Finding that any suggestion in the pretrial confrontation had not affected the fairness of the in-court identification, Simmons rejected petitioner’s due process attack on his conviction. Again, comparison with the Wade cases is instructive. The inquiry mandated by Simmons is similar to the independentsource test used in Wade where an in-court identification is sought following an uncounseled lineup. In both cases, the issue is whether the witness is identifying the defendant solely on the basis of his memory of events at the time of the crime, or whether he is merely remembering the person he picked out in a pretrial procedure. Accordingly, in both situations, the relevant inquiry includes factors bearing on the accuracy of the witness’ identification, including his opportunity to view the crime. Thus, Stovall and Simmons established two different due process tests for two very different situations. Where the prosecution sought to use evidence of a questionable pretrial identification, Stovall required its exclusion, because due process had been violated by the confrontation, unless the necessity for the unduly suggestive procedure outweighed its potential for generating an irreparably mistaken identification. The Simmons test, on the other hand, was directed to ascertaining due process violations in the introduction of incourt identification testimony that the defendant claimed was tainted by pretrial procedures. In the latter situation, a MANSON v. BRATHWAITE 123 98 Marshall, J., dissenting court could consider the reliability of the identification under all the circumstances.5 This distinction between Stovall and Simmons was preserved in two succeeding cases. Foster v. California, 394 U. S. 440 (1969), like Stovall, involved both unduly suggestive pretrial procedures, evidence of which was introduced at trial, and a tainted in-court identification. Accordingly, Foster applied the Stovall test, 394 U. S., at 442, and held that the police “procedure so undermined the reliability of the eyewitness identification as to violate due process.” Id., at 443 (emphasis added). In contrast, in Coleman v. Alabama, 399 U. S. 1 (1970), where the witness’ pretrial identification was not used to bolster his in-court identification, the plurality opinion applied the test enunciated in Simmons. It concluded that an in-court identification did not violate due process because it did not stem from an allegedly suggestive lineup. The Court inexplicably seemed to erase the distinction between Stovall and Simmons situations in Neil v. Biggers, 409 U. S. 188 (1972). In Biggers there was a pretrial confrontation that was clearly both suggestive and unnecessary.6 Evidence of this, together with an in-court identification, was admitted at trial. Biggers was, in short, a case plainly cast in the Stovall mold. Yet the Court, without explanation or apparent recognition of the distinction, applied the Simmons 5 Mr. Justice Harlan, writing for the Court in Simmons, acknowledged that there was a distinction between that case and Stovall. After describing the factual setting and the applicable due process test, he noted that “ft]his standard accords with our resolution of a similar issue in Stovall.” 390 U. S., at 384. He pointedly did not say that the cases were the same, nor did he rely on Stovall to set the standard. 6 “The showup itself consisted of two detectives walking respondent past the victim.” 409 U. S., at 195. The police also ordered respondent to repeat the words used by the criminal. Inadequate efforts were made to secure participants for a lineup, and there was no pressing need to use a showup. 124 OCTOBER TERM, 1976 Marshall, J., dissenting 432 U. S. test. The Court stated: “[T]he primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, 390 U. S., at 384. ... It is the likelihood of misidentification which violates a defendant’s right to due process . . . .” 409 U. S., at 198. While this statement accurately describes the lesson of Simmons, it plainly ignores the teaching of Stovall and Foster that an unnecessarily suggestive pretrial confrontation itself violates due process. But the Court did not simply disregard the due process analysis of Stovall. It went on to take the Simmons standard for assessing the constitutionality of an in-court identification— “ ‘a very substantial likelihood of irreparable misidentification’ ”—and transform it into the “standard for the admissibility of testimony concerning [an] out-of-court identification.” 409 U. S., at 198. It did so by deleting the word “irreparable” from the Simmons formulation. This metamorphosis could be accomplished, however, only by ignoring the fact that Stovall, fortified only months earlier by Kirby n. Illinois, see supra, at 121, had established a test for precisely the same situation that focused on the need for the suggestive procedure. It is not surprising that commentators almost unanimously mourned the demise of Stovall in the Biggers decision.7 II Apparently, the Court does not consider Biggers controlling in this case. I entirely agree, since I believe that Biggers 7 See, e. g., N. Sobel, supra, n. 1, §§ 37, 38 (Supp. 1977); Grano, Kirby, Biggers, and Ash: Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent? 72 Mich. L. Rev. 717 (1974); M. Hartman & N. Goldberg, The Death of the Warren Court, The Doctrine of Suggestive Identification, 32 NLADA Briefcase 78 (1974); Pulaski, Neil v. Biggers: The Supreme Court Dismantles the Wade Trilogy’s Due Process Protection, 26 Stan. L. Rev. 1097 (1974); Recent Developments, Identification: Unnecessary Suggestiveness May Not Violate Due Process, 73 Colum. L. Rev. 1168 (1973). MANSON v. BRATHWAITE 125 98 Marshall, J., dissenting was wrongly decided. The Court, however, concludes that Biggers is distinguishable because it, like the identification decisions that preceded it, involved a pre-$£ovaK confrontation, and because a paragraph in Biggers itself, 409 U. S., at 198-199, seems to distinguish between pre- and post-Stow^ confrontations. Accordingly, in determining the admissibility of the post-Stovall identification in this case, the Court considers two alternatives, a per se exclusionary rule and a totality-of-the-circumstances approach. Ante, at 110-111. The Court weighs three factors in deciding that the totality approach, which is essentially the test used in Biggers, should be applied. Ante, at 111-113. In my view, the Court wrongly evaluates the impact of these factors. First, the Court acknowledges that one of the factors, deterrence of police use of unnecessarily suggestive identification procedures, favors the per se rule. Indeed, it does so heavily, for such a rule would make it unquestionably clear to the police they must never use a suggestive procedure when a fairer alternative is available. I have no doubt that conduct would quickly conform to the rule. Second, the Court gives passing consideration to the dangers of eyewitness identification recognized in the IFade trilogy. It concludes, however, that the grave risk of error does not justify adoption of the per se approach because that would too often result in exclusion of relevant evidence. In my view, this conclusion totally ignores the lessons of Wade. The dangers of mistaken identification are, as Stovall held, simply too great to permit unnecessarily suggestive identifications. Neither Biggers nor the Court’s opinion today points to any contrary empirical evidence. Studies since Wade have only reinforced the validity of its assessment of the dangers of identification testimony.8 While the Court is “content to 8 See, e. g., People v. Anderson, 389 Mich. 155, 172-180, 192-220, 205 N. W. 2d 461, 468-472, 479-494, 485 (1973); Levine & Tapp, The Psychology of Criminal Identification: The Gap From Wade to Kirby, 121 126 OCTOBER TERM, 1976 Marshall, J., dissenting 432U.S. rely on the good sense and judgment of American juries,” ante, at 116, the impetus for Stovall and Wade was repeated miscarriages of justice resulting from juries’ willingness to credit inaccurate eyewitness testimony. Finally, the Court errs in its assessment of the relative impact of the two approaches on the administration of justice. The Court relies most heavily on this factor, finding that “reversal is a Draconian sanction” in cases where the identification is reliable despite an unnecessarily suggestive procedure used to obtain it. Relying on little more than a strong distaste for “inflexible rules of exclusion,” the Court rejects the per se test. Ante, at 113. In so doing, the Court disregards two significant distinctions between the per se rule advocated in this case and the exclusionary remedies for certain other constitutional violations. First, the per se rule here is not “inflexible.” Where evidence is suppressed, for example, as the fruit of an unlawful search, it may well be forever lost to the prosecution. Identification evidence, however, can by its very nature be readily and effectively reproduced. The in-court identification, permitted under Wade and Simmons if it has a source independent of an uncounseled or suggestive procedure, is one example. Similarly, when a prosecuting attorney learns that there has been a suggestive confrontation, he can easily arrange another U. Pa. L. Rev. 1079 (1973); O’Connor, “That’s the Man”: A Sobering Study of Eyewitness Identification and the Polygraph, 49 St. John’s L. Rev. 1 (1974); McGowan, supra, n. 4, at 238-239; Grano, supra, n. 7, at 723-724, 768-770; Recent Developments, supra, n. 7, at 1169 n. 11. Moreover, as the exhaustive opinion of the Michigan Supreme Court in People v. Anderson, supra, noted: “For a number of obvious reasons, however, including the fact that there is no on-going systematic study of the problem, the reported cases of misidentification are in every likelihood only the top of the iceberg. The writer of this opinion, for example, was able to turn up three very recent unreported cases right here in Michigan in the course of a few hours’ inquiry.” 389 Mich., at 179-180, 205 N. W. 2d, at 472. MANSON v. BRATHWAITE 127 98 Marshall, J., dissenting lineup conducted under scrupulously fair conditions. Since the same factors are evaluated in applying both the Court’s totality test and the Wade-Simmons independent-source inquiry, any identification which is “reliable” under the Court’s test will support admission of evidence concerning such a fairly conducted lineup. The evidence of an additional, properly conducted confrontation will be more persuasive to a jury, thereby increasing the chance of a justified conviction where a reliable identification was tainted by a suggestive confrontation. At the same time, however, the effect of an unnecessarily suggestive identification—which has no value whatsoever in the law enforcement process—will be completely eliminated. Second, other exclusionary rules have been criticized for preventing jury consideration of relevant and usually reliable evidence in order to serve interests unrelated to guilt or innocence, such as discouraging illegal searches or denial of counsel. Suggestively obtained eyewitness testimony is excluded, in contrast, precisely because of its unreliability and concomitant irrelevance. Its exclusion both protects the integrity of the truth-seeking function of the trial and discourages police use of needlessly inaccurate and ineffective investigatory methods. Indeed, impermissibly suggestive identifications are not merely worthless law enforcement tools. They pose a grave threat to society at large in a more direct way than most governmental disobedience of the law, see Olmstead v. United States, 277 U. S. 438, 471, 485 (1928) (Brandeis, J., dissenting). For if the police and the public erroneously conclude, on the basis of an unnecessarily suggestive confrontation, that the right man has been caught and convicted, the real outlaw must still remain at large. Law enforcement has failed in its primary function and has left society unprotected from the depredations of an active criminal. 128 OCTOBER TERM, 1976 Marshall, J., dissenting 432U.S. For these reasons, I conclude that adoption of the per se rule would enhance, rather than detract from, the effective administration of justice. In my view, the Court’s totality test will allow seriously unreliable and misleading evidence to be put before juries. Equally important, it will allow dangerous criminals to remain on the streets while citizens assume that police action has given them protection. According to my calculus, all three of the factors upon which the Court relies point to acceptance of the per se approach. Even more disturbing than the Court’s reliance on the totality test, however, is the analysis it uses, which suggests a reinterpretation of the concept of due process of law in criminal cases. The decision suggests that due process violations in identification procedures may not be measured by whether the government employed procedures violating standards of fundamental fairness. By relying on the probable accuracy of a challenged identification, instead of the necessity for its use, the Court seems to be ascertaining whether the defendant was probably guilty. Until today, I had thought that “Equal justice under law” meant that the existence of constitutional violations did not depend on the race, sex, religion, nationality, or likely guilt of the accused. The Due Process Clause requires adherence to the same high standard of fundamental fairness in dealing with every criminal defendant, whatever his personal characteristics and irrespective of the strength of the State’s case against him. Strong evidence that the defendant is guilty should be relevant only to the determination whether an error of constitutional magnitude was nevertheless harmless beyond a reasonable doubt. See Chapman v. California, 386 U. S. 18 (1967). By importing the question of guilt into the initial determination of whether there was a constitutional violation, the apparent effect of the Court’s decision is to undermine the protection afforded by the Due Process Clause. “It is therefore important to note that the state courts remain free, in interpreting state constitutions, to MANSON v. BRATHWAITE 129 98 Marshall, J., dissenting guard against the evil clearly identified by this case.” Oregon v. Mathiason, 429 U. S. 492, 499 (1977) (Marshall, J., dissenting) ,9 III Despite my strong disagreement with the Court over the proper standards to be applied in this case, I am pleased that its application of the totality test does recognize the continuing vitality of Stovall. In assessing the reliability of the identification, the Court mandates weighing “the corrupting effect of the suggestive identification itself” against the “indicators of [a witness’] ability to make an accurate identification.” Ante, at 114, 116. The Court holds, as Neil v. Biggers failed to, that a due process identification inquiry must take account of the suggestiveness of a confrontation and the likelihood that it led to misidentification, as recognized in Stovall and Wade. Thus, even if a witness did have an otherwise adequate opportunity to view a criminal, the later use of a highly suggestive identification procedure can render his testimony inadmissible. Indeed, it is my view that, assuming applicability of the totality test enunciated by the Court, the facts of the present case require that result. I consider first the opportunity that Officer Glover had to view the suspect. Careful review of the record shows that he could see the heroin seller only for the time it took to speak three sentences of four or five short words, to hand over some money, Tr. 29-30, and later after the door reopened, to receive the drugs in return, id., at 30, 31-32. The entire face-to-face transaction could have taken as little as 15 or 20 seconds. But during this time, Glover’s attention was not focused exclusively on the seller’s face. He observed that the door 9 See also 429 U. S., at 499 n. 6; United States v. Washington, 431 U. S. 181, 193-194 (1977) (Brennan, J., dissenting); Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). Cf. People v. Anderson, supra; Commonwealth v. Botelho, — Mass. —, 343 N. E. 2d 876 (1976). 130 OCTOBER TERM, 1976 Marshall, J., dissenting 432U.S. was opened 12 to 18 inches, id., at 29, that there was a window in the room behind the door, id., at 33, and, most importantly, that there was a woman standing behind the man, id., at 29, 30. Glover was, of course, also concentrating on the details of the transaction—he must have looked away from the seller’s face to hand him the money and receive the drugs. The observation during the conversation thus may have been as brief as 5 or 10 seconds. As the Court notes, Glover was a police officer trained in and attentive to the need for making accurate identifications. Nevertheless, both common sense and scholarly study indicate that while a trained observer such as a police officer “is somewhat less likely to make an erroneous identification than the average untrained observer, the mere fact that he has been so trained is no guarantee that he is correct in a specific case. His identification testimony should be scrutinized just as carefully as that of the normal witness.” Wall, supra, n. 1, at 14; see also Levine & Tapp, supra, n. 8, at 1088. Moreover, “identifications made by policemen in highly competitive activities, such as undercover narcotic agents . . . , should be scrutinized with special care.” Wall, supra, n. 1, at 14. Yet it is just such a searching inquiry that the Court fails to make here. Another factor on which the Court relies—the witness’ degree of certainty in making the identification—is worthless as an indicator that he is correct.10 Even if Glover had been unsure initially about his identification of respondent’s picture, by the time he was called at trial to present a key piece of evidence for the State that paid his salary, it is impossible to imagine his responding negatively to such questions as “is there any doubt in your mind whatsoever” that the identification was correct. Tr. 34, 41-42. As the Court noted in Wade: “ Tt is a matter of common experience that, once a 10 See, e. g., Wall, supra, n. 1, at 15-16; People n. Anderson, 389 Mich., at 217-220, 205 N. W. 2d, at 493-494; O’Connor, supra, n. 8, at 4-6. MANSON v. BRATHWAITE 131 98 Marshall, J., dissenting witness has picked out the accused at the [pretrial confrontar tion], he is not likely to go back on his word later on.’ ” 388 U. S., at 229, quoting Williams & Hammelmann, Identification Parades—I, Crim. L. Rev. 479, 482 (1963). Next, the Court finds that because the identification procedure took place two days after the crime, its reliability is enhanced. While such temporal proximity makes the identification more reliable than one occurring months later, the fact is that the greatest memory loss occurs within hours after an event. After that, the dropoff continues much more slowly.11 Thus, the reliability of an identification is increased only if it was made within several hours of the crime. If the time gap is any greater, reliability necessarily decreases. Finally, the Court makes much of the fact that Glover gave a description of the seller to D’Onofrio shortly after the incident. Despite the Court’s assertion that because “Glover himself was a Negro and unlikely to perceive only general features of ‘hundreds of Hartford black males,’ as the Court of Appeals stated,” ante, at 115, the description given by Glover was actually no more than a general summary of the seller’s appearance. See ante, at 101. We may discount entirely the seller’s clothing, for that was of no significance later in the proceeding. Indeed, to the extent that Glover noticed clothes, his attention was diverted from the seller’s face. Otherwise, Glover merely described vaguely the seller’s height, skin color, hairstyle, and build. He did say that the 11 See, e .g., Levine & Tapp, supra, n. 8, at 1100-1101; Note, Pretrial Identification Procedures—Wade to Gilbert to Stovall: Lower Courts Bobble the Ball, 55 Minn. L. Rev. 779, 789 (1971); People v. Anderson, supra, at 214r-215, 205 N. W. 2d, at 491. Reviewing a number of its cases, the Court of Appeals for the District of Columbia Circuit concluded several years ago that while showups occurring up to perhaps 30 minutes after a crime are generally permissible, one taking place four hours later, far removed from the crime scene, was not. McRae n. United States, 137 U. S. App. D. C. 80, 87, 420 F. 2d 1283, 1290 (1969). 132 OCTOBER TERM, 1976 Marshall, J., dissenting 432U.S. seller had “high cheekbones,” but there is no other mention of facial features, nor even an estimate of age. Conspicuously absent is any indication that the seller was a native of the West Indies, certainly something which a member of the black community could immediately recognize from both appearance and accent.12 From all of this, I must conclude that the evidence of Glover’s ability to make an accurate identification is far weaker than the Court finds it. In contrast, the procedure used to identify respondent was both extraordinarily suggestive and strongly conducive to error. In dismissing “the corrupting effect of the suggestive identification” procedure here, ante, at 116, the Court virtually grants the police license to convict the innocent. By displaying a single photograph of respondent to the witness Glover under the circumstances in this record almost everything that could have been done wrong was done wrong. In the first place, there was no need to use a photograph at all. Because photos are static, two-dimensional, and often outdated, they are “clearly inferior in reliability” to corporeal procedures. Wall, supra, n. 1, at 70; People v. Gould, 54 Cal. 2d 621, 631, 354 P. 2d 865, 870 (1960). While the use of photographs is justifiable and often essential where the police have no knowledge of an offender’s identity, the poor reliability of photos makes their use inexcusable where any other means of identification is available. Here, since Detective D’Onofrio believed that he knew the seller’s identity, see ante, at 101, 115, further investigation without resort to a photographic showup was easily possible. With little inconvenience, a corporeal 12 Brathwaite had come to the United States from his native Barbados as an adult. Tr. 99. It is also noteworthy that the informant who witnessed the transaction and was described by Glover as “trustworthy,” id., at 47, disagreed with Glover’s recollection of the event. The informant testified that it was a woman in the apartment who took the money from Glover and gave him the drugs in return. Id., at 86-87. MANSON v. BRATHWAITE 133 98 Marshall, J., dissenting lineup including Brathwaite might have been arranged.13 Properly conducted, such a procedure would have gone far to remove any doubt about the fairness and accuracy of the identification.14 Worse still than the failure to use an easily available corporeal identification was the display to Glover of only a single picture, rather than a photo array. With good reason, such single-suspect procedures have “been widely condemned.” Stovall v. Denno, 388 U. S., at 302. They give no assurance that the witness can identify the criminal from among a number of persons of similar appearance, surely the strongest evidence that there was no misidentification. In Simmons v. United States, our first decision involving photographic identification, we recognized the danger that a witness seeing a suggestively displayed picture will “retain in his memory the image of the photograph rather than of the person actually seen.” 390 U. S., at 383-384. “Subsequent identification of the accused then shows nothing except that the picture was a good likeness.” Williams & Hammelmann, supra, n. 1, at 484. As Simmons warned, the danger of error is at its greatest when “the police display to the witness only the picture of a single individual . . . [and] is also heightened if the police indicate to the witness that they have other evidence that . . . the perso [n] pictured committed the crime.” 390 U. S., at 383. 13 Indeed, the police carefully staged Brathwaite’s arrest in the same apartment that was used for the sale, see ante, at 101, 116, indicating that they were fully capable of keeping track of his whereabouts and using this information in their investigation. 14 It should be noted that this was not a case where the witness knew the person whom he saw committing a crime, or had an unusually long time to observe the criminal, so that the identification procedure was merely used to confirm the suspect’s identity. Cf. United States v. Wade, 388 U. S. 218, 250, 251 (1967) (White, J., dissenting). For example, had this been an ongoing narcotics investigation in which Glover had met the seller a number of times, the procedure would have been less objectionable. 134 OCTOBER TERM, 1976 Marshall, J., dissenting 432 U. S. See also ALI, Model Code of Pre-Arraignment Procedure §§ 160.2 (2), (5) (1975). The use of a single picture (or the display of a single live suspect, for that matter) is a grave error, of course, because it dramatically suggests to the witness that the person shown must be the culprit. Why else would the police choose the person? And it is deeply ingrained in human nature to agree with the expressed opinions of others—particularly others who should be more knowledgeable—when making a difficult decision.15 In this case, moreover, the pressure was not limited to that inherent in the display of a single photograph. Glover, the identifying witness, was a state police officer on special assignment. He knew that D’Onofrio, an experienced Hartford narcotics detective, presumably familiar with local drug operations, believed respondent to be the seller. There was at work, then, both loyalty to another police officer and deference to a better-informed colleague.16 Finally, of course, there was Glover’s knowledge that without an identifi 15 See, e. g., United States v. Wade, supra, at 228-229; People v. Anderson, 389 Mich., at 173-177, 215-217, 205 N. W. 2d, at 468-471, 491-493; Wall, supra, n. 1, at 26-40; O’Connor, supra, n. 8, at 9-10; Levine & Tapp, supra, n. 8. 16 In fact, the trial record indicates that D’Onofrio was remarkably ill-informed, although it does not appear that Glover knew this at the time of the identification. While the Court is impressed by D’Onofrio’s immediate response to Glover’s description, ante, at 108, 115, that cannot alter the fact that the detective, who had not witnessed the transaction, acted on a wild guess that respondent was the seller. D’Onofrio’s hunch rested solely on Glover’s vague description, yet D’Onofrio had seen respondent only “[s]everal times, mostly in his vehicle.” Tr. 64. There was no evidence that respondent was even a suspected narcotics dealer, and D’Onofrio thought that the drugs had been purchased at a different apartment from the one Glover actually went to. Id., at 47, 68, 69. The identification of respondent provides a perfect example of the investigator and the witness bolstering each other’s inadequate knowledge to produce a seemingly accurate but actually worthless identification. See Sobel, supra, n. 1, § 3.02, at 12. MANSON v. BRATHWAITE 135 98 Marshall, J., dissenting cation and arrest, government funds used to buy heroin had been wasted. The Court discounts this overwhelming evidence of suggestiveness, however. It reasons that because D’Onofrio was not present when Glover viewed the photograph, there was “little pressure on the witness to acquiesce in the suggestion.” Ante, at 116. That conclusion blinks psychological reality.17 There is no doubt in my mind that even in D’Onofrio’s absence, a clear and powerful message was telegraphed to Glover as he looked at respondent’s photograph. He was emphatically told that “this is the man,” and he responded by identifying respondent then and at trial “whether or not he was in fact ‘the man.’ ” Foster v. California, 394 U. S., at 443.18 I must conclude that this record presents compelling evidence that there was “a very substantial likelihood of misidentification” of respondent Brathwaite. The suggestive 17 That the “identification was made in circumstances allowing care and reflection,” ante, at 116, is hardly an unequivocal sign of accuracy. Time for reflection can just as easily be time for reconstructing an image only dimly remembered to coincide with the powerful suggestion before the viewer. 18 This discussion does not imply any lack of respect for the honesty and dedication of the police. We all share the frailties of human nature that create the problem. Justice Frank O’Connor of the New York Supreme Court decried the dangers of eyewitness testimony in a recent article that began with this caveat: “From the vantage point of ten years as District Attorney of Queens County (1956-66) and six years on the trial bench (1969 to [1974]), the writer holds in high regard the professional competence and personal integrity of most policemen. Laudable instances of police efforts to clear a doubtful suspect are legion. Deliberate, willful efforts to frame or railroad an innocent man are totally unknown, at least to me. Yet, once the best-intentioned officer becomes honestly convinced that he has the right man, human nature being what it is, comers may be cut, some of the niceties forgotten, and serious error committed.” O’Connor, supra, n. 8, at 1 n. 1. 136 OCTOBER TERM, 1976 Marshall, J., dissenting 432U.S. display of respondent’s photograph to the witness Glover likely erased any independent memory that Glover had retained of the seller from his barely adequate opportunity to observe the criminal. IV Since I agree with the distinguished panel of the Court of Appeals that the legal standard of Stovall should govern this case, but that even if it does not, the facts here reveal a substantial likelihood of misidentification in violation of respondent’s right to due process of law, I would affirm the grant of habeas corpus relief. Accordingly, I dissent from the Court’s reinstatement of respondent’s conviction. JEFFERS v. UNITED STATES 137 Syllabus JEFFERS v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 75-1805. Argued March 21, 1977—Decided June 16, 1977 A federal grand jury returned two indictments against petitioner for offenses under 21 U. S. C. One charged him and nine others with violating § 846 by conspiring to distribute heroin and cocaine during a specified period in violation of §841 (a)(1), the indictment specifying, inter alia, that the conspiracy was to be accomplished by petitioner’s assumption of leadership of a certain organization, by distribution of controlled substances, and by acquisition of substantial sums of money through such distribution. The other charged petitioner alone with violating § 848, which prohibits conducting a continuing criminal enterprise to violate the drug laws, by his distributing and possessing with intent to distribute heroin and cocaine, in violation of §841 (a)(1) during the same specified period, the indictment alleging that he had undertaken the distribution “in concert” with five or more others, with respect to whom he occupied the position of organizer and supervisor, and that as a result of the distribution he had obtained a substantial income. The court denied a motion by the Government to consolidate the indictments for trial, which the petitioner and his codefendants had opposed on the grounds that neither the parties nor the charges were the same and that, based on the overt acts charged, much of the § 846 evidence would not inculpate petitioner and would therefore be inadmissible against him on the § 848 charge. Petitioner and six codefendants were first tried and found guilty on the § 846 indictment, petitioner receiving the maximum sentence applicable to him of 15 years in prison, a $25,000 fine, and three-year special parole term, and the conviction was affirmed on appeal. Petitioner then moved to dismiss the § 848 indictment on the ground that in the § 846 trial he had already been placed in jeopardy for the same offense and that the “same evidence” rule of Blockburger v. United States, 284 U. S. 299, barred the second prosecution since a § 846 conspiracy was a lesser included offense of a § 848 continuing criminal enterprise. Following denial of petitioner’s motion on the ground that the offenses were separate, petitioner was tried and found guilty of the § 848 offense, and was given the maximum sentence for a first offender, viz., life imprisonment and a $100,000 fine, to run consecutively with the § 846 sentence. The Court of Ap- 138 OCTOBER TERM, 1976 Syllabus 432 U. S. peals, although concluding that § 846 was a lesser included offense of § 848 and that the earlier conviction would normally under Blockburger bar the subsequent prosecution, held that lannelli n. United States, 420 U. S. 770, created a new double jeopardy rule applicable only to complex statutory crimes, where greater and lesser offenses could be separately punished if, as here, Congress so intended. Petitioner challenged the lannelli interpretation and also contended that the Double Jeopardy Clause was violated by the prosecution on the greater offense and conviction of the lesser and that he had not waived the double jeopardy issue. Held: The judgment is affirmed in part, vacated in part, and remanded. Pp. 147-158; 160. 532 F. 2d 1101, affirmed in part, vacated in part, and remanded. Mr. Justice Blackmun, joined by The Chief Justice, Mr. Justice Powell, and Mr. Justice Rehnquist, concluded: 1. Petitioner’s action in opposing the Government’s motion to consolidate the indictments for trial deprived him of any right he might have had against consecutive trials and the Government was therefore entitled to prosecute petitioner for the § 848 offense. This result is an exception to the rule established in Brown v. Ohio, post, p. 161, that the Double Jeopardy Clause prohibits the trial of a defendant for a greater offense after he has been convicted of a lesser included offense, being no different from other situations where a defendant enjoys protection under the Double Jeopardy Clause but for one reason or another may be retried. Here petitioner, who could have been tried in one proceeding, chose not to adopt that course and therefore was solely responsible for the separate prosecutions. Pp. 147-154. 2. It cannot be assumed that Congress intended to impose cumulative penalties under §§ 846 and 848, and petitioner is therefore entitled to have the fine imposed at the second trial reduced so that the two fines together do not exceed $100,000. Pp. 154-158. Mr. Justice White concluded that lannelli v. United States, supra, controls this case and therefore concurs in the judgment with respect to petitioner’s conviction. P. 158. Mr. Justice Stevens, joined by Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall, concurs in the judgment to the extent that it vacates the cumulative fines. P. 160. Blackmun, J., announced the judgment of the Court and delivered an opinion, in which Burger, C. J., and Powell and Rehnquist, JJ., joined. White, J., filed an opinion concurring in part in the judgment and dissenting in part, post, p. 158. Stevens, J., filed an opinion dissenting in part JEFFERS v. UNITED STATES 139 137 Opinion of Blackmun, J. and concurring in the judgment in part, in which Brennan, Stewart, and Marshall, JJ., joined, post, p. 158. Stephen C. Bower, by appointment of the Court, 429 U. S. 916, argued the cause and filed briefs for petitioner. William F. Sheehan III argued the cause for the United States. With him on the brief were Acting Solicitor General Friedman and Assistant Attorney General Thornburgh. Mr. Justice Blackmun announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Powell, and Mr. Justice Rehnquist join. This case involves the extent of the protection against multiple prosecutions afforded by the Double Jeopardy Clause of the Fifth Amendment, under circumstances in which the defendant opposes the Government’s efforts to try charges under 21 U. S. C. §§ 846 and 848 in one proceeding. It also raises the question whether § 846 is a lesser included offense of § 848. Finally, it requires further explication of the Court’s decision in lannelli v. United States, 420 U. S. 770 (1975). I A. According to evidence presented at trial, petitioner Garland Jeffers was the head of a highly sophisticated narcotics distribution network that operated in Gary, Ind., from January 1972 to March 1974. The “Family,” as the organization was known, originally was formed by Jeffers and five others and was designed to control the local drug traffic in the city of Gary. Petitioner soon became the dominant figure in the organization. He exercised ultimate authority over the substantial revenues derived from the Family’s drug sales, extortionate practices, and robberies. He disbursed funds to pay salaries of Family members, commissions of street workers, and incidental expenditures for items such as apartment rental fees, bail bond fees, and automobiles for certain 140 OCTOBER TERM, 1976 Opinion of Blackmun, J. 432U.S. members. Finally, he maintained a strict and ruthless discipline within the group, beating and shooting members on occasion. The Family typically distributed daily between 1,000 and 2,000 capsules of heroin. This resulted in net daily receipts of about $5,000, exclusive of street commissions. According to what the Court of Appeals stated was “an extremely conservative estimate,” 1 petitioner’s personal share from the operations exceeded a million dollars over the two-year period. On March 18, 1974, a federal grand jury for the Northern District of Indiana returned two indictments against petitioner in connection with his role in the Family’s operations. The first, No. H-CR-74—56, charged petitioner and nine others with an offense under 21 U. S. C. § 846,2 by conspiring to distribute both heroin and cocaine during the period between November 1, 1971, and the date of the indictment, in violation of 21 U. S. C. §841 (a)(1).3 App. 5—11. The indictment specified, among other things, that the conspiracy was to be accomplished by petitioner’s assumption of leadership of the Family organization, by distribution of controlled substances, and by acquisition of substantial sums of money through the distribution of the controlled substances. Id., at 6. The 1532 F. 2d 1101,1105 (CA7 1976). 2 Section 846 provides: “Any person who attempts or conspires to commit any offense defined in this subchapter [Control and Enforcement] is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” 3 Section 841 (a)(1) provides: “(a) . . . Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— “(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” Heroin is classified as a Schedule I narcotic drug controlled substance. 21 U. S. C. §812 (c) (Sch. I) (b) (10); 21 CFR § 1308.11 (c)(ll) (1976). Cocaine is a Schedule II narcotic drug controlled substance. 21 U. S. C. § 812 (c) (Sch. II) (a) (4); 21 CFR § 1308.12 (b) (4) (1976). JEFFERS v. UNITED STATES 141 137 Opinion of Blackmun, J. second indictment, No. H-CR-74-57, charged petitioner alone with a violation of 21 U. S. C. § 848, which prohibits conducting a continuing criminal enterprise to violate the drug laws.4 Like the first, or conspiracy, indictment, this second indictment charged that petitioner had distributed and possessed with intent to distribute both heroin and cocaine, in violation of §841 (a)(1), again between November 1, 1971, and the date of the indictment. As required by the statute, the indictment alleged that petitioner had undertaken the distribution “in concert with five or more other people with respect to whom he occupied a position of organizer, supervisor and 4 Section 848 provides, in relevant part: “(a) . . . (1) Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 10 years and which may be up to life imprisonment, to a fine of not more than $100,000, and to the forfeiture prescribed in paragraph (2) . . . . “(2) Any person who is convicted under paragraph (1) of engaging in a continuing criminal enterprise shall forfeit to the United States— “(A) the profits obtained by him in such enterprise, and “(B) any of his interest in, claim against, or property or contractual rights of any kind affording a source of influence over, such enterprise. “(b) . . . For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if— “(1) he violates any provision of this subchapter or subchapter II of this chapter [Import and Export] the punishment for which is a felony, and “(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter— “(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and, “(B) from which such person obtains substantial income or resources. “(c) ... In the case of any sentence imposed under this section, imposition or execution of such sentence shall not be suspended, probation shall not be granted, and section 4202 of Title 18 [repealed March 15, 1976, by Pub. L. 94—233, 90 Stat. 219, and replaced by a new § 4205, each relating to eligibility of prisoners for parole] ... shall not apply.” 142 OCTOBER TERM, 1976 Opinion of Blackmun, J. 432 U. S. manager,” and that as a result of the distribution and other activity he had obtained substantial income. App. 3-4. Shortly after the indictments were returned, the Government filed a motion for trial together, requesting that the continuing-criminal-enterprise charge be tried with the general conspiracy charges against petitioner and his nine codefendants. Id., at 12-14. The motion alleged that joinder would be proper under Fed. Rule Crim. Proc. 8, since the offenses charged were of the same or similar character and they were based on the same acts or transactions constituting parts of a common scheme or plan. It also represented that much of the evidence planned for the § 848 trial was based on the same transactions as those involved in the § 846 case. Consequently, it argued that joinder was appropriate and within the court’s power pursuant to Fed. Rule Crim. Proc. 13. The defendants in the § 846 case filed a joint objection to the Government’s motion. App. 15-24. Petitioner and his nine codefendants argued generally that joinder would be improper under Fed. Rules Crim. Proc. 8 and 14, since neither the parties nor the charges were the same. The codefendants were particularly concerned about the probable effect of the evidence that would be introduced to support the continuing-criminal-enterprise charge and about the jury’s ability to avoid confusing the two cases. Another argument in the objection focused directly on petitioner.5 It noted that the § 846 indict 5 The dissenters attempt to undercut the force of petitioner’s opposition to trial together by asserting that the motion “gave relatively little emphasis to arguments relating to petitioner alone.” Post, at 159 n. 4. On the contrary, the memorandum supporting the defendants’ motion took pains to point out which objections to trial together were relevant to Jeffers alone. See App. 18, 22-23. Indeed, the last argument before the conclusion stated: “ [I]t is likely that much of the evidence which will be presented in the conspiracy trial does not 'directly’ inculpate the defendant, GARLAND JEFFERS, and would, therefore, be inadmissible against him in the 'continuing criminal enterprise’ indictment unless a direct link could be established. All of the said overt acts would, however, be JEFFERS v. UNITED STATES 143 137 Opinion of Blackmun, J. ment charged 17 overt acts, but that petitioner was named in only 10 of them, and was alleged to have participated actively in only 9. Thus, the argument went, it was likely that much of the evidence in the conspiracy trial would not inculpate petitioner and would therefore be inadmissible against him in the continuing-criminal-enterprise trial. Although a severance of the conspiracy charges against petitioner from those against the nine codefendants might have alleviated this problem, petitioner never made such a motion under Rule 14. On May 7, the court denied the Government’s motion for trial together and thereby set the stage for petitioner’s first trial on the conspiracy charges. B. The trial on the § 846 indictment took place in June 1974. A jury found petitioner and six of his codefendants guilty. Petitioner received the maximum punishment applicable to him under the statute—15 years in prison, a fine of $25,000, and a 3-year special parole term.0 The Court of Appeals affirmed the conviction, 520 F. 2d 1256 (CA7 1975), and this Court denied certiorari, 423 U. S. 1066 (1976).7 admissible, or at least arguably so, in the conspiracy trial. The prejudice to the defendant, JEFFERS, is therefore, imminent and clear.” Id., at 22. In addition to the arguments relating specifically to Jeffers, the memorandum contained a number of points designed to apply equally to all defendants. We see no reason to read it as implicitly excluding Jeffers. G As indicated in n. 2, supra, § 846 provides that the sentence for the conspiracy offense shall not exceed the maximum punishment prescribed for the substantive offense the commission of which was the object of the conspiracy. The maximum punishment for a first offender for a violation of §841 (a)(1), in which a Schedule I or II narcotic drug is the controlled substance in question, is a term of imprisonment of not more than 15 years, a fine of not more than $25,000, or both. § 841 (b)(1)(A). 7 After this Court’s refusal to review the decision on certiorari, petitioner filed a motion under 28 U. S. C. § 2255 for postconviction relief. The District Court denied the motion, the Court of Appeals affirmed, 544 F. 2d 523, and this Court again denied certiorari. 430 U. S. 935 (1977). 144 OCTOBER TERM, 1976 Opinion of Blackmun, J. 432U.S. While the conspiracy trial and appeal were proceeding, petitioner was filing a series of pretrial motions in the pending criminal-enterprise case. When it appeared that trial was imminent, petitioner filed a motion to dismiss the indictment on the ground that in the conspiracy trial he already had been placed in jeopardy once for the same offense. He argued both that the two indictments arose out of the same transaction, and therefore the second trial should be barred under that theory of double jeopardy, and that the “same evidence” rule of Blockburger v. United States, 284 U. S. 299 (1932), should bar the second prosecution, since a § 846 conspiracy was a lesser included offense of a § 848 continuing criminal enterprise.8 To forestall the Government’s anticipated waiver argument, petitioner asserted that waiver was impossible, since his objection to trying the two counts together was based on his Sixth Amendment right to a fair trial, and his opposition to the § 848 trial was based on his Fifth Amendment double jeopardy right. A finding of waiver, according to his argument, would amount to penalizing the exercise of one constitutional right by denying another. App. 25-27. The Government, in its response to the motion to dismiss, asserted that §§ 846 and 848 were separate offenses, and for this reason petitioner would not be placed twice in jeopardy by the second trial.9 The District Court agreed with this analysis and denied petitioner’s motion shortly before the second trial began. 8 In his opposition to the Government’s motion for trial together, however, when he joined the argument that the jury would be confused by consolidation, petitioner apparently had argued in favor of construing the statutes to create separate offenses. App. 19. He also joined the argument that “identity of charges” was lacking. Id., at 15. 9 Language in the Government’s memorandum appears to concede that § 846 is a lesser included offense: “Title 21, United States Code, Section 848, requires proof of the elements previously set out in Section 846 but additional elements are required.” App. 34. It is unnecessary for present purposes to rely on any such concession. JEFFERS v. UNITED STATES 145 137 Opinion of Blackmun, J. At the second trial, the jury found petitioner guilty of engaging in a continuing criminal enterprise. Again, he received the maximum sentence for a first offender. life imprisonment and a fine of $100,000. See n. 4, supra. The judgment specified that the prison sentence and the fine were “to run consecutive with sentence imposed in H-CR-74-56 [the conspiracy case].” Record, Doc. 105. Thus, at the conclusion of the second trial, petitioner found himself with a life sentence without possibility of probation, parole, or suspension of sentence, and with fines totaling $125,000.10 On appeal, the conviction and sentence were upheld. 532 F. 2d 1101 (CA7 1976). The Court of Appeals concluded that § 846 was a lesser included offense of § 848, since the continuing-criminal-enterprise statute expressly required proof that the accused had acted in concert with five or more other persons. In the court’s view, this requirement was tantamount to a proof of conspiracy requirement.11 Construing § 848 to require proof of agreement meant that all the elements of the § 846 offense had to be proved for § 848, in addition to the elements of a supervisory position and the obtaining of substantial income or resources;12 thus, §§846 10 Nothing in the record of Case No. H—CR—74—56 suggests that the $25,000 fine was credited against the $100,000 fine. The record of Case No. H-CR-74-57 expressly indicates that the contrary was true, and we proceed on that assumption. 11 The District Court actually instructed the jury that the Government might prove that the object of the continuing criminal enterprise was to commit a violation under § 846, the conspiracy statute, rather than to violate § 841 (a) (1). App. 45. The court therefore gave a complete conspiracy charge to the jury. Id., at 46-48. The Government argues that this instruction was erroneous. Without resolving that issue or exploring the implications of the Government’s position, we merely note that the District Court’s decision to give the instruction reflects the conceptual closeness of the two statutes. 12 Section 848 by its terms covers violations of both subchapter I of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and 146 OCTOBER TERM, 1976 Opinion of Blackmun, J. 432 U. S. and 848 satisfied the general test for lesser included offenses. Although the court stated that ordinarily conviction of a lesser included offense would bar a subsequent prosecution for the greater offense, relying on Gavieres v. United States, 220 U. S. 338 (1911); Blockburger v. United States, supra; and Waller v. Florida, 397 U. S. 387 (1970), it read lannelli v. United States, 420 U. S. 770 (1975), to create a new double jeopardy rule applicable only to complex statutory crimes. The two statutes at issue in lannelli were 18 U. S. C. § 371, the general federal conspiracy statute, and 18 U. S. C. § 1955, the statute prohibiting illegal gambling businesses involving five or more persons. Despite language in lannelli seemingly to the contrary, 420 U. S., at 785 n. 17, the Court of Appeals stated that § 371 is a lesser included offense of § 1955. 532 F. 2d, at 1109. The court attached no significance to the fact that § 1955 contains no requirement of action “in concert.” It believed that lannelli held that greater and lesser offenses could be punished separately if Congress so intended, and it adopted the same approach to the multiple-prosecution question before it. Finding that Congress, in enacting § 848, was interested in punishing severely those who made a substantial living from drug dealing, and that Congress intended to make § 848 an independent crime, the court concluded that §§ 846 and 848 were not the “same offense” for double jeopardy purposes. It therefore held that the conviction on the first indictment did not bar the prosecution on the second. In his petition for certiorari, petitioner challenged the Court of Appeals’ reading of lannelli and suggested again that § 846 was a lesser included offense of § 848. He also contended that the Double Jeopardy Clause was violated by the prosecution on the greater offense after conviction for the lesser. Finally, he argued that he had not waived the double jeopardy subchapter II of the Act, while § 846 deals only with subchapter I. The exact counterpart to § 846, however, is § 963 in subchapter II. In this case, no one disputes the fact that only subchapter I is involved. JEFFERS v. UNITED STATES 147 137 Opinion of Blackmun, J. issue. In addition to these issues, it appears that cumulative fines were imposed on petitioner, which creates a multiplepunishment problem. We granted certiorari. 429 U. S. 815 (1976). We consider first the multiple prosecution, lesser included offense, and waiver points, and then we address the multiple-punishment problem. II A. The Government’s principal argument for affirming the judgment of the Court of Appeals is that lannelli controls this case. Like the conspiracy and gambling statutes at issue in lannelli, the conspiracy and continuing-criminal-enterprise statutes at issue here, in the Government’s view, create two separate offenses under the “same evidence” test of Blockburger. The Government’s position is premised on its contention that agreement is not an essential element of the § 848 offense, despite the presence in § 848 (b) (2) (A) of the phrase “in concert with.” If five “innocent dupes” each separately acted “in concert with” the ringleader of the continuing criminal enterprise, the Government asserts, the statutory requirement would be satisfied. Brief for United States 23. If the Government’s position were right, this would be a simple case. In our opinion, however, it is not so easy to transfer the lannelli result, reached in the context of two other and different statutes, to this case. In lannelli, the Court specifically noted: “Wharton’s Rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents.” 420 U. S., at 785 (emphasis in original). Elaborating on that point, the Court stated: “The essence of the crime of conspiracy is agreement, ... an element not contained in the statutory definition of the § 1955 offense.” Id., at 785 n. 17. Because of the silence of § 1955 with regard to the necessity of concerted activity, the Court felt constrained to construe the statute to permit the possibility that 148 OCTOBER TERM, 1976 Opinion of Blackmun, J. 432U.S. the five persons “involved” in the gambling operation might not be acting together.13 See also Pinkerton v. United States, 328 U. S. 640, 643 (1946). The same flexibility does not exist with respect to the continuing-criminal-enterprise statute. Section 848 (b) (2) (A) restricts the definition of the crime to a continuing series of violations undertaken by the accused “in concert with five or more other persons.” Clearly, then, a conviction would be impossible unless concerted activity were present. The express “in concert” language in the statutory definition quite plausibly may be read to provide the necessary element of “agreement” found wanting in § 1955. Even if § 848 were read to require individual agreements between the leader of the enterprise and each of the other five necessary participants, enough would be shown to prove a conspiracy. It would be unreasonable to assume that Congress did not mean anything at all when it inserted these critical words in § 848.14 In the 13 The Court’s use of the term “concerted activity” to describe § 1955’s requirement that five or more persons must be involved in the gambling business, 420 U. S., at 790, does not indicate a contrary understanding. At that point in the opinion the Court simply was addressing its attention to the reason why § 1955 requires the participation of a significant number of persons in the business. As a practical matter, the group involved often will act in concert. This, however, is not necessarily the case—a fact the Court acknowledged in its Blockburger analysis, 420 U. S., at 785 n. 17. 14 The legislative history, the use that Congress has made of the phrase “in concert” in other statutes, and the plain meaning of that term all support the interpretation suggested for § 848. The House Report on H. R. 18583, which eventually became Pub. L. 91-513, the Comprehensive Drug Abuse Prevention and Control Act of 1970, assumed that the meaning of “in concert” was clear, since it never defined the phrase further. See, e. g., H. R. Rep. No. 91-1444, Pt. 1, p. 50 (1970). Even the writers of additional views did not include an objection to the nondefinition of the term in their criticisms of other aspects of the continuing-criminal-enter-prise section of the law. The Senate Report on S. 3246, the Senate version of the same law, did shed some light on the problem. See S. Rep. No. 91-613 (1969). In the Section-by-Section Analysis of the bill, the report states: “Subsection (f) of this section sets out the criteria which must be met JEFFERS v. UNITED STATES 149 137 Opinion of Blackmun, J. absence of any indication from the legislative history or elsewhere to the contrary, the far more likely explanation is that Congress intended the word “concert” to have its common meaning of agreement in a design or plan. For the purposes of this case, therefore, we assume, arguendo, that § 848 does before a defendant can be deemed involved in a continuing criminal enterprise. The court must find by a preponderance of evidence that the defendant acted in concert with or conspired with at least five other persons engaged in a continuing criminal enterprise involving violations of the act.” Id., at 28 (emphasis added). The actual language of the bill, however, used the words “in concert with” to cover both concerted action and conspiracy. Id., at 121. Thus, it is apparent that the Senate understood the term “in concert” to encompass the concept of agreement. The debates reveal that Congress was concerned with providing severe penalties for professional criminals when it included the continuing-criminal-enterprise section in the statute. See, e. g., 116 Cong. Rec. 995 (1970) (remarks of Sen. Dodd); id., at 1181 (remarks of Sen. Thurmond); id., at 33631 (remarks of Cong. Weicker); id., at 33314 (remarks of Cong. Bush). This concern undercuts the Government’s argument that one professional criminal might have “conned” five innocent dupes into working for him, all of them being unaware that the purpose of the work was to conduct an illegal drug business, and none agreeing to do so. When the phrase “in concert” has been used in other statutes, it has generally connoted cooperative action and agreement. See, e. g., 2 U. S. C. §§434 (b)(13), 441a (a)(7) (B)(i) (1976 ed.) (Federal Election Campaign Act Amendments of 1976); 7 U. S. C. § 13c (a) (1970 ed., Supp. V) (Commodity Futures Trading Commission Act of 1974—liability as principal) ; 10 U. S. C. § 894 (a) (Code of Military Justice—mutiny or sedition) ; 29 U. S. C. §§ 52, 104, 105 (Norris-LaGuardia Act); 46 U. 8. C. § 1227 (Merchant Marine Act—agreements with other carriers forbidden) ; 49 U. S. C. §322 (b)(1) (Interstate Commerce Act, Part II—unlawful operation of motor carriers). This suggests that Congress intended the same words to have the same meaning in § 848. Even lannelli did not require the word “conspiracy” to be spelled out in the statutory definition, as long as the concept of agreement was included therein. 420 U. S., at 785 n. 17. Since the word “concert” commonly signifies agreement of two or more persons in a common plan or enterprise, a clearly articulated statement from Congress to the contrary would be necessary before that meaning should be abandoned. 150 OCTOBER TERM, 1976 Opinion of Blackmun, J. 432 U. S. require proof of an agreement among the persons involved in the continuing criminal enterprise.15 So construed, § 846 is a lesser included offense of § 848, because § 848 requires proof of every fact necessary to show a violation under § 846 as well as proof of several additional elements.16 B. Brown v. Ohio, post, p. 161, decided today, establishes the general rule that the Double Jeopardy Clause prohibits a State or the Federal Government from trying a defendant for a greater offense after it has convicted him of a lesser included offense. Post, at 168-169. What lies at the heart of the Double Jeopardy Clause is the prohibition against multiple prosecutions for “the same offense.” See United States v. Wilson, 420 U. S. 332, 343 (1975). Brown reaffirms the rule that one convicted of the greater offense may not be 15 In connection with this assumption, we note that until the Court of Appeals in this case found that § 846 was a lesser included offense of § 848, no other appellate court had considered the issue. Indeed, after lannelli it would have been fair to assume that the question was open. The dissenting opinion here is based on the premise that it was beyond dispute that §§ 846 and 848 were so related. From there, it is easy to reason that the prosecutor should be held accountable for the presumed error that occurred. Because the premise fails, however, this case cannot be fit so neatly into the niche that would be fashioned by the dissent. Unless it is plain that two offenses are “the same” for double jeopardy purposes, the parties and the court should be entitled to assume that successive prosecutions are an available option. This assumption would only be reinforced if the defendant affirmatively asked the court to require two proceedings, and in connection with his request he actively sought postponement of the second trial, as Jeffers did. Under the circumstances, it is hardly accurate to say, as the dissent does, that Jeffers was being required to give legal advice to the prosecution. On the contrary, he was simply under an obligation to preserve his double jeopardy point properly, by alerting both court and prosecution to the existence of a complex, unsettled issue. 16 The two indictments in this case are remarkably similar in detail. It is clear that the identical agreement and transactions over the identical time period were involved in the two cases. It is also quite clear that none of the participants were “innocent dupes.” JEFFERS v. UNITED STATES 151 137 Opinion of Blackmun, J. subjected to a second prosecution on the lesser offense, since that would be the equivalent of two trials for “the same offense.” Post, at 168. See In re Nielsen, 131 U. S. 176, 187 (1889). Because two offenses are “the same” for double jeopardy purposes unless each requires proof of an additional fact that the other does not, post, at 168, it follows that the sequence of the two trials for the greater and the lesser offense is immaterial,17 and trial on a greater offense after conviction on a lesser ordinarily is just as objectionable under the Double Jeopardy Clause as the reverse order of proceeding.18 Cf. Waller v. Florida, 397 U. S., at 390. Contrary to the suggestion of the Court of Appeals, lannelli created no exception to these general jeopardy principles for complex statutory crimes.19 The rule established in Brown, however, does have some exceptions. One commonly recognized exception is when all the events necessary to the greater crime have not taken place at the time the prosecution for the lesser is begun. See Brown v. Ohio, post, at 169 n. 7; Blackledge v. Perry, 417 U. S. 21, 28-29, and n. 7 (1974); Diaz v. United States, 223 U. S. 442 (1912). See also Ashe v. Swenson, 397 U. S. 436, 17 It is also possible to argue that a second trial on a greater offense is prohibited by the Double Jeopardy Clause because the defendant is necessarily placed twice in jeopardy on the lesser offense. The risk of conviction on the greater means nothing more than a risk of conviction upon proof of all the elements of the lesser plus proof of the additional elements needed for the greater. Brown v. Ohio, post, at 167 n. 6, leaves consideration of the implications of this theory for another day. 18 Any adjustment in punishment for the fact that the defendant already has been punished for the lesser offense is not adequate to cure the injury suffered because of multiple prosecutions, since the double jeopardy problem inheres in the very fact of a second trial for the “same” offense. See Blackledge v. Perry, 417 U. S. 21, 30-31 (1974); Price v. Georgia, 398 U. S. 323, 329 (1970). 19 The Government makes no attempt to defend the Court of Appeals’ reading of lannelli; indeed, it states that that court misconstrued lannelli. Brief for United States 22 n. 10. 152 OCTOBER TERM, 1976 Opinion of Blackmun, J. 432 U. S. 453 n. 7 (1970) (Brennan, J., concurring). This exception may also apply when the facts necessary to the greater were not discovered despite the exercise of due diligence before the first trial. Ibid. If the defendant expressly asks for separate trials on the greater and the lesser offenses, or, in connection with his opposition to trial together, fails to raise the issue that one offense might be a lesser included offense of the other, another exception to the Brown rule emerges. This situation is no different from others in which a defendant enjoys protection under the Double Jeopardy Clause, but for one reason or another retrial is not barred. Thus, for example, in the case of a retrial after a successful appeal from a conviction, the concept of continuing jeopardy on the offense for which the defendant was convicted applies, thereby making retrial on that offense permissible. See Price n, Georgia, 398 U. S. 323 (1970); Green n. United States, 355 U. S. 184 (1957); United States v. Ball, 163 U. S. 662 (1896). In a slightly different context, the defendant’s right to have the need for a retrial measured by the strict “manifest necessity” standard of United States v. Perez, 9 Wheat. 579 (1824), does not exist if the mistrial was granted at the defendant’s request. United States v. Dinitz, 424 U. S. 600 (1976). Both the trial after the appeal and the trial after the mistrial are, in a sense, a second prosecution for the same offense, but, in both situations, the policy behind the Double Jeopardy Clause does not require prohibition of the second trial. Similarly, although a defendant is normally entitled to have charges on a greater and a lesser offense resolved in one proceeding, there is no violation of the Double Jeopardy Clause when he elects to have the two offenses tried separately and persuades the trial court to honor his election.20 20 The considerations relating to the propriety of a second trial obviously would be much different if any action by the Government contributed to the separate prosecutions on the lesser and greater charges. No hint JEFFERS v. UNITED STATES 153 137 Opinion of Blackmun, J. C. In this case, trial together of the conspiracy and continuing-criminal-enterprise charges could have taken place without undue prejudice to petitioner’s Sixth Amendment right to a fair trial.21 If the two charges had been tried in one proceeding, it appears that petitioner would have been entitled to a lesser-included-offense instruction. See Fed. Rule Crim. Proc. 31 (c); Keeble v. United States, 412 U. S. 205 (1973); cf. Sansone v. United States, 380 U. S. 343, 349-350 of that is present in the case before us, since the Government affirmatively sought trial on the two indictments together. Unlike the dissenters, we are unwilling to attach any significance to the fact that the grand jury elected to return two indictments against petitioner for the two statutory offenses. As the Court of Appeals’ opinion made clear, before this case it was by no means settled law that § 846 was a lesser included offense of § 848. See 532 F. 2d, at 1106-1111. See also Brief for United States 18-32; n. 15, supra. Even now, it has not been necessary to settle that issue definitively. See supra, at 149-150. If the position reasonably could have been taken that the two statutes described different offenses, it is difficult to ascribe any improper motive to the act of requesting two separate indictments. Furthermore, as noted supra, at 142, it was the Government itself that requested a joint trial on the two indictments, which also indicates that no sinister purpose was behind the formal method of proceeding. 21 Petitioner argues that a finding of waiver is inconsistent with the decision in Simmons n. United States, 390 U. S. 377, 389-394 (1968), where the Court held that a defendant could not be required to surrender his Fifth Amendment privilege against compulsory self-incrimination in order to assert an arguably valid Fourth Amendment claim. In petitioner’s case, however, the alleged Hobson’s choice between asserting the Sixth Amendment fair trial right and asserting the Fifth Amendment double jeopardy claim is illusory. Had petitioner asked for a Rule 14 severance from the other defendants, the case might be different. In that event, he would have given the court an opportunity to ensure that prejudicial evidence relating only to other defendants would not have been introduced in his trial. Assuming that a valid Fifth Amendment point was in the background, due to the relationship between §§ 846 and 848, petitioner could have had no complaint about a trial of the two charges together. No such motion, however, was made. Under the circumstances of this case, therefore, no dilemma akin to that in Simmons arose. 154 OCTOBER TERM, 1976 Opinion of Blackmun, J. 432 U. S. (1965). If such an instruction had been denied on the ground that § 846 was not a lesser included offense of § 848, petitioner could have preserved his point by proper objection. Nevertheless, petitioner did not adopt that course. Instead, he was solely responsible for the successive prosecutions for the conspiracy offense and the continuing-criminal-enterprise offense.22 Under the circumstances, we hold that his action deprived him of any right that he might have had against consecutive trials. It follows, therefore, that the Government was entitled to prosecute petitioner for the § 848 offense, and the only issue remaining is that of cumulative punishments upon such prosecution and conviction. Ill Although both parties, throughout the proceedings, appear to have assumed that no cumulative-punishment problem is present in this case,23 the imposition of the separate fines 22 Petitioner’s position is not strengthened merely because no one raised the multiple-prosecution point during the first proceeding. Since the Government’s posture throughout this case has been that §§ 846 and 848 are separate offenses, it could not have been expected on its own to elect between them when its motion for trial together was denied. The right to have both charges resolved in one proceeding, if it exists, was petitioner’s; it was therefore his responsibility to bring the issue to the District Court’s attention. 23 Brief for Petitioner 21; Brief for United States 9. See, however, the Government’s statement, Tr. of Oral Arg. 36: “[W]e submit, the Double Jeopardy Clause does not bar prosecution for the greater offense, provided, of course, that there was a conviction on the lesser included offense and provided that any punishment that he has suffered on the lesser offense be credited.” Different considerations govern the propriety of addressing the cumulative-punishment issue, since petitioner, for obvious reasons, never affirmatively argued that the difference in the two statutes was so great as to authorize separate punishments, and he did argue implicitly that separate trials would be permissible. Even if the two indictments had been tried together, the cumulative-punishment issue would remain. JEFFERS v. UNITED STATES 155 137 Opinion of Blackmun, J. seems squarely to contradict that assumption.24 Fines, of course, are treated in the same way as prison sentences for purposes of double jeopardy and multiple-punishment analysis. See North Carolina v. Pearce, 395 U. S. 711, 718 n. 12 (1969). In this case, since petitioner received the maximum fine applicable to him under § 848, it is necessary to decide whether cumulative punishments are permissible for violations of §§ 846 and 848. The critical inquiry is whether Congress intended to punish each statutory violation separately. See, e. g., Prince v. United States, 352 U. S. 322, 327 (1957); Callanan v. United States, 364 U. S. 587, 594 (1961); Milano vich v. United States, 365 U. S. 551, 554 (1961). Cf. Bell v. United States, 349 U. S. 81, 82 (1955). In lannelli v. United States, the Court concluded that Congress did intend to punish violations of § 1955 separately from § 371 conspiracy violations. Since the two offenses were different, there was no need to go further. See 420 U. S., at 785-786, nn. 17-18. See also Gore v. United States, 357 U. S. 386 (1958). If some possibility exists that the two statutory offenses are the “same offense” for double jeopardy purposes, however, it is necessary to examine the problem closely, in order to avoid constitutional multiple-punishment difficulties. See North Carolina v. Pearce, 395 U. S., at 717; United States v. Wilson, 420 U. S., at 343.25 As petitioner concedes, Reply Brief for Petitioner 3, the first issue to be considered is whether Congress intended to allow cumulative punishment for violations of §§ 846 and 848. We have concluded that it did not, and this again makes it unnecessary to reach the lesser-included-offense issue. 24 For present purposes, since petitioner is not eligible for parole at any time, there is no need to examine the Government’s argument that the prison sentences do not present any possibility of cumulative punishment. 25 Cf. United States v. Gaddis, 424 U. S. 544, 549 n. 12 (1976) (vacating convictions and sentences under 18 U. S. C. §2113 (a) in light of conviction under §2113 (d)). 156 OCTOBER TERM, 1976 Opinion of Blackmun, J. 432U.S. Section 848 itself reflects a comprehensive penalty structure that leaves little opportunity for pyramiding of penalties from other sections of the Comprehensive Drug Abuse Prevention1 and Control Act of 1970. Even for a first offender, the statute authorizes a maximum prison sentence of life, a fine of $100,000, and a forfeiture of all profits obtained in the enterprise and of any interest in, claim against, or property or contractual rights of any kind affording a source of influence over, the enterprise. §§ 848 (a)(1), (2). The statute forbids suspension of the imposition or execution of any sentence imposed, the granting of probation, and eligibility for parole. § 848 (c). In addition, § 848 is the only section in the statutes controlling drug abuse that provides for a mandatory minimum sentence. For a first offender, that minimum is 10 years. § 848 (a)(1). A second or subsequent offender must receive a minimum sentence of 20 years, and he is subject to a fine of up to $200,000, as well as the forfeiture described above and the maximum of lifetime imprisonment. Ibid. Since every § 848 violation by definition also will involve a series of other felony violations of the Act, see §§ 848 (b)(1), (2), there would have been no point in specifying maximum fines for the § 848 violation if cumulative punishment was to be permitted. The legislative history of § 848 is inconclusive on the question of cumulative punishment.26 The policy reasons usually offered to justify separate punishment of conspiracies and 26 The Congress was plainly interested in punishing the professional criminal severely when it passed § 848. See, e. g., S. Rep. No. 91-613, pp. 2, 7 (1969); 116 Cong. Rec. 995, 1181, 1664 (1970) (remarks in Senate debate); id., at 33300-33301, 33304, 33314 (remarks in House debate). Taken alone, this might support an argument for cumulative penalties. The House Report, however, indicates that the penalty scheme of the continuing-criminal-enterprise section was to be separate from the rest of the penalties. H. R. Rep. No. 91-1444, pt. 1, pp. 10-11 (1970). In light of these arguably conflicting conclusions from the legislative history, we see no reason to deviate from the result suggested by the structure of the statute itself. JEFFERS v. UNITED STATES 157 137 Opinion of Blackmun, J. underlying substantive offenses, however, are inapplicable to §§ 846 and 848. In Callanan v. United States, 364 U. S., at 593-594, the Court summarized these reasons: “[C]ollective criminal agreement—partnership in crime— presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.” Accord, lannelli v. United States, 420 U. S., at 778. As this discussion makes clear, the reason for separate penalties for conspiracies lies in the additional dangers posed by concerted activity. Section 848, however, already expressly prohibits this kind of conduct. Thus, there is little legislative need to further this admittedly important interest by authorizing consecutive penalties from the conspiracy statute. Our conclusion that Congress did not intend to impose cumulative penalties under §§ 846 and 848 is of minor significance in this particular case. Since the Government had the right to try petitioner on the § 848 indictment, the court had the power to sentence him to whatever penalty was authorized by that statute. It had no power, however, to impose on him a fine greater than the maximum permitted by § 848. Thus, if petitioner received a total of $125,000 in fines 158 OCTOBER TERM, 1976 Opinion of Stevens, J. 432 U. S. on the two convictions, as the record indicates, he is entitled to have the fine imposed at the second trial reduced so that the two fines together do not exceed $100,000. The judgment of the Court of Appeals, accordingly, is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Mr. Justice White, concurring in the judgment in part and dissenting in part. Because I agree with the United States that lannelli v. United States, 420 U. S. 770 (1975), controls this case, I for that reason concur in the judgment of the Court with respect to petitioner’s conviction. For the same reason and because the conspiracy proved was not used to establish the continuing criminal enterprise charged, I dissent from the Court’s judgment with respect to the fines and from Part III of the plurality’s opinion. Mr. Justice Stevens, with whom Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall join, dissenting in part, and concurring in the judgment in part. There is nothing novel about the rule that a defendant may not be tried for a greater offense after conviction of a lesser included offense. It can be traced back to Blackstone, and “has been this Court’s understanding of the Double Jeopardy Clause at least since In re Nielsen^, 131 U. S. 176,] was decided in 1889,” Brown v. Ohio, post, at 168.1 I would not permit the prosecutor to claim ignorance of this ancient rule, or to evade it by arguing that the defendant failed to advise him of its existence or its applicability. 1 As the Court notes in Brown, Nielsen cites an 1833 New Jersey case; that case in turn quotes Blackstone. State v. Cooper, 13 N. J. L. 361, 375. See 4 W. Blackstone, Commentaries *336. JEFFERS v. UNITED STATES 159 137 Opinion of Stevens, J. The defendant surely cannot be held responsible for the fact that two separate indictments were returned,2 or for the fact that other defendants were named in the earlier indictment, or for the fact that the Government elected to proceed to trial first on the lesser charge.3 The other defendants had valid objections to the Government’s motion to consolidate the two cases for trial.4 Most trial lawyers will be startled to learn that a rather routine joint opposition to that motion to consolidate has resulted in the loss5 of what this Court used to regard as “a vital safeguard in our society, one that 2 The plurality implies that the result in this case would be different “if any action by the Government contributed to the separate prosecutions on the lesser and greater charges.” Ante, at 152 n. 20. I wonder how the grand jury happened to return two separate indictments. 3 The Government retained the alternative of trying petitioner on both charges at once, while trying the other defendants separately for conspiracy. The prosecutor never attempted this course, and defense counsel—not having had an opportunity to read today’s plurality opinion—had no reason to believe he had a duty to suggest it. Until today it has never been the function of the defense to give legal advice to the prosecutor. 4 When the Government attempted to obtain a joint trial on all the charges against all the defendants, the attorney representing all the defendants resisted the Government motion. He did so largely because of the possible prejudice to petitioner’s codefendants, and gave relatively little emphasis to arguments relating to petitioner alone. See ante, at 142-143, n. 5. 5 It is quite clear from the plurality opinion that petitioner has been denied his constitutional rights. As that opinion states, it is “the general rule that the Double Jeopardy Clause prohibits a State or the Federal Government from trying a defendant for a greater offense after it has convicted him of a lesser included offense.” Ante, at 150. And, as the plurality also demonstrates, that is precisely what happened here. Ante, at 147-150. Two additional facts, also noted by the plurality, clinch the double jeopardy claim: (1) petitioner was not only twice tried, but also twice punished for the same offense, ante, at 154—158; and (2) the instructions at the second trial required petitioner to defend against the lesser charge for a second time, ante, at 145 n. 11. 160 OCTOBER TERM, 1976 Opinion of Stevens, J. 432 U. S. was dearly won and one that should continue to be highly valued,” Green v. United States, 355 U. S. 184, 198.6 See United States v. Alford, 516 F. 2d 941, 945 n. 1 (CA5 1975). It is ironic that, while the State’s duty to give advice to an accused is contracting, see, e. g., Oregon n. Mathiason, 429 U. S. 492, a new requirement is emerging that the accused, in order to preserve a constitutional right, must inform the prosecution about the legal consequences of its acts. Even the desirability of extending Mr. Jeffers’ incarceration does not justify this unique decision.7 While I concur in the judgment to the extent that it vacates the cumulative fines, I respectfully dissent from the affirmance of the conviction. 6 The following sentence by Mr. Justice Black is also worth remembering: “If such great constitutional protections are given a narrow, grudging application, they are deprived of much of their significance.” Green, 355 U. S., at 198. 7 The Court’s disposition is especially troubling because eight Justices agree that petitioner’s constitutional right was violated and only four are persuaded that he waived his double jeopardy objection. BROWN v. OHIO 161 Syllabus BROWN v. OHIO CERTIORARI TO THE COURT OF APPEALS OF OHIO, CUYAHOGA COUNTY No. 75-6933. Argued March 21, 1977—Decided June 16, 1977 The Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth, held to bar prosecution and punishment for the crime of stealing an automobile following prosecution and punishment for the lesser included offense of operating the same vehicle without the owner’s consent. Pp. 164-170. (a) “[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. In line with that test, the Double Jeopardy Clause generally forbids successive prosecution and cumulative punishment for a greater and lesser included offense. Pp. 166-169. (b) Here, though the Ohio Court of Appeals properly held that under state law joyriding (taking or operating a vehicle without the owner’s consent) and auto theft (joyriding with the intent permanently to deprive the owner of possession) constitute “the same statutory offense” within the meaning of the Double Jeopardy Clause, it erroneously concluded that petitioner could be convicted of both crimes because the charges against him had focused on different parts of the 9-day interval between petitioner’s taking of the car and his apprehension. There was still only one offense under Ohio law, and the specification of different dates in the two charges against petitioner cannot alter the fact that he was twice placed in jeopardy for the same offense in violation of the Fifth and Fourteenth Amendments. Pp. 169-170. Reversed. Powell, J., delivered the opinion of the Court, in which Brennan, Stewart, White, Marshall, and Stevens, JJ., joined. Brennan, J., filed a concurring opinion, in which Marshall, J., joined, post, p. 170. Blackmun, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 170. Robert Plautz, by appointment of the Court, 429 U. S. 997, 162 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. argued the cause for petitioner. With him on the briefs was Glenn Billington. George J. Sadd argued the cause for respondent. With him on the briefs was John T. Corrigan. Mr. Justice Powell delivered the opinion of the Court. The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment bars prosecution and punishment for the crime of stealing an automobile following prosecution and punishment for the lesser included offense of operating the same vehicle without the owner’s consent. I On November 29, 1973, the petitioner, Nathaniel Brown, stole a 1965 Chevrolet from a parking lot in East Cleveland, Ohio. Nine days later, on December 8, 1973, Brown was caught driving the car in Wickliffe, Ohio. The Wickliffe police charged him with “joyriding”—taking or operating the car without the owner’s consent—in violation of Ohio Rev. Code Ann. § 4549.04 (D) (1973, App. 342).1 The complaint charged that “on or about December 8, 1973, . . . Nathaniel H. Brown did unlawfully and purposely take, drive or operate a certain motor vehicle to wit; a 1965 Chevrolet . . . without the consent of the owner one Gloria Ingram . . . .” App. 3. Brown pleaded guilty to this charge and was sentenced to 30 days in jail and a $100 fine. Upon his release from jail on January 8, 1974, Brown was returned to East Cleveland to face further charges, and on February 5 he was indicted by the Cuyahoga County grand jury. The indictment was in two counts, the first charging 1 Section 4549.04 (D) provided at the time: “No person shall purposely take, operate, or keep any motor vehicle without the consent of its owner.” A violation was punishable as a misdemeanor. Section 4549.04 was repealed effective January 1, 1974. BROWN v. OHIO 163 161 Opinion of the Court the theft of the car “on or about the 29th day of November 1973,” in violation of Ohio Rev. Code Ann. § 4549.04 (A) (1973, App. 342),2 and the second charging joyriding on the same date in violation of § 4549.04 (D). A bill of particulars filed by the prosecuting attorney specified that “on or about the 29th day of November, 1973, . . . Nathaniel Brown unlawfully did steal a Chevrolet motor vehicle, and take, drive or operate such vehicle without the consent of the owner, Gloria Ingram . . . .” App. 10. Brown objected to both counts of the indictment on the basis of former jeopardy. On March 18, 1974, at a pretrial hearing in the Cuyahoga County Court of Common Pleas, Brown pleaded guilty to the auto theft charge on the understanding that the court would consider his claim of former jeopardy on a motion to withdraw the plea.3 Upon submission of the motion, the court overruled Brown’s double jeopardy objections. The court sentenced Brown to six months in jail but suspended the sentence and placed Brown on probation for one year. The Ohio Court of Appeals affirmed. It held that under Ohio law the misdemeanor of joyriding was included in the felony of auto theft: “Every element of the crime of operating a motor vehicle without the consent of the owner is also an element of the crime of auto theft. ‘The difference between the crime of stealing a motor vehicle, and operating a motor vehicle without the consent of the owner is that conviction for stealing requires proof of an intent on the part of the thief to permanently deprive the owner of possession.’ . . . [T]he crime of operating a motor vehicle without the 2 Section 4549.04(A) provided: “No person shall steal any motor vehicle.” A violation was punishable as a felony. 3 The joyriding count of the indictment was nol pressed. 164 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. consent of the owner is a lesser included offense of auto theft... y Id., at 22. Although this analysis led the court to agree with Brown that “for purposes of double jeopardy the two prosecutions involve the same statutory offense,” id., at 23,4 it nonetheless held the second prosecution permissible: “The two prosecutions are based on two separate acts of the appellant, one which occurred on November 29th and one which occurred on December 8th. Since appellant has not shown that both prosecutions are based on the same act or transaction, the second prosecution is not barred by the double jeopardy clause.” Ibid. The Ohio Supreme Court denied leave to appeal. We granted certiorari to consider Brown’s double jeopardy claim, 429 U. S. 893 (1976), and we now reverse. II The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth, provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” It has long been understood that separate statutory crimes need not be identical—either in constituent elements or in actual proof—in order to be the same within the meaning of the constitutional prohibition. 1 J. Bishop, New Criminal Law § 1051 (8th ed. 1892); Comment, Twice in Jeopardy, 75 Yale L. J. 262, 268-269 (1965). The principal question in this case is whether auto theft and joyriding, a greater and lesser included offense under Ohio law, constitute the “same offence” under the Double Jeopardy Clause. 4 As the Ohio Court of Appeals recognized, the Wickliffe and Cuyahoga County prosecutions must be viewed as the acts of a single sovereign under the Double Jeopardy Clause. Waller v. Florida, 397 U. S. 387 (1970). BROWN v. OHIO 165 161 Opinion of the Court Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, see United States v. Wilson, 420 U. S. 332, 339-340 (1975), the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.5 The Double Jeopardy Clause “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U. S. 711, 717 (1969) (footnotes omitted). Where consecutive sentences are imposed at a single criminal trial, 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. See Gore v. United States, 357 U. S. 386 (1958); Bell n. United States, 349 U. S. 81 (1955); Ex parte Lange, 18 Wall. 163 (1874). Where successive prosecutions are at stake, the guarantee serves “a constitutional policy of finality for the defendant’s benefit.” United States v. Jorn, 400 U. S. 470, 479 (1971) (plurality opinion). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, see Ashe v. Swenson, 397 U. S. 5 We are not concerned here with the double jeopardy questions that may arise when a defendant is retried on the same charge after a mistrial, e. g., United States v. Jorn, 400 U. S. 470 (1971), or dismissal of the indictment or information, e. g., United States v. Jenkins, 420 U. S. 358 (1975), or after a conviction is reversed on appeal, e. g., United States v. Ball, 163 U. S. 662 (1896). Nor are we concerned with the permissibility of separate prosecutions on closely related criminal charges when the accused opposes a consolidated trial, e. g., Jeffers n. United States, ante, p. 137. 166 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. 436 (1970); cf. United States n. Martin Linen Supply Co., 430 U. S. 564 (1977), and from attempts to secure additional punishment after a prior conviction and sentence, see Green v. • United States, 355 U. S. 184, 187-188 (1957); cf. North Carolina v. Pearce, supra. The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger n. United States, 284 U. S. 299, 304 (1932): “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not...” This test emphasizes the elements of the two crimes. “If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. . . .” lannelli v. United States, 420 U. S. 770, 785 n. 17 (1975). If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nielsen, 131 U. S. 176, 187—188 (1889); cf. Gavieres n. United States, 220 U. S. 338 (1911). Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings. Unless “each statute requires proof of an additional fact which the other does not,” Morey v. Commonwealth, 108 Mass. 433, 434 (1871), the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment,6 6 The 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 con- BROWN v. OHIO 167 161 Opinion of the Court We are mindful that the Ohio courts “have the final authority to interpret . . . that State’s legislation.” Garner v. Louisiana, 368 U. S. 157, 169 (1961). Here the Ohio Court of Appeals has authoritatively defined the elements of the two Ohio crimes: Joyriding consists of taking or operating a vehicle without the owner’s consent, and auto theft consists of joyriding with the intent permanently to deprive the owner of possession. App. 22. Joyriding is the lesser included offense. The prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft; secutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first. Thus in Ashe v. Swenson, 397 U. S. 436 (1970), where an acquittal on a charge of robbing one of several participants in a poker game established that the accused was not present at the robbery, the Court held that principles of collateral estoppel embodied in the Double Jeopardy Clause barred prosecutions of the accused for robbing the other victims. And in 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 2^-year period barred a subsequent prosecution for adultery with one of them on the day following the end of that period. In both cases, strict application of the Blockburger test would have permitted imposition of consecutive sentences had the charges been consolidated in a single proceeding. In Ashe, separate convictions of the robbery of each victim would have required proof in each case that a different individual had been robbed. See Ebeling v. Morgan, 237 U. S. 625 (1915). In Nielsen, conviction 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 in both cases held the separate offenses to be the “same” for purposes of protecting the accused from having to “ ‘run the gantlet’ a second time.” Ashe, supra, at 446, quoting from Green v. United States, 355 U. S. 184,190 (1957). Because we conclude today that a lesser included and a greater offense are the same under Blockburger, we need not decide whether the repetition of proof required by the successive prosecutions against Brown would otherwise entitle him to the additional protection offered by Ashe and Nielsen. 168 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. the prosecutor who has established auto theft necessarily has established joyriding as well. Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by that court, constitute “the same statutory offense” within the meaning of the Double Jeopardy Clause. App. 23. For it is clearly not the case that “each [statute] requires proof of a fact which the other does not.” 284 U. S., at 304. As is invariably true of a greater and lesser included offense, the lesser offense—joyriding—requires no proof beyond that which is required for conviction of the greater—auto theft. The greater offense is therefore by definition the “same” for purposes of double jeopardy as any lesser offense included in it. This conclusion merely restates what has been this Court’s understanding of the Double Jeopardy Clause at least since In re Nielsen was decided in 1889. In that case the Court endorsed the rule that “where ... 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. Although in this formulation the conviction of the greater precedes the conviction of the lesser, the opinion makes it clear that the sequence is immaterial. Thus, the Court treated the formulation as just one application of the rule that two offenses are the same unless each requires proof that the other does not. Id., at 188,190, citing Morey v. Commonwealth, supra, at 434. And as another application of the same rule, the Court cited, 131 U. 8., at 190, with approval the decision of State v. Cooper, 13 N. J. L. 361 (1833), where the New Jersey Supreme Court held that a conviction for arson barred a subsequent felony-murder indictment based on the death of a man killed in the fire. Cf. Waller v. Florida, 397 U. S. BROWN v. OHIO 169 161 Opinion of the Court 387, 390 (1970). Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.7 Ill After correctly holding that joyriding and auto theft are the same offense under the Double Jeopardy Clause, the Ohio Court of Appeals nevertheless concluded that Nathaniel Brown could be convicted of both crimes because the charges against him focused on different parts of his 9-day joyride. App. 23. We hold a different view. The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units. Cf. Braverman n. United States, 317 U. S. 49, 52 (1942). The applicable Ohio statutes, as written and as construed in this case, make the theft and operation of a single car a single offense. Although the Wickliffe and East Cleveland authorities may have had different perspectives on Brown’s offense, it was still only one offense under Ohio law.8 Accordingly, the specification of 7 An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. See Diaz v. United States, 223 U. S. 442, 448-449 (1912); Ashe v. Swenson, supra, at 453 n. 7 (Brennan, J., concurring). 8 We would have a different case if the Ohio Legislature had provided that joyriding is a separate offense for each day in which a motor vehicle is operated without the owner’s consent. Cf. Blockburger v. United States, 284 U. S., at 302. We also would have a different case if in sustaining Brown’s second conviction the Ohio courts had construed the joyriding statute to have that effect. We then would have to decide whether the state courts’ construction, applied retroactively in this case, was such “an unforeseeable judicial enlargement of a criminal statute” as to violate due process. See Bouie v. City of Columbia, 378 U. S. 347, 353 (1964); cf. In re Snow, 120 U. S. 274, 283-286 (1887); Crepps n. Durden, 2 Cowper 640 (K. B. 1777). 170 OCTOBER TERM, 1976 Blackmun, J., dissenting 432 U. S. different dates in the two charges on which Brown was convicted cannot alter the fact that he was placed twice in jeopardy for the same offense in violation of the Fifth and Fourteenth Amendments. Reversed. Mr. Justice Brennan, with whom Mr. Justice Marshall joins, concurring. I join the Court’s opinion, but in any event would reverse on the ground, not addressed by the Court, that the State did not prosecute petitioner in a single proceeding. I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth Amendment, requires the prosecution in one proceeding, except in extremely limited circumstances not present here, of “all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U. S. 436, 453-454, and n. 7 (1970) (Brennan, J., concurring). See Thompson v. Oklahoma, 429 U. S. 1053 (1977) (Brennan, J., dissenting from denial of certiorari), and cases collected therein. In my view the Court’s suggestion, ante, at 169 n. 8, that the Ohio Legislature might be free to make joyriding a separate and distinct offense for each day a motor vehicle is operated without the owner’s consent would not affect the applicability of the single-transaction test. Though under some circumstances a legislature may divide a continuing course of conduct into discrete offenses, I would nevertheless hold that all charges growing out of conduct constituting a “single criminal act, occurrence, episode, or transaction” must be tried in a single proceeding. Mr. Justice Blackmun, with whom The Chief Justice and Mr. Justice Rehnquist join, dissenting. The Court reverses the judgment of the Ohio Court of Appeals because the Court does not wish this case to slip by BROWN v. OHIO 171 161 Blackmun, J., dissenting without taking advantage of the opportunity to pronounce some acceptable but hitherto unenunciated (at this level) double jeopardy law. I dissent because, in my view, this case does not deserve that treatment. I, of course, have no quarrel with the Court’s general double jeopardy analysis. See Jeffers v. United States, ante, p. 137. I am unable to ignore as easily as the Court does, however, the specific finding of the Ohio Court of Appeals that the two prosecutions at issue here were based on petitioner’s separate and distinct acts committed, respectively, on November 29 and on December 8,1973. Petitioner was convicted of operating a motor vehicle on December 8 without the owner’s consent. He subsequently was convicted of taking and operating the same motor vehicle on November 29 without the owner’s consent and with the intent permanently to deprive the owner of possession. It is possible, of course, that at some point the two acts would be so closely connected in time that the Double Jeopardy Clause would require treating them as one offense. This surely would be so with respect to the theft and any simultaneous unlawful operation. Furthermore, as a matter of statutory construction, the allowable unit of prosecution may be a course of conduct rather than the separate segments of such a course. See. e. g., United States v. Universal C. I. T. Credit Corp., 344 U. S. 218 (1952). I feel that neither of these approaches justifies the Court’s result in the present case. Nine days elapsed between the two incidents that are the basis of petitioner’s convictions. During that time the automobile moved from East Cleveland to Wickliffe. It strains credulity to believe that petitioner was operating the vehicle every minute of those nine days. A time must have come when he stopped driving, the car. When he operated it again nine days later in a different community, the Ohio courts could properly find, consistently with the Double Jeopardy Clause, that the acts were sufficiently distinct to justify a 172 OCTOBER TERM, 1976 Blackmun, J., dissenting 432 U. S. second prosecution. Only if the Clause requires the Ohio courts to hold that the allowable unit of prosecution is the course of conduct would the Court’s result here be correct. On the facts of this case, no such requirement should be inferred, and the state courts should be free to construe Ohio’s statute as they did. This Court, I fear, gives undeserved emphasis, ante, at 163-164, to the Ohio Court of Appeals’ passing observation that the Ohio misdemeanor of joyriding is an element of the Ohio felony of auto theft. That observation was merely a preliminary statement, indicating that the theft and any simultaneous unlawful operation were one and the same. But the Ohio Court of Appeals then went on flatly to hold that such simultaneity was not present here. Thus, it seems to me, the Ohio courts did precisely what this Court, ante, at 169 n. 8, professes to say they did not do. In my view, we should not so willingly circumvent an authoritative Ohio holding as to Ohio law. I would affirm the judgment of the Court of Appeals. MANDEL v. BRADLEY 173 Per Curiam MANDEL, GOVERNOR OF MARYLAND, et al. v. BRADLEY et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND No. 76-128. Argued February 23, 1977—Decided June 16, 1977 In appellees’ action challenging the constitutionality of a Maryland statute requiring an independent candidate for statewide or federal office, in order to qualify for a position on the general election ballot, to file 70 days before the date of party primaries, nominating petitions signed by at least 3% of the State’s registered voters, the three-judge District Court was not warranted in holding, on the basis of this Court’s summary affirmance in Tucker v. Solera, 424 U. S. 959, that the Maryland statute’s early filing deadline was an unconstitutional burden on an independent candidate’s access to the ballot. Rather than relying on Solera as controlling precedent, the District Court should have conducted an independent examination of the merits under the constitutional standards set forth in Storer v. Brown, 415 U. S. 724, 742, for determining the extent of the burden imposed on independent candidates. Vacated and remanded. George A. Nilson, Deputy Attorney General of Maryland, argued the cause for appellants. With him on the briefs were Francis B. Burch, Attorney General, and Robert A. Zarnoch, Assistant Attorney General. Jon T. Brown argued the cause and filed a brief for appellees. Per Curiam. Candidates for statewide or federal office in Maryland may obtain a place on the general election ballot by filing with the State Administrative Board of Election Laws a certificate of candidacy 70 days before a political party’s primary election and then by winning the primary. Alternatively, under provisions of the Maryland Election Code, a candidate 174 OCTOBER TERM, 1976 Per Curiam 432 U. S. for statewide or federal office may qualify for a position on the general election ballot as an independent by filing, 70 days before the date on which party primaries are held, nominating petitions signed by at least 3% of the State’s registered voters and a certificate of candidacy. Md. Elec. Code Ann. § 7-1 (1976 and Supp. 1976). In Presidential election years this filing date occurs approximately 230 to 240 days before the general election. In other years it occurs about 120 days before the general election. §§ 1-1 (a)(8), 5-2, 7-1. Appellee Bruce Bradley decided in the spring of 1975 to run as an independent candidate for the United States Senate in 1976, a Presidential election year. Starting in the fall of 1975 Bradley collected signatures on nominating petitions. The requisite number was 51,155. On March 8, 1976, the deadline for filing, Bradley submitted 53,239 signatures and filed a certificate of candidacy for the Senate seat. However, on April 15, 1976, the State Administrative Board of Election Laws determined that only 42,049 of the signatures were valid and denied him a place on the ballot. Two weeks later, Bradley and the other appellees—petition signers and other voter supporters of Bradley—filed the instant suit, alleging that the procedures mandated by § 7-1 of the Md. Elec. Code (1976 and Supp. 1976) constitute an unconstitutional infringement of their associational and voting rights under the First and Fourteenth Amendments. They complained that Maryland’s early filing date made it more difficult for Bradley to obtain the requisite number of signatures than for a party member to win a primary and sought, inter alia, an injunction against future enforcement of the offending provision of Maryland’s election procedures. A three-judge District Court agreed with the appellees that the early filing deadline of § 7-1 (i) (Supp. 1976) was an unconstitutional burden on an independent candidate’s access to the ballot and ordered the appellants to give Bradley 53 MANDEL v. BRADLEY 175 173 Per Curiam days after the party primaries to gather the requisite number of signatures.1 The court based its holding on our summary affirmance in Tucker v. Salem, 424 U. S. 959 (1976), aff’g 399 F. Supp. 1258 (ED Pa. 1975). In Salem, a three-judge court declared unconstitutional a Pennsylvania law setting the deadline for an independent candidate to gather signatures to obtain a place on the ballot 244 days before the general election in a Presidential election year. Under the Pennsylvania law, independents had to submit signatures of only 2% of the largest vote cast for any candidate in the preceding statewide general election, but they had to gather the required signatures within a 21-day period prior to the filing deadline. In declaring the Pennsylvania statute invalid, the three-judge court relied, not on the short period for signature gathering (which it thought was valid under Storer v. Brown, 415 U. S. 724 (1974)), but solely on the early deadline for submission of the necessary signatures. The court. found that the deadline substantially burdened ballot access of independents by requiring them to obtain the necessary signatures at a time when the election issues were undefined and the voters were apathetic. It also rejected various countervailing state interests that had been urged. This Court summarily affirmed the judgment of the three-judge court in Salem. The three-judge court in this case viewed this Court’s summary affirmance in Salem as controlling precedent for the proposition that early filing dates, such as that employed in Maryland, are unconstitutionally burdensome on the independent candidate’s access to the ballot, and therefore decided in favor of the appellees. We noted probable jurisdiction, 429 U. S. 813 (1976). 1 Bradley successfully gathered the requisite number of signatures, obtained a place on the ballot, ran, and lost. This case is nonetheless not moot. Storer v. Brown, 415 U. S. 724, 737 n. 8 (1974). 176 OCTOBER TERM, 1976 Per Curiam 432 U. S. The District Court erred in believing that our affirmance in Salera adopted the reasoning as well as the judgment of the three-judge court in that case and thus required the District Court to conclude that the early filing date is impermissibly burdensome. Hicks v. Miranda, 422 U. S. 332 (1975), held that lower courts are bound by summary actions on the merits by this Court, but we noted that “[ascertaining the reach and content of summary actions may itself present issues of real substance.” Id., at 345 n. 14. Because a summary affirmance is an affirmance of the judgment only, the rationale of the affirmance may not be gleaned solely from the opinion below. “When we summarily affirm, without opinion, ... we affirm the judgment but not necessarily the reasoning by which it was reached. An unexplicated summary affirmance settles the issues for the parties, and is not to be read as a renunciation by this Court of doctrines previously announced in our opinions after full argument.” (Footnote omitted.) Fusari n. Steinberg, 419 U. S. 379, 391-392 (1975) (Burger, C. J., concurring). Summary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions. After Salera, for example, other courts were not free to conclude that the Pennsylvania provision invalidated was nevertheless constitutional. Summary actions, however, including Salera, should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved. Here, the District Court ruled that legally ‘‘Salera decides the issue before us, and as the latest expression of the Supreme MANDEL v. BRADLEY 177 173 Per Curiam Court, we are bound to follow it.” App. to Jurisdictional Statement 12a. The precedential significance of the summary-action in Salera, however, is to be assessed in the light of all of the facts in that case; and it is immediately apparent that those facts are very different from the facts of this case. There, in addition to the early filing date, signatures had to be gathered within a 21-day period. This limited time enormously increased the difficulty of obtaining the number of signatures necessary to qualify as an independent candidate.2 This combination of an early filing deadline and the 21-day limitation on signature gathering is sufficient to distinguish Salera from the case now before us, where there is no limitation on the period within which such signatures must be gathered. In short, Salera did not mandate the result reached by the District Court in this case. Because of its preoccupation with Salera, the District Court failed to undertake an independent examination of the merits. The appropriate inquiry was set out in Storer v. Brown, supra, at 742: “[I]n the context of [Maryland] politics, could a reasonably diligent independent candidate be expected to satisfy the [ballot access] requirements, or will it be only rarely that the unafiiliated candidate will succeed in getting on the ballot? Past experience will be a helpful, if not always an unerring, guide: it will be one thing if independent candidates have qualified with some regularity and quite a different matter if they have not. We note here that the State mentions only one instance of 2 In Storer v. Brown, supra, as the District Court noted, the 24-day limitation was not by itself enough to invalidate the statute, but we clearly recognized that the limitation, when combined with other provisions of the election law, might invalidate the statutory scheme. 415 U. S., at 742-743. The District Court in this case erred in reading Storer n. Brown as holding irrelevant the limited period of time in which signatures must be gathered. 178 OCTOBER TERM, 1976 Per Curiam 432 U. S. an independent candidate’s qualifying . . . but disclaims having made any comprehensive survey of the official records that would perhaps reveal the truth of the matter.” In Storer itself, because the District Court had not applied these standards in adjudicating the constitutional issues before it, we remanded the case “to permit further findings with respect to the extent of the burden imposed on independent candidates.” 415 U. S., at 740. There is no reason here for doing any less. The District Court did not sift through the conflicting evidence and make findings of fact as to the difficulty of obtaining signatures in time to meet the early filing deadline. It did not consider the extent to which other features of the Maryland electoral system—such as the unlimited period during which signatures may be collected, or the unrestricted pool of potential petition signers—moderate whatever burden the deadline creates. See Developments in the Law— Elections, 88 Harv. L. Rev. 1111,1142-1143 (1975). It did not analyze what the past experience of independent candidates for statewide office might indicate about the burden imposed on those seeking ballot access. Instead, the District Court’s assumption that the filing deadline by itself was per se illegal—as well as the expedited basis upon which the case necessarily was decided3—resulted in a failure to apply the constitutional standards announced in Storer to the statutory provisions here at issue.4 3 The appellees filed this action on April 30, 1976. The three-judge court was convened and heard argument on May 12, and it announced its decision on May 17. 4 There is evidence in the record that in both 1972 and 1976—the only years in which the early deadline was effective—no candidate for statewide office succeeded in qualifying for the ballot. There is also evidence tending to substantiate the appellees’ contention that there existed a variety of obstacles in the way of obtaining support for an independent candidate far in advance of the general election. Without MANDEL v. BRADLEY 179 173 Brennan, J., concurring The application of those standards to the evidence in the record is, in the first instance, a task for the District Court. We therefore vacate the judgment, and remand the case for further proceedings consistent with this opinion.5 It is so ordered. Mr. Justice Rehnquist took no part in the consideration or decision of this case. Mr. Justice Brennan, concurring. I join the opinion of the Court but write to emphasize the Court’s treatment of the rule announced in Hicks V. Miranda, 422 U. S. 332 (1975). In a dissent from the denial of certiorari in Colorado Springs Amusements, Ltd. v. Rizzo, 428 U. S. 913 (1976), I stated why, in my view, the federal and state courts should give “appropriate, but not necessarily conclusive, weight to our summary dispositions,” id., at 923, rather than be required, as the Court held in Hicks, “to treat our summary dispositions of appeals as conclusive precedents regarding constitutional challenges to like state statutes or ordinances.” 428 U. S., at 913. The Court by not relying on our summary affirmance in Tucker n. Salera, 424 U. S. 959 (1976), and Auerbach n. Mandel, 409 U. S. 808 (1972), effectively embraces that view, and vividly exposes the ambiguity inherent in summary dispositions and the nature of the detailed analysis that is intima,ting any ultimate view on the merits of the appellees’ challenge, we have no doubt that it has sufficient substance to warrant a remand for further proceedings. 5 The District Court will be free on remand to consider the appellees’ argument that the “technical and administrative requirements of the petition signing process” are an unconstitutional burden on ballot access—a question never reached in view of the decision for the appellees and Bradley’s ultimate success in qualifying for the ballot. 180 OCTOBER TERM, 1976 Stevens, J., dissenting 432 U. S. essential before a decision can be made whether it is appropriate to accord a particular summary disposition precedential effect. After today, judges of the state and federal systems are on notice that, before deciding a case on the authority of a summary disposition by this Court in another case, they must (a) examine the jurisdictional statement in the earlier case to be certain that the constitutional questions presented were the same and, if they were, (b) determine that the judgment in fact rests upon decision of those questions and not even arguably upon some alternative nonconstitutional ground. The judgment should not be interpreted as deciding the constitutional questions unless no other construction of the disposition is plausible. In other words, after today, “appropriate, but not necessarily conclusive, weight” is to be given this Court’s summary dispositions. Mr. Justice White, with whom Mr. Justice Powell joins, concurring. Although there are many indications in the District Court’s opinion that it not only considered Tucker v. Salera, 424 U. S. 959 (1976), controlling, but also independently invalidated the Maryland law on grounds similar to or the same as those employed in Salera—in which event, a remand would be inappropriate—it is fairly arguable that the District Court should unmistakably record its opinion as to the validity of the Maryland law. A number of my Brethren are of this view, and I defer to their judgment. Mr. Justice Stevens, dissenting. In my judgment the Maryland statute unfairly discriminates against independent candidates in one respect. It requires the independent to make his decision to become a candidate much sooner than a member of a national political party. A party member is merely required to file a certificate of candidacy 70 days before the primary election. That pro MANDEL v. BRADLEY 181 173 Stevens, J., dissenting cedure is so simple that he may postpone his decision until that very day and still satisfy all legal requirements for candidacy. In contrast, the independent must complete the signature gathering process by the 70th day preceding the primary election. Since the task of obtaining the signatures of 3% of the registered voters inevitably will require a significant amount of time, the independent must make his decision to run well in advance of the filing deadline. In my opinion, the State has not put forward any justification for this disparate treatment. Moreover, it is potentially a matter of great significance. The decision to become a candidate may be prompted by a sudden, unanticipated event of great national or local importance. If such an event should occur on the 71st day before a primary, national party members could make a timely decision to run but independents could not. The statute should be evenhanded in its impact on the timing of the most important decision any candidate must make. The burdens that an independent must shoulder are heavy enough without requiring him to make that decision before his most formidable opponents must do so.* *In Jenness v. Fortson, 403 U. S. 431, this Court upheld the Georgia filing procedures applicable to independent candidates seeking a place on the general election ballot. These procedures required the independent candidate to collect signatures of at least 5% of the number of registered voters at the last general election for the office in question. Id., at 432. The independent candidate had 180 days in which to accomplish this task and had to file the completed petitions by the same deadline which a party candidate had to meet. Id., at 433-434. Thus, the procedures for filing by independents under the Georgia statute are similar to those aspects of the Maryland procedures in issue here which I find place such a handicap on independent candidates. However, the question I find decisive in this case was neither raised nor decided by the Court in Jenness, see id., at 434. Thus, that decision is not controlling on this point, KVOS, Inc. v. Associated Press, 299 U. S. 269, 279, quoting Webster v. Fall, 266 U. S. 507, 511 (“ 'Questions which merely lurk in the 182 OCTOBER TERM, 1976 Stevens, J., dissenting 432U.S. On the basis of the record developed in the District Court, and the full argument on the merits in this Court, I would therefore affirm the judgment. record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents’ ”). For the reasons stated in Edelman n. Jordan, 415 U. S. 651, 670-671, I do not regard the summary affirmance in Auerbach v. Mandel, 409 U. S. 808, as controlling. JONES v. HILDEBRANT 183 Per Curiam JONES v. HILDEBRANT et al. CERTIORARI TO THE SUPREME COURT OF COLORADO No. 76-5416. Argued April 26, 1977—Decided June 16, 1977 Where petitioner’s counsel informed this Court at oral argument that petitioner’s sole claim of constitutional deprivation resulting from her minor son’s being shot and killed by respondent police officer was one based on her personal liberty and not one of pecuniary loss such as would be covered by Colorado’s wrongful-death statute, but that contention was neither alleged in her complaint (which included claims based on the state wrongful-death statute and a claim under 42 U. S. C. §1983), presented in her petition for certiorari, nor fairly subsumed in the question that was presented as to whether the wrongful-death statute’s limitation on damages controlled in a § 1983 action, the writ of certiorari is dismissed as imprevidently granted. Certiorari dismissed. Reported below: 191 Colo. 1, 550 P. 2d 339. David K. Rees argued the cause for petitioner. With him on the briefs was Walter L. Gerash. Wesley H. Doan argued the cause for respondents. With him on the brief was Robert E. Goodwin* Per Curiam. Petitioner is the mother of a 15-year-old boy who was shot and killed by respondent Hildebrant, while respondent was acting in his capacity as a Denver police officer. Petitioner brought suit in her own behalf in state court. Respondent defended on the ground that he shot petitioner’s son as a fleeing felon using no more force than was reasonably necessary. The amended complaint asserted three claims for relief: battery; negligence; and intentional deprivation of federal con * Robert A. Murphy, Richard S. Kohn, Norman J. Chachkin, William E. Caldwell, Vilma S. Martinez, Morris J. Baller, and Nathaniel R. Jones filed a brief for the Lawyers’ Committee for Civil Rights Under Law et al. as amici curiae urging reversal. 184 OCTOBER TERM, 1976 Per Curiam 432 U. S. stitutional rights. Although not specifically pleaded, the first two claims were admittedly based on the Colorado wrongful-death statute, Colo. Rev. Stat. Ann. § 13-21-202 (1973),1 and the third, on 42 U. S. C. § 1983. While petitioner alleged damages of $1,500,000, she stipulated to a reduction of her prayer for relief with respect to the first two claims, since the Colorado wrongful-death statute admittedly limited her maximum recovery to $45,000, Colo. Rev. Stat. Ann. § 13-21-203 (1973). The trial court also ruled that petitioner’s § 1983 claim was “merged” into her first claim and, accordingly, dismissed her § 1983 claim. The remaining claims went to the jury, which returned a verdict for $l,500.2 On petitioner’s appeal, the Supreme Court of Colorado affirmed. 191 Colo. 1, 550 P. 2d 339 (1976). Her petition for certiorari presented a single question for review here: “Where the black mother of a 15-year-old child who was intentionally shot and killed by a white policeman acting under the color of state law brings a suit in state 1 Section 13-21-202: “When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured.” 2 The jury had been instructed that damages in a wrongful-death action were limited to net pecuniary loss, see Herbertson v. Russell, 150 Colo. 110, 371 P. 2d 422 (1962). This loss is the financial loss sustained by petitioner as a result of the death of her son, and would include the value of any services that he might have rendered and earnings he might have made while a minor, as well as any support he might have provided after becoming an adult, less the expenses petitioner would have incurred in raising him. The award apparently included, in this case, funeral expenses. The Supreme Court of Colorado upheld the instructions and the award, 191 Colo., at 3 n. 1, 550 P. 2d, at 341 n. 1. These issues, of course, are not before us except as they might bear on petitioner’s § 1983 claim. JONES v. HILDEBRANT 185 183 Per Curiam court pursuant to 42 U. S. C. § 1983, what is the measure of damages? Particularly, can the state measure of damages cancel and displace an action brought pursuant to 42 U. S. C. § 1983?” We granted certiorari to consider what was thus explicitly presented as a question of whether a State’s limitation on damages in a wrongful-death statute would control in an action brought pursuant to § 1983. 429 U. S. 1061 (1977). The majority opinion in the Supreme Court of Colorado proceeds on the assumption that if the Colorado wrongful-death statute applied to petitioner’s claim, her recovery would be limited to $45,000. It held that this limitation did apply even to the one count of petitioner’s complaint based on 42 U. S. C. § 1983. A necessary assumption for this position would seem to be that petitioner was suing to recover damages for injuries under § 1983 which were the same injuries as are covered by the state wrongful-death action. The question presented in the petition for certiorari is at the very least susceptible of that interpretation. But at oral argument, we were advised by counsel for petitioner that her sole claim of constitutional deprivation was not one of pecuniary loss resulting from her son's wrongful death, such as would be covered by the wrongful-death statute, but one based on her personal liberty. Her claim was described at oral argument as a constitutional right to raise her child without interference from the State; it has nothing to do with an action for “wrongful death” as defined by the state law. Tr. of Oral Arg. 4r-5; see also id., at 8-13. An action for wrongful death, under Colorado law, is an action which may be brought by certain named survivors of a decedent who sustain a direct pecuniary loss upon the death of the decedent. It is “classified as a property tort action and cannot be classified as a tort action Tor injuries done to the person,’ ” Fish v. Liley, 120 Colo. 156, 163, 208 P. 2d 930, 186 OCTOBER TERM, 1976 Per Curiam 432U.S. 933 (1949).3 Petitioner, however, articulates here a quite different constitutional claim which does not fit into the Colorado wrongful-death mold. While petitioner’s constitutional claim is based on an alleged deprivation of her own rights, and not on deprivation of those of her son’s,4 the asserted deprivation is not for any “property loss,” but, rather, for the right of a child’s mother to raise the child as she sees fit.5 This claim was not set forth in the complaint,6 was not even hinted at in petitioner’s briefs to the Supreme Court of Colorado, and is only casually referred to in the opinion of that court. The majority opinion held that insofar as a claim for actual pecuniary loss was a property right conferred upon petitioner by the State’s wrongful-death statute, the damages recoverable under it were limited by the terms of 3 See n. 2, supra. 4 Petitioner explicitly acknowledged at oral argument that she had not brought a claim for vindication of her son’s rights; in essence, an action on his behalf. See Tr. of Oral Arg. 6, 17-18, 20. This is clear, as well, from the manner in which the complaint is drafted, as well as the parties’ perception that the closest available state statute is the Colorado wrongful-death statute, rather than the Colorado survivorship statute, Colo. Rev. Stat. Ann. § 13-20-101 (1973). See Tr. of Oral Arg. 17-18, 20. See generally C. McCormick, Law of Damages 336 (1935); 2 F. Harper & F. James, The Law of Torts §§24.1-24.3 (1956). Petitioner sued individually as the mother of the decedent and not as the administratrix of the decedent’s estate. 5 Petitioner apparently relies on Meyer v. Nebraska, 262 U. S. 390 (1923), and its progeny as the basis for her asserted constitutional deprivation. As articulated at oral argument, petitioner’s contention appears to be: “[T]his Court has held on several occasions that a parent has a constitutional right to raise their child, and that that child cannot be taken from them without the due process of law.” Tr. of Oral Arg. 4-5. 6 Her complaint alleged that she was deprived of “a. Her child’s right to life; “b. The right to her child’s freedom from physical abuse, coercion, intimidation, and physical death; and “c. Her right to her children’s equal protection of the laws.” App. 3. Nowhere does she allege her asserted constitutional right to raise her child. JONES v. HILDEBRANT 187 183 Per Curiam that statute. The majority opinion also refers in passing to a constitutional liberty right in petitioner herself, but its principal thrust is that petitioner’s liberty claims, as presented to that court, are “really those of her son,” and not claims personal to her.7 This discussion, which occurs subsequent to that portion of the opinion in which the Supreme Court of Colorado concluded that state wrongful-death remedies were incorporated into § 1983 to vindicate civil rights violations “that result in death,” does not intimate that similar limitations would exist in a § 1983 action where the alleged deprivation was that of liberty to a living plaintiff suing for a wrong done to her. We do not know how the Supreme Court of Colorado would have ruled on the damages limitation question had it found the § 1983 claim to be that of the deprivation of the mother’s right to raise the child. We have here then a shift in the posture of the case such that the question presented in the petition for certiorari is all but mooted by petitioner’s oral argument. The question of whether a limitation on recovery of damages imposed by a state wrongful-death statute may be applied where death is said to have resulted from a violation of 42 U. S. C. § 1983 would appear to make sense only where the § 1983 damages claim is based upon the same injuries.8 This is the assump 7 The court was referring to the assertions in the complaint, quoted in n. 6, supra. It then raised, and rejected, another argument in the following passage: “Furthermore, the state did not directly attempt to restrict her own personal decisions relating to procreation, contraception, and child-rearing which are involved in Griswold v. Connecticut, 381 U. S. 479 . . . (1965), and Meyer v. Nebraska, 262 U. S. 390 .. . (1923). Although the death of a family member represents a loss to her, we, nonetheless, are of the opinion that § 1983 was not designed to compensate for these collateral losses resulting from injuries to others.” 191 Colo., at 9, 550 P. 2d, at 345. 8 Petitioner rejects the view that the claims are based on the same injuries: “The key is that the remedy ... is for the deprivation of 188 OCTOBER TERM, 1976 Per Curiam 432 U. S. tion on which the Supreme Court of Colorado proceeded in discussing whether the § 1983 claim “merged” in the wrongful-death claim. The court does not intimate, or decide, that a § 1983 claim based on an alleged deprivation such as petitioner asserts here—if the claim were otherwise cognizable—would require remedial assistance from the state wrongful-death statute or that recovery on such a claim would be limited by that statute. Petitioner’s question presented assumes that the underlying constitutional violation necessary to support a § 1983 claim on her behalf is undisputed, and that the only question upon which petitioner takes issue with the majority of the Supreme Court of Colorado is the limitation on the amount of recovery. But it would seem possible, if not probable, that if petitioner had presented to the Supreme Court of Colorado the same claim she presented here in oral argument, that court’s opinion would not have turned on the application of the state wrongful-death statute as a limitation on recovery of damages, since the underlying § 1983 claim—deprivation of a right to raise children—is not at all the same underlying claim for which the wrongful-death action provides recompense. Whatever the merits of her constitutional liberty claim in her own right, a question on which we do not intimate an opinion, it would not seem logically to be subject to a damages limitation contained in the statute permitting survivors to recover for wrongs done to a property interest of theirs. In presenting to this Court in her petition for certiorari solely a damages issue of this nature, petitioner has wholly preter-mitted the underlying question of whether she has been deprived of any constitutional liberty interest as a result of respondent’s shooting of her son. In sum, the damages question which petitioner presents in her petition for certiorari is only the tip of the iceberg. civil rights—not for wrongful death.” Reply Brief for Plaintiff-Appellant in the Supreme Court of Colorado 7. JONES v. HILDEBRANT 189 183 White, J., dissenting The question of whether she was deprived of a constitutional liberty interest of her own was neither alleged in her complaint in the Colorado trial court, presented in the petition for certiorari in this Court, nor fairly subsumed in the question that was presented. See this Court’s Rule 23 (l)(c). The writ of certiorari is therefore dismissed as improvidently granted. Belcher v. Stengel, 429 U. S. 118 (1976). It is so ordered. Mr. Justice White, with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting. Physical abuses by police under color of state law may in some circumstances constitute a constitutional deprivation giving rise to criminal liability under the civil rights laws, even if the abuses result in the death of the victim, Screws v. United States, 325 U. S. 91 (1945); and if the victim survives such abuses, it is now clear that he may recover damages under 42 U. S. C. § 1983 for the injuries that he has sustained. See Monroe v. Pape, 365 U. S. 167 (1961); Johnson v. Glick, 481 F. 2d 1028 (CA2), cert, denied sub nom. John v. Johnson, 414 U. S. 1033 (1973); Howell v. Cataldi, 464 F. 2d 272 (CA3 1972); Tolbert v. Bragan, 451 F. 2d 1020 (CA5 1971) ; Jenkins v. Averett, 424 F. 2d 1228 (CA4 1970); Collum v. Butler, 421 F. 2d 1257 (CA7 1970); Allison v. California Adult Authority, 419 F. 2d 822 (CA9 1969). There remains the question whether, independently or in conjunction with state law, § 1983 affords parents a cause of action for a wrongful killing of their child by a state law enforcement officer and, if it does, the further question as to the measure of damages in such case. This Court has never addressed these issues.1 Beginning xAt least one case in this Court has involved such an action. In Scheuer v. Rhodes, 416 U. S. 232 (1974), personal representatives of students killed in the 1970 slayings at Kent State University brought a § 1983 action alleging the wrongful killing of the victims. The Court held 190 OCTOBER TERM, 1976 White, J., dissenting 432 U. S. with Brazier v. Cherry, 293 F. 2d 401 (CA5), cert, denied, 368 U. S. 921 (1961), however, the (Courts of Appeals have permitted survivor suits under § 1983, at least where such actions are maintainable under state law. See, e. g., Spence v. Staras, 507 F. 2d 554 (CA7 1974); Hall v. Wooten, 506 F. 2d 564 (CA6 1974). See also Hampton v. Chicago, 484 F. 2d 602, 607 (CA7 1973) (Stevens, J.), cert, denied, 415 U. S. 917 (1974). In Brazier the Fifth Circuit held that an action by a widow against a police officer for the wrongful killing of her husband was maintainable under § 1983. There the Court of Appeals found that in enacting 42 U. S. C. § 1988, “Congress adopted as federal law the currently effective state law on the general right of survival.” 293 F. 2d, at 405. The same court has now ruled that a § 1983 action survives the death of the victim, despite state law to the contrary. 'Shaw v. Garrison, 545 F. 2d 980 (1977). It is thus apparent that the availability of § 1983 in wrongful-death actions is a recurring issue and that it is far from evident that the Colorado Supreme Court was correct in ruling that a § 1983 death action is tied to state law. It is clear that by enacting § 1983, Congress intended to create a federal right of action separate and independent from any remedies afforded under state law. See Monroe v. Pape, supra. State law may be relevant where a trial court is seeking to fix a remedy under § 1983, cf. Moor v. County of Alameda, 411 U. S. 693, 702-703 (1973), but it is by no means clear that state law may serve as a limitation on recovery where the remedy provided under state law is inadequate to implement the purposes of § 1983. Thus, “both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. Cf. Brazier v. that state officials were not absolutely immune from such suits. Although the question whether the personal representatives’ action could be maintained under § 1983 was not before the Court, it did not disapprove of such actions in remanding the case to the lower courts. JONES v. HILDEBRANT 191 183 White, J., dissenting Cherry, 293 F. 2d 401. The rule of damages, whether drawn from federal or-state sources, is a federal rule responsive to the need whenever a federal right is impaired.” Sullivan v. Little Hunting Park, 396 U. S. 229, 240 (1969). The Courts of Appeals have taken a similar approach by allowing recovery of punitive damages in suits brought under § 1983 even if state law would not have permitted them. See Caperci v. Hunto on, 397 F. 2d 799 (CAI), cert, denied, 393 U. S. 940 (1968); Basista v. Weir, 340 F. 2d 74, 84-88 (CA3 1965). See also Spence v. Staras, supra, at 558; Gill v. Manuel, 488 F. 2d 799, 801-802 (CA9 1973); Annot., 14 A. L. R. Fed. 608 (1973). Despite the importance of the question whether § 1983 is available when a state officer wrongfully takes a life, the Court dismisses the writ of certiorari as improvidently granted because in its view the critical issues are not properly before us. I disagree. Petitioner included in her complaint filed in the trial court a claim for relief under 42 U. S. C. § 1983.2 That cause of action was dismissed on the ground that it was merged in the state wrongful-death action also included in the complaint. The Colorado Supreme Court rejected petitioner’s claim that “her § 1983 claim should not have been dismissed,” 191 Colo. 1, 5, 550 P. 2d 339, 342 (1976), and in so doing rejected each of the “four distinct theories [advanced] to support her” § 1983 cause of action. 191 Colo., at 5, 550 P. 2d, at 342. 2 Petitioner’s first two claims for relief were grounded on state law. The third claim for relief stated: “During all times mentioned in this Complaint, Douglas Hildebrant while acting under color of law, intentionally deprived the Plaintiff of her rights, security and liberty secured to her by the Constitution of the United States, including but not limited to: “a. Her child’s right to life; “b. The right to her child’s freedom from physical abuse, coercion, intimidation, and physical death; and “c. Her right to her children’s equal protection of the laws.” App. 3. 192 OCTOBER TERM, 1976 White, J., dissenting 432 U. S. One of petitioner’s arguments was that §§ 1983 and 1988 together permit suits under § 1983 in reliance on state wrongful-death statutes but authorize recovery of damages free from the limitations of state law. The Colorado Supreme Court agreed that “§ 1988 permits the incorporation of the states’ non-abatement statutes and wrongful death statutes into § 1983 actions in order to effectually implement the policies of that legislation,” 191 Colo., at 6, 550 P. 2d, at 343— 344 (footnotes omitted), and that in a federal suit “Colorado’s wrongful death remedy would be engrafted into a § 1983 action.” Id., at 7, 550 P. 2d, at 344. But it disagreed with petitioner on the question of remedy, holding that any such § 1983 action was subject to the damages limitations of state law—here the Colorado rule limiting recovery for wrongful death to direct pecuniary loss to the survivors; and because suit was brought in state court, the § 1983 case merged with the state wrongful-death action and was properly dismissed. Chief Justice Pringle and Justice Groves dissented, saying that they did not “believe that Colorado’s judicial limitation of net pecuniary loss as a measure of damages for wrongful death applies to actions founded upon 42 U. S. C. § 1983 . . . .” 191 Colo., at 9, 550 P. 2d, at 345-346. In the course of arriving at this conclusion, the Colorado Supreme Court expressly rejected the other grounds offered by petitioner to sustain her § 1983 claim. First, because the Colorado statute permitted petitioner to bring her suit, she was not deprived of any civil right “without due process of law.” 191 Colo., at 6, 550 P. 2d, at 343. Second, the Colorado court rejected as contrary to congressional intent, the “theory . . . that a federal wrongful death remedy impliedly exists in § 1983, independent of state wrongful death remedies.” Id., at 8, 550 P. 2d, at 345.3 3 The Colorado Supreme Court was emphatic: “Though the United States Supreme Court has ruled that federal wrongful death remedies impliedly exist in some areas of the law, we do not believe that such JONES v. HILDEBRANT 193 183 White, J., dissenting Petitioner also claimed that she was entitled to a “separate recovery under her § 1983 claim” because “she was deprived of her own constitutional rights” in that “her child’s right to life, his right to freedom from physical abuse and intimidation, and his right to equal protection of the laws were violated.” Ibid. In rejecting this claim, the court held that “[t]hese deprivations . . . are really those of her son” and that a § 1983 action did not lie for injuries to another. Petitioner could not “sue in her own right for the deprivations of her son’s rights,” such as his right to life. Ibid. The Colorado court thus treated petitioner’s claim as a survivor’s suit based on the deceased’s cause of action, holding that § 1983 does not provide for such an action independently of state law. Finally, the Colorado Supreme Court expressly rejected any notion that the State “directly attempt[ed] to restrict [petitioner’s] own personal decisions relating to procreation, contraception, and child-rearing which are involved in Griswold v. Connecticut, 381 U. S. 479 . . . (1965), and Meyer n. Nebraska, 262 U. S. 390 .. . (1923).” 191 Colo., at 9, 550 P. 2d, at 345. While conceding that “the death of a family member represents a loss” to petitioner, the court held that the State had not interfered with her right to child rearing, and “§ 1983 was not designed to compensate for these collateral losses resulting from injuries to others.” Ibid. Accordingly, the rights of parents were sufficiently vindicated by the state statutory recovery of direct pecuniary losses resulting from the death of their children. It is obvious from the proceedings in the Colorado courts that the dismissal of petitioner’s § 1983 claim and the associ- a remedy exists with § 1983 claims. This belief is based on the perceived Congressional intent not to pre-empt the states’ carefully wrought wrongful death remedies, the adequacy in a death case of the state remedies to vindicate a civil rights violation, and the overwhelming acceptance of such state remedies in the federal courts.” 191 Colo., at 8, 550 P. 2d, at 345 (footnotes omitted). 194 OCTOBER TERM, 1976 White, J., dissenting 432 U. S. ated damages limitation ruling were unsuccessfully challenged in the Colorado Supreme Court on the grounds just mentioned. It also seems to me that these grounds were preserved by the petition for certiorari, which we granted and which presented the following questions: “Where the black mother of a 15-year-old child who was intentionally shot and killed by a white policeman acting under the color of state law brings a suit in state court pursuant to 42 U. S. C. § 1983, what is the measure of damages? Particularly, can the state measure of damages cancel and displace an action brought pursuant to 42 U. S. C. § 1983?” The questions “what is the measure of damages” in a § 1983 suit and “can a state measure of damages cancel and displace an action brought pursuant to § 1983” fairly pose the correctness of the Colorado Supreme Court rulings that (1) no § 1983 action exists independently of state law; (2) a survivor may not sue under § 1983 for injuries suffered by the deceased; and (3) the damages recoverable under § 1983 are limited by Colorado law to direct pecuniary loss and do not reach “collateral” injuries. These issues were addressed directly by the Colorado Supreme Court, and I doubt that that court misunderstood the scope of the litigation before it or reached and decided issues not fairly presented by the appeal. Nor do I think that the oral argument, even when read in the majority’s common-law pleading style, ineluctably supports any conclusion that petitioner has abandoned any of these claims. At oral argument, petitioner’s claim as a parent was articulated several times: “a right to not have her child taken”; she was deprived of the “liberty to raise children”; she had the right “[t]o raise her child”; and the “constitutional violation was the infringement of her rights as a parent.” Tr. of Oral Arg. 8-10. In light of these statements and similar ones throughout the oral argument it cannot JONES v. HILDEBRANT 195 183 White, J., dissenting be said that petitioner has abandoned her claim, expressly rejected by the Colorado Supreme Court, that § 1983 affords a remedy to petitioner in her capacity as a parent wholly independent of state law. Similarly, petitioner’s counsel made his view clear that even if the § 1983 action for the death of petitioner’s child was dependent on state law, it was error to restrict petitioner’s recovery to her direct pecuniary losses pursuant to the Colorado rule. Recovery should include, it was urged, damages for loss of a parent’s own “civil rights” as well as punitive damages for the wrongful killing. Tr. of Oral Arg. 45. Finally, it appears to me that petitioner has preserved her claim that § 1983 affords a survivor’s action for the invasion of her child’s right to life. Although petitioner’s counsel seems to have characterized his claims in the state courts as being related solely to the mother’s rights as a parent, the Colorado Supreme Court understood them to consist in part of claims on behalf of the son and, as I have indicated, expressly held these claims not cognizable under § 1983. 191 Colo., at 8, 550 P. 2d, at 345. At oral argument, counsel for petitioner conceded that he had not pressed his client’s survivorship claim, apparently because he felt constrained by certain lower court opinions, since reversed or overruled, to articulate petitioner’s claims in the Colorado courts in terms of the mother’s rights alone. But he made it clear that “in hindsight” he would assert the survivorship claim, citing Shaw v. Garrison, 545 F. 2d 980 (CA5 1977), for the proposition that independently of state law a § 1983 action survives the death of the victim. Tr. of Oral Arg. 17-18, 20, 22. Because the Colorado Supreme Court understood petitioner’s submission as including a survivorship claim based on injury to the son and because the issue is fairly presented by petitioner’s petition for certiorari, it is hypertechnical to hold that the survivorship issue is not here. Of course, the Court is not bound by concessions of counsel in oral argument as to whether a legal issue is open 196 OCTOBER TERM, 1976 White, J., dissenting 432 U. S. in this Court. Cf. Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U. S. 363,368 n. 3 (1977). In any event, in light of the record, I am at a loss to understand the basis for dismissing the writ of certiorari with respect to the other questions expressly raised or fairly subsumed in the questions presented in the petition. These issues are important and we should decide them. I respectfully dissent from the judgment of dismissal. PATTERSON v. NEW YORK 197 Syllabus PATTERSON v. NEW YORK APPEAL FROM THE COURT OF APPEALS OF NEW YORK No. 75-1861. Argued March 1, 1977—Decided June 17, 1977 New York law requiring that the defendant in a prosecution for second-degree murder prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter held not to violate the Due Process Clause of the Fourteenth Amendment. Mullaney v. Wilbur, 421 U. S. 684, distinguished. Pp. 201-216. (a) Such affirmative defense does not serve to negative any facts of the crime which the State must prove in order to convict, but constitutes a separate issue on which the defendant is required to carry the burden of persuasion. Pp. 206-207. (b) The Due Process Clause does not put New York to the choice of abandoning such an affirmative defense or undertaking to disprove its existence in order to convict for a crime which is otherwise within the State’s constitutional powers to sanction by substantial punishment. If the State chooses to recognize a factor that mitigates the degree of criminality or punishment, it may assure itself that the fact has been established with reasonable certainty, and to recognize at all a mitigating circumstance does not require the State to prove beyond a reasonable doubt its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, expensive, and inaccurate. Pp. 207-209. 39 N. Y. 2d 288, 347 N. E. 2d 898, affirmed. White, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blackmun, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 216. Rehnquist, J., took no part in the consideration or decision of the case. Victor J. Rubino argued the cause for appellant. With him on the briefs was Betty D. Friedlander. John M. Finnerty argued the cause for appellee. With him on the brief was Alan D. Marrus. 198 OCTOBER TERM, 1976 Opinion of the Court 432U.S. Mr. Justice White delivered the opinion of the Court. The question here is the constitutionality under the Fourteenth Amendment’s Due Process Clause of burdening the defendant in a New York State murder trial with proving the affirmative defense of extreme emotional disturbance as defined by New York law. I After a brief and unstable marriage, the appellant, Gordon Patterson, Jr., became estranged from his wife, Roberta. Roberta resumed an association with John Northrup, a neighbor to whom she had been engaged prior to her marriage to appellant. On December 27, 1970, Patterson borrowed a rifle from an acquaintance and went to the residence of his father-in-law. There, he observed his wife through a window in a state of semiundress in the presence of John Northrup. He entered the house and killed Northrup by shooting him twice in the head. Patterson was charged with second-degree murder. In New York there are two elements of this crime: (1) “intent to cause the death of another person”; and (2) “causfing] the death of such person or of a third person.” N. Y. Penal Law § 125.25 (McKinney 1975) ? Malice aforethought is not an element of the crime. In addition, the State permits a person accused of murder to raise an affirmative defense that he “acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.” 2 1 References herein to the charge of “murder” under New York law are to this section. Cf. N. Y. Penal Law § 125.27 (McKinney 1975) (murder in the first degree). 2 Section 125.25 provides in relevant part: “A person is guilty of murder in the second degree when: “1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that: “(a) The defendant acted under the influence of extreme emotional PATTERSON v. NEW YORK 199 197 Opinion of the Court New York also recognizes the crime of manslaughter. A person is guilty of manslaughter if he intentionally kills another person “under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance.”3 Appellant confessed before trial to killing Northrup, but at trial he raised the defense of extreme emotional disturbance.4 The jury was instructed as to the elements of the crime of murder. Focusing on the element of intent, the trial court charged: “Before you, considering all of the evidence, can convict this defendant or anyone of murder, you must believe and decide that the People have established beyond a reasonable doubt that he intended, in firing the gun, to kill disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.” 3 Section 125.20 (2), N. Y. Penal Law § 125.20 (2) (McKinney 1975), provides: “A person is guilty of manslaughter in the first degree when: “2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision.” 4 Appellant also contended at trial that the shooting was accidental and that therefore he had no intent to kill Northrup. It is here undisputed, however, that the prosecution proved beyond a reasonable doubt that the killing was intentional. 200 OCTOBER TERM, 1976 Opinion of the Court 432U.S. either the victim himself or some other human being. . . . “Always remember that you must not expect or require the defendant to prove to your satisfaction that his acts were done without the intent to kill. Whatever proof he may have attempted, however far he may have gone in an effort to convince you of his innocence or guiltlessness, he is not obliged, he is not obligated to prove anything. It is always the People’s burden to prove his guilt, and to prove that he intended to kill in this instance beyond a reasonable doubt.” App. A70-A71.5 The jury was further instructed, consistently with New York law, that the defendant had the burden of proving his affirmative defense by a preponderance of the evidence. The jury was told that if it found beyond a reasonable doubt that appellant had intentionally killed Northrup but that appellant had demonstrated by a preponderance of the evidence that he had acted under the influence of extreme emotional disturbance, it had to find appellant guilty of manslaughter instead of murder. The jury found appellant guilty of murder. Judgment was entered on the verdict, and the Appellate Division affirmed. While appeal to the New York Court of Appeals was pending, this Court decided Mullaney v. Wilbur, 421 U. S. 684 (1975), in which the Court declared Maine’s murder statute unconstitutional. Under the Maine statute, a person accused of murder could rebut the statutory presumption that he com 5 The trial court’s instructions to the jury focused emphatically and repeatedly on the prosecution’s burden of proving guilt beyond a reasonable doubt. “The burden of proving the guilt of a defendant beyond a reasonable doubt rests at all times upon the prosecution. A defendant is never obliged to prove his innocence. “Before you can find a defendant guilty, you must be convinced that each and every element of the crime charged and his guilt has been established to your satisfaction by reliable and credible evidence beyond a reasonable doubt.” App. A48-A49. PATTERSON v. NEW YORK 201 197 Opinion of the Court mitted the offense with “malice aforethought” by proving that he acted in the heat of passion on sudden provocation. The Court held that this scheme improperly shifted the burden of persuasion from the prosecutor to the defendant and was therefore a violation of due process. In the Court of Appeals appellant urged that New York’s murder statute is functionally equivalent to the one struck down in Mullaney and that therefore his conviction should be reversed/5 The Court of Appeals rejected appellant’s argument, holding that the New York murder statute is consistent with due process. 39 N. Y. 2d 288, 347 N. E. 2d 898 (1976). The Court distinguished Mullaney on the ground that the New York statute involved no shifting of the burden to the defendant to disprove any fact essential to the offense charged since the New York affirmative defense of extreme emotional disturbance bears no direct relationship to any element of murder. This appeal ensued, and we noted probable jurisdiction. 429 U. S. 813 (1976). We affirm. II It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, Irvine v. California, 347 U. S. 128, 134 (1954) (plurality opinion), and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally “within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,” and its decision in this regard is not subject to proscription 6 In Hankerson n. North Carolina, post, p. 233, we hold, as did the New York Court of Appeals in the present case, that Mullaney is to be applied retroactively. The fact that Patterson was tried prior to our decision in Mullaney does not insulate this case from the principles of Mullaney. 202 OCTOBER TERM, 1976 Opinion of the Court 432U.S. under the Due Process Clause unless “it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Speiser n. Randall, 357 U. S. 513, 523 (1958); Leland v. Oregon, 343 U. S. 790, 798 (1952); Snyder n. Massachusetts, 291 U. S. 97, 105 (1934). In determining whether New York’s allocation to the defendant of proving the mitigating circumstances of severe emotional disturbance is consistent with due process, it is therefore relevant to note that this defense is a considerably expanded version of the common-law defense of heat of passion on sudden provocation and that at common law the burden of proving the latter, as well as other affirmative defenses—indeed, “all... circumstances of justification, excuse or alleviation”—rested on the defendant. 4 W. Blackstone, Commentaries *201; M. Foster, Crown Law 255 (1762); Mullaney v. Wilbur, supra, at 693-694.7 This was the rule when the Fifth Amendment was adopted, and it was the American rule when the Fourteenth Amendment was ratified. Commonwealth v. York, 50 Mass. 93 (1845).8 In 1895 the common-law view was abandoned with respect to the insanity defense in federal prosecutions. Davis v. United States, 160 U. S. 469 (1895). This ruling had wide impact on the practice in the federal courts with respect to the burden of proving various affirmative defenses, and the prose 7 See also F. Wharton, A Treatise on the Law of Evidence in Criminal Issues 240-269 (9th ed. 1884); H. Kelley, Criminal Law and Practice 124-128, 131 (1876); Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 882-884 (1968); Note, Affirmative Defenses After Mullaney v. Wilbur: New York’s Extreme Emotional Disturbance, 43 Brooklyn L. Rev. 171, 190 (1976). 8 York, which relied on American authorities dating back to the early 1800’s, confirmed that the common-law and prevailing American view w:as that the burden was on the defendant to prove provocation. York is said to have governed a half century of American burden-of-proof decisions in provocation and self-defense cases. Fletcher, supra, n. 7, at 903-904. PATTERSON v. NEW YORK 203 197 Opinion of the Court cution in a majority of jurisdictions in this country sooner or later came to shoulder the burden of proving the sanity of the accused and of disproving the facts constituting other affirmative defenses, including provocation. Davis was not a constitutional ruling, however, as Leland v. Oregon, supra, made clear.9 9 Meanwhile, the Court had explained that although the State could go too far in shifting the burden of proof to a defendant in a criminal case, the Due Process Clause did not invalidate every instance of burdening the defendant with proving an exculpatory fact. In Morrison v. California, 291 U. S. 82 (1934), a state law made it illegal for an alien ineligible for citizenship to own or possess land. Initially, in a summary dismissal for want of a substantial federal question, Morrison n. California, 288 U. S. 591 (1933), the Court held that it did not violate the Due Process Clause for the State to place on the defendant “the burden of proving citizenship as a defense,” 291 U. S., at 88, once the State’s evidence had shown that the defendant possessed the land and was a member of a race barred from citizenship. In the later Morrison case the Court reiterated and approved its previous summary holding, even though it struck down more drastic burden shifting permitted under another section of the statute. The Court said that its earlier per curiam ruling “was not novel”: “The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression. Cf. Wigmore, Evidence, Vol. 5, §§ 2486, 2512 and cases cited. Special reasons are at hand to make the change permissible when citizenship vel non is the issue to be determined. Citizenship is a privilege not due of common right. One who lays claim to it as his, and does this in justification or excuse of an act otherwise illegal, may fairly be called upon to prove his title good.” Id., at 88-89. In ruling that in the other section of the statute then at issue the State had gone too far, the Court said: “For a transfer of the burden, experience must teach that the evidence 204 OCTOBER TERM, 1976 Opinion of the Court 432U.S. At issue in Leland v. Oregon was the constitutionality under the Due Process Clause of the Oregon rule that the defense of insanity must be proved by the defendant beyond a reasonable doubt. Noting that Davis “obviously establish [ed] no constitutional doctrine,” 343 U. S., at 797, the Court refused to strike down the Oregon scheme, saying that the burden of proving all elements of the crime beyond reasonable doubt, including the elements of premeditation and deliberation, was placed on the State under Oregon procedures and remained there throughout the trial. To convict, the jury was required to find each element of the crime beyond a reasonable doubt, based on all the evidence, including the evidence going to the issue of insanity. Only then was the jury “to consider separately the issue of legal sanity per se . . . .” Id., at 795. This practice did not offend the Due Process Clause even though among the 20 States then placing the burden of proving his insanity on the defendant, Oregon was alone in requiring him to convince the jury beyond a reasonable doubt. In 1970, the Court declared that the Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U. S. held to be inculpatory has at least a sinister significance (Yee Hem v. United States, [268 U. S. 178 (1925)]; Casey v. United States [276 U. S. 413 (1928)]), or if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception. Greenleaf, Evidence, Vol. 1, § 79.” Id., at 90-91. The Court added that, of course, the possible situations were too variable and that too much depended on distinctions of degree to crowd them all into a simple formula. A sharper definition was to await specific cases. Of course, if the Morrison cases are understood as approving shifting to the defendant the burden of disproving a fact necessary to constitute the crime, the result in the first Morrison case could not coexist with In re Winship, 397 U. S. 358 (1970), and Mullaney. PATTERSON v. NEW YORK 205 197 Opinion of the Court 358, 364 (1970). Five years later, in Mullaney v. Wilbur, 421 U. S. 684 (1975), the Court further announced that under the Maine law of homicide, the burden could not constitutionally be placed on the defendant of proving by a preponderance of the evidence that the killing had occurred in the heat of passion on sudden provocation. The Chief Justice and Mr. Justice Rehnquist, concurring, expressed their understanding that the Mullaney decision did not call into question the ruling in Leland v. Oregon, supra, with respect to the proof of insanity. Subsequently, the Court confirmed that it remained constitutional to burden the defendant with proving his insanity defense when it dismissed, as not raising a substantial federal question, a case in which the appellant specifically challenged the continuing validity of Leland v. Oregon. This occurred in Rivera v. Delaware, 429 U. S. 877 (1976), an appeal from a Delaware conviction which, in reliance on Leland, had been affirmed by the Delaware Supreme Court over the claim that the Delaware statute was unconstitutional because it burdened the defendant with proving his affirmative defense of insanity by a preponderance of the evidence. The claim in this Court was that Leland had been overruled by Winship and Mullaney. We dismissed the appeal as not presenting a substantial federal question. Cf. Hicks v. Miranda, 422 U. S. 332, 344 (1975). Ill We cannot conclude that Patterson’s conviction under the New York law deprived him of due process of law. The crime of murder is defined by the statute, which represents a recent revision of the state criminal code, as causing the death of another person with intent to do so. The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred 206 OCTOBER TERM, 1976 Opinion of the Court 432U.S. in order to constitute the crime. The statute does provide an affirmative defense—that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation—which, if proved by a preponderance of the evidence, would reduce the crime to manslaughter, an offense defined in a separate section of the statute. It is plain enough that if the intentional killing is shown, the State intends to deal with the defendant as a murderer unless he demonstrates the mitigating circumstances. Here, the jury was instructed in accordance with the statute, and the guilty verdict confirms that the State successfully carried its burden of proving the facts of the crime beyond a reasonable doubt. Nothing in the evidence, including any evidence that might have been offered with respect to Patterson s mental state at the time of the crime, raised a reasonable doubt about his guilt as a murderer; and clearly the evidence failed to convince the jury that Patterson’s affirmative defense had been made out. It seems to us that the State satisfied the mandate of Winship that it prove beyond a reasonable doubt “every fact necessary to constitute the crime with which [Patterson was] charged.” 397 U. S., at 364. In convicting Patterson under its murder statute, New York did no more than Leland and Rivera permitted it to do without violating the Due Process Clause. Under those cases, once the facts constituting a crime are established beyond a reasonable doubt, based on all the evidence including the evidence of the defendant’s mental state, the State may refuse to sustain the affirmative defense of insanity unless demonstrated by a preponderance of the evidence. The New York law on extreme emotional disturbance follows this pattern. This affirmative defense, which the Court of Appeals described as permitting “the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them,” 39 N. Y. 2d, at 302, 347 N. E. 2d, at 907, PATTERSON v. NEW YORK 207 197 Opinion of the Court does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion; and unless we are to overturn Leland and Rivera, New York has not violated the Due Process Clause, and Patterson’s conviction must be sustained. We are unwilling to reconsider Leland and Rivera. But even if we were to hold that a State must prove sanity to convict once that fact is put in issue, it would not necessarily follow that a State must prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment. Here, in revising its criminal code, New York provided the affirmative defense of extreme emotional disturbance, a substantially expanded version of the older heat-of-passion concept; but it was willing to do so only if the facts making out the defense were established by the defendant with sufficient certainty. The State was itself unwilling to undertake to establish the absence of those facts beyond a reasonable doubt, perhaps fearing that proof would be too difficult and that too many persons deserving treatment as murderers would escape that punishment if the evidence need merely raise a reasonable doubt about the defendant’s emotional state. It has been said that the new criminal code of New York contains some 25 affirmative defenses which exculpate or mitigate but which must be established by the defendant to be operative.10 The Due Process Clause, as we see it, does not 10 The State of New York is not alone in this result: “Since the Model Penal Code was completed in 1962, some 22 states have codified and reformed their criminal laws. At least 12 of these jurisdictions have used the concept of an 'affirmative defense’ and have defined that phrase to require that the defendant prove the existence of an 'affirmative defense’ by a preponderance of the evidence. Additionally, at least six proposed state codes and each of the four successive versions of a 208 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. put New York to the choice of abandoning those defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment. The requirement of proof beyond a reasonable doubt in a criminal case is “bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” Winship, 397 U. S., at 372 (Harlan, J., concurring). The social cost of placing the burden on the prosecution to prove guilt beyond a reasonable doubt is thus an increased risk that the guilty will go free. While it is clear that our society has willingly chosen to bear a substantial burden in order to protect the innocent, it is equally clear that the risk it must bear is not without limits; and Mr. Justice Harlan’s aphorism provides little guidance for determining what those limits are. Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person. Punishment of those found guilty by a jury, for example, is not forbidden merely because there is a remote possibility in some instances that an innocent person might go to jail. It is said that the common-law rule permits a State to revised federal code use the same procedural device. Finally, many jurisdictions that do not generally employ this concept of 'affirmative defense’ nevertheless shift the burden of proof to the defendant on particular issues.” Low & Jeffries, DICTA: Constitutionalizing the Criminal Law?, 29 Va. Law Weekly, No. 18, p. 1 (1977) (footnotes omitted). Even so, the trend over the years appears to have been to require the prosecution to disprove affirmative defenses beyond a reasonable doubt. See W. LaFave & A. Scott, Criminal Law § 8, p. 50 (1972); C. McCormick, Evidence §341, pp. 800-802 (2d ed. 1972). The split among the various jurisdictions varies for any given defense. Thus, 22 jurisdictions place the burden of proving the affirmative defense of insanity on the defendant, while 28 jurisdictions place the burden of disproving insanity on the prosecution. Note, Constitutional Limitations on Allocating the Burden of Proof of Insanity to the Defendant in Murder Cases, 56 B. U. L. Rev. 499, 503-505 (1976). PATTERSON v. NEW YORK 209 197 Opinion of the Court punish one as a murderer when it is as likely as not that he acted in the heat of passion or under severe emotional distress and when, if he did, he is guilty only of manslaughter. But this has always been the case in those jurisdictions adhering to the traditional rule. It is also very likely true that fewer convictions of murder would occur if New York were required to negative the affirmative defense at issue here. But in each instance of a murder conviction under the present law, New York will have proved beyond a reasonable doubt that the defendant has intentionally killed another person, an act which it is not disputed the State may constitutionally criminalize and punish. If the State nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonable certainty. To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate.11 11 The drafters of the Model Penal Code would, as a matter of policy, place the burden of proving the nonexistence of most affirmative defenses, including the defense involved in this case, on the prosecution once the defendant has come forward with some evidence that the defense is present. The drafters recognize the need for flexibility, however, and would, in “some exceptional situations,” place the burden of persuasion on the accused. “Characteristically these are situations where the defense does not obtain at all under existing law and the Code seeks to introduce a mitigation. Resistance to the mitigation, based upon the prosecution’s difficulty in obtaining evidence, ought to be lowered if the burden of persuasion is imposed on the defendant. Where that difficulty appears genuine and there is something to be said against allowing the defense at all, we consider it defensible to shift the burden in this way.” ALI, Model Penal Code § 1.13, Comment, p. 113 (Tent. Draft No. 4,1955). Other writers have recognized the need for flexibility in allocating the burden of proof in order to enhance the potential for liberal legislative reforms. See, e. g., Low & Jeffries, supra, n. 10; Christie & Pye, Presump- 210 OCTOBER TERM, 1976 Opinion of the Court 432U.S. We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society’s interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here. This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard. “[I]t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.” McFarland v. American Sugar Rfg. Co., 241 U. S. 79, 86 (1916). The legislature cannot “validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt.” Tot v. United States, 319 U. S. 463, 469 (1943). See also Speiser v. Randall, 357 U. S., at 523-525. Morrison v. California, 291 U. S. 82 (1934), also makes the point with sufficient clarity. tions and Assumptions in the Criminal Law: Another View, 1970 Duke L. J. 919, 933-938. See also Allen, Mullaney v. Wilbur, the Supreme Court, and the Substantive Criminal Law—An Examination of the Limits of Legitimate Intervention, 55 Texas L. Rev. 269 (1977). PATTERSON v. NEW YORK 211 197 Opinion of the Court Long before Winship, the universal rule in this country was that the prosecution must prove guilt beyond a reasonable doubt. At the same time, the long-accepted rule was that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant. This did not lead to such abuses or to such widespread redefinition of crime and reduction of the prosecution’s burden that a new constitutional rule was required.12 This was not the problem to which Winship was addressed. Nor does the fact that a majority of the States have now assumed the burden of disproving affirmative defenses—for whatever reasons—mean that those States that strike a different balance are in violation of the Constitution.13 12 Whenever due process guarantees are dependent upon the law as defined by the legislative branches, some consideration must be given to the possibility that legislative discretion may be abused to the detriment of the individual. See Mullaney v. Wilbur, 421 U. 8., at 698-699. The applicability of the reasonable-doubt standard, however, has always been dependent on how a State defines the offense that is charged in any given case; yet there has been no great rush by the States to shift the burden of disproving traditional elements of the criminal offenses to the accused. 13 As Chief Judge Breitel cogently stated in concurring in the judgment and opinion below: “A preliminary caveat is indicated. It would be an abuse of affirmative defenses, as it would be of presumptions in the criminal law, if the purpose or effect were to unhinge the procedural presumption of innocence which historically and constitutionally shields one charged with crime. Indeed, a by-product of such abuse might well be also to undermine the privilege against self-incrimination by in effect forcing a defendant in a criminal action to testify in his own behalf. “Nevertheless, although one should guard against such abuses, it may be misguided, out of excess caution, to forestall or discourage the use of affirmative defenses, where defendant may have the burden of proof but no greater than by a preponderance of the evidence. In the absence of affirmative defenses the impulse to legislators, especially in periods of concern about the rise of crime, would be to define particular crimes in unqualifiedly general terms, and leave only to sentence the adjustment between offenses of lesser and greater degree. In times when there is also 212 OCTOBER TERM, 1976 Opinion of the Court 432U.S. IV It is urged that Mullaney v. Wilbur necessarily invalidates Patterson’s conviction. In Mullaney the charge was murder,14 which the Maine statute defined as the unlawful killing of a human being “with malice aforethought, either express or implied.” The trial court instructed the jury that the words “malice aforethought” were most important because “malice a retrogressive impulse in legislation to restrain courts by mandatory sentences, the evil would be compounded. “The affirmative defense, intelligently used, permits the gradation of offenses at the earlier stages of prosecution and certainly at the trial, and thus offers the opportunity to a defendant to allege or prove, if he can, the distinction between the offense charged and the mitigating circumstances which should ameliorate the degree or kind of offense. The instant homicide case is a good example. Absent the affirmative defense, the crime of murder or manslaughter could legislatively be defined simply to require an intent to kill, unaffected by the spontaneity with which that intent is formed or the provocative or mitigating circumstances which should legally or morally lower the grade of crime. The placing of the burden of proof on the defense, with a lower threshold, however, is fair because of defendant’s knowledge or access to the evidence other than his own on the issue. To require the prosecution to negative the ‘element’ of mitigating circumstances is generally unfair, especially since the conclusion that the negative of the circumstances is necessarily a product of definitional and therefore circular reasoning, and is easily avoided by the likely legislative practice mentioned earlier. “In sum, the appropriate use of affirmative defenses enlarges the ameliorative aspects of a statutory scheme for the punishment of crime, rather than the other way around—a shift from primitive mechanical classifications based on the bare antisocial act and its consequences, rather than on the nature of the offender and the conditions which produce some degree of excuse for his conduct, the mark of an advanced criminology.” 39 N. Y. 2d 288, 305-307, 347 N. E. 2d 898, 909-910 (1976). 14 The defendant in Mullaney was convicted under Me. Rev. Stat. Ann., Tit. 17, §2651 (1964), which provided: “Whoever unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder and shall be punished by imprisonment for life.” PATTERSON v. NEW YORK 213 197 Opinion of the Court aforethought is an essential and indispensable element of the crime of murder.” Malice, as the statute indicated and as the court instructed, could be implied and was to be implied from “any deliberate, cruel act committed by one person against another suddenly ... or without a considerable provocation,” in which event an intentional killing was murder unless by a preponderance of the evidence it was shown that the act was committed “in the heat of passion, on sudden provocation.” The instructions emphasized that “ ‘malice aforethought and heat of passion on sudden provocation are two inconsistent things’; thus, by proving the latter the defendant would negate the former.” 421 U. S., at 686-687 (citation omitted). Wilbur’s conviction, which followed, was affirmed. The Maine Supreme Judicial Court held that murder and manslaughter were varying degrees of the crime of felonious homicide and that the presumption of malice arising from the unlawful killing was a mere policy presumption operating to cast on the defendant the burden of proving provocation if he was to be found guilty of manslaughter rather than murder—a burden which the Maine law had allocated to him at least since the mid-1800’s. The Court of Appeals for the First Circuit then ordered that a writ of habeas corpus issue, holding that the presumption unconstitutionally shifted to the defendant the burden of proof with respect to an essential element of the crime. The Maine Supreme Judicial Court disputed this interpretation of Maine law in State v. Lafferty, 309 A. 2d 647 (1973), declaring that malice aforethought, in the sense of premeditation, was not an element of the crime of murder and that the federal court had erroneously equated the presumption of malice with a presumption of premeditation. “Maine law does not rely on a presumption of ‘premeditation’ (as Wilbur v. Mullaney assumed) to prove an essential element of unlawful homicide punishable as murder. 214 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. Proof beyond a reasonable doubt of ‘malice aforethought’ (in the sense of ‘premeditation’) is not essential to conviction. . . . [T]he failure of the State to prove ‘premeditation’ in this context is not fatal to such a prosecution because, by legal definition under Maine law, a killing becomes unlawful and punishable as ‘murder’ on proof of ‘any deliberate, cruel act, committed by one person against another, suddenly without any, or without a considerable provocation.' State n. Neal, 37 Me. 468, 470 (1854). Neal has been frequently cited with approval by our Court.” Id., at 664-665. (Emphasis added; footnote omitted.) When the judgment of the First Circuit was vacated for reconsideration in the light of Lafferty, that court reaffirmed its view that Wilbur’s conviction was unconstitutional. This Court, accepting the Maine court’s interpretation of the Maine law, unanimously agreed with the Court of Appeals that Wilbur’s due process rights had been invaded by the presumption casting upon him the burden of proving by a preponderance of the evidence that he had acted in the heat of passion upon sudden provocation. Mullaney’s holding, it is argued, is that the State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt.15 In our view, 15 There is some language in Mullaney that has been understood as perhaps construing the Due Process Clause to require the prosecution to prove beyond a reasonable doubt any fact affecting “the degree of criminal culpability.” See, e. g., Note, Affirmative Defenses After Mullaney y. Wilbur: New York’s Extreme Emotional Disturbance, 43 Brooklyn L. Rev. 171 (1976); Note, Affirmative Defenses in Ohio After Mullaney v. Wilbur, 36 Ohio St. L. J. 828 (1975); Comment, Unburdening the Crim-inal Defendant: Mullaney v. Wilbur and the Reasonable Doubt Standard, 11 Harv. Civ. Rights-Civ. Lib. L. Rev. 390 (1976). It is said that such PATTERSON v. NEW YORK 215 197 Opinion of the Court the Mullaney holding should not be so broadly read. The concurrence of two Justices in Mullaney was necessarily contrary to such a reading; and a majority of the Court refused to so understand and apply Mullaney when Rivera was dismissed for want of a substantial federal question. Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. This is true even though the State’s practice, as in Maine, had been traditionally to the contrary. Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause. It was unnecessary to go further in Mullaney. The Maine Supreme Judicial Court made it clear that malice aforethought, which was mentioned in the statutory definition of the crime, was not equivalent to premeditation and that the presumption of malice traditionally arising in intentional homicide cases carried no factual meaning insofar as premeditation was concerned. Even so, a killing became murder in Maine when it resulted from a deliberate, cruel act committed by one person against another, “suddenly without any, or without a considerable provocation.” State v. Lafferty, supra, at 665. Premeditation was not within the definition of murder; but a rule would deprive legislatures of any discretion whatsoever in allocating the burden of proof, the practical effect of which might be to undermine legislative reform of our criminal justice system. See Part II, supra; Low & Jeffries, supra, n. 10. Carried to its logical extreme, such a reading of Mullaney might also, for example, discourage Congress from enacting pending legislation to change the felony-murder rule by permitting the accused to prove by a preponderance of the evidence the affirmative defense that the homicide committed was neither a necessary nor a reasonably foreseeable consequence of the underlying felony. See Senate bill S. 1, 94th Cong., 1st Sess., 118 (1975). The Court did not intend Mullaney to have such far-reaching effect. 216 OCTOBER TERM, 1976 Powell, J., dissenting 432 U. S. malice, in the sense of the absence of provocation, was part of the definition of that crime. Yet malice, i. e., lack of provocation, was presumed and could be rebutted by the defendant only by proving by a preponderance of the evidence that he acted with heat of passion upon sudden provocation. In Mullaney we held that however traditional this mode of proceeding might have been, it is contrary to the Due Process Clause as construed in Winship. As we have explained, nothing was presumed or implied against Patterson; and his conviction is not invalid under any of our prior cases. The judgment of the New York Court of Appeals is Affirmed. Mr. Justice Rehnquist took no part in the consideration or decision of this case. Mr. Justice Powell, with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting. In the name of preserving legislative flexibility, the Court today drains In re Winship, 397 U. S. 358 (1970), of much of its vitality. Legislatures do require broad discretion in the drafting of criminal laws, but the Court surrenders to the legislative branch a significant part of its responsibility to protect the presumption of innocence. I An understanding of the import of today’s decision requires a comparison of the statutes at issue here with the statutes and practices of Maine struck down by a unanimous Court just two years ago in Mullaney v. Wilbur, 421 U. S. 684 (1975). A Maine’s homicide laws embodied the common-law distinctions along with the colorful common-law language. Murder PATTERSON v. NEW YORK 217 197 Powell, J., dissenting was defined in the statute as the unlawful killing of a human being “with malice aforethought, either express or implied.” Manslaughter was a killing “in the heat of passion, on sudden provocation, without express or implied malice aforethought.” Id., at 686, and n. 3. Although “express malice” at one point may have had its own significant independent meaning, see Perkins, A Re-Examination of Malice Aforethought, 43 Yale L. J. 537, 546-552 (1934), in practice a finding that the killing was committed with malice aforethought had come to mean simply that heat of passion was absent. Indeed, the trial court in Mullaney expressly charged the jury that “malice aforethought and heat of passion on sudden provocation are two inconsistent things.” 421 U. S., at 686-687. And the Maine Supreme Judicial Court had held that instructions concerning express malice (in the sense of premeditation) were unnecessary. The only inquiry for the jury in deciding whether a homicide amounted to murder or manslaughter was the inquiry into heat of passion on sudden provocation. State v. Lafferty, 309 A. 2d 647, 664-665 (Me. 1973). See 421 U. S., at 686 n. 4. Our holding in Mullaney found no constitutional defect in these statutory provisions. Rather, the defect in Maine practice lay in its allocation of the burden of persuasion with respect to the crucial factor distinguishing murder from manslaughter. In Maine, juries were instructed that if the prosecution proved that the homicide was both intentional and unlawful, the crime was to be considered murder unless the defendant proved by a preponderance of the evidence that he acted in the heat of passion on sudden provocation. Only if the defendant carried this burden would the offense be reduced to manslaughter. New York’s present homicide laws had their genesis in lingering dissatisfaction with certain aspects of the common-law framework that this Court confronted in Mullaney. Critics charged that the archaic language tended to obscure the fac 218 OCTOBER TERM, 1976 Powell, J., dissenting 432U.S. tors of real importance in the jury’s decision. Also, only a limited range of aggravations would lead to mitigation under the common-law formula, usually only those resulting from direct provocation by the victim himself. It was thought that actors whose emotions were stirred by other forms of outrageous conduct, even conduct by someone other than the ultimate victim, also should be punished as manslaughterers rather than murderers. Moreover, the common-law formula was generally applied with rather strict objectivity. Only provocations that might cause the hypothetical reasonable man to lose control could be considered. And even provocations of that sort were inadequate to reduce the crime to manslaughter if enough time had passed for the reasonable man’s passions to cool, regardless of whether the actor s own thermometer had registered any decline. See generally W. LaFave & A. Scott, Criminal Law 528-530, 539-540, 571-582 (1972); Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum. L. Rev. 1425, 1446 (1968); ALI, Model Penal Code § 201.3, Comment (Tent. Draft No. 9, 1959); Perkins, supra. Cf. B. Cardozo, Law and Literature and Other Essays 99-101 (1931). The American Law Institute took the lead in moving to remedy these difficulties. As part of its commendable undertaking to prepare a Model Penal Code, it endeavored to bring modern insights to bear on the law of homicide. The result was a proposal to replace “heat of passion” with the moderately broader concept of “extreme mental or emotional disturbance.” The proposal first appeared in a tentative draft published in 1959, and it was accepted by the Institute and included as § 210.3 of the 1962 Proposed Ofiicial Draft. At about this time the New York Legislature undertook the preparation of a new criminal code, and the Revised Penal Law of 1967 was the ultimate result. The new code adopted virtually word for word the ALI formula for distinguishing murder from manslaughter. N. Y. Penal Law §§ 125.20 (2), PATTERSON v. NEW YORK 219 197 Powell, J., dissenting 125.25 (l)(a) (McKinney 1975).1 Under current New York law,2 those who kill intentionally are guilty of murder. But there is an affirmative defense left open to a defendant: If his act was committed “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse,” the crime is reduced to manslaughter. The supposed defects of a formulation like Maine’s have been removed. Some of the rigid objectivity of the common law is relieved, since reasonableness is to be determined “from the viewpoint of a person in the defendant’s situation under‘the circum 1 There are also other forms of manslaughter set forth in the New York statute, not all of which conform to the ALT recommendations. Those provisions are not implicated in this case. 2 The 1967 provisions marked a considerable departure from the prior New York statutes defining manslaughter. As we noted in Mullaney v. Wilbur, 421 U. S. 684, 694 (1975), the grounds for distinguishing murder from manslaughter developed along two distinct paths in this country. Prior to the 1967 change New York, with a handful of other jurisdictions, see ALT, Model Penal Code §201.3, Comment, p. 43 (Tent. Draft No. 9, 1959), pursued the first path: to establish malice (and hence to convict of murder) the prosecution bore the burden of persuasion, being required to establish a substantive element of intent—that the defendant possessed “a design to effect death.” See 39 N. Y. 2d 288, 299, 347 N. E. 2d 898, 905 (1976) (case below); Stokes v. People, 53 N. Y 164 (1873). Maine, in contrast, followed the second path, marked out most prominently by Chief Justice Shaw’s opinion in Commonwealth v. York, 50 Mass. 93 (1845): malice was presumed unless the defendant established that he acted in the heat of passion. This difference between the old New York practice and the York approach was substantial—as noted by the Court of Appeals below. But that court placed entirely too much weight on this distinction as a basis for concluding that Mullaney’s holding was inapplicable. The statute at issue here is the 1967 Revised Penal Law, not the earlier formulation. In 1967, New York broke from the first branch and aligned itself with York, although casting its statute in more modem language. No matter how extensive the differences between the pre-1967 practice and the Maine statutes found deficient in Mullaney, this case must be decided on the basis of current New York law. 220 OCTOBER TERM, 1976 Powell, J., dissenting 432U.S. stances as the defendant believed them to be.” § 125.25 (1) (a). The New York law also permits mitigation when emotional disturbance results from situations other than direct provocation by the victim. And the last traces of confusing archaic language have been removed. There is no mention of malice aforethought, no attempt to give a name to the state of mind that exists when extreme emotional disturbance is not present. The statute is framed in lean prose modeled after the ALI approach, giving operative descriptions of the crucial factors rather than attempting to attach the classical labels. Despite these changes, the major factor that distinguishes murder from manslaughter in New York—“extreme emotional disturbance”—is undeniably the modern equivalent of “heat of passion.” The ALI drafters made this abundantly clear. They were not rejecting the notion that some of those who kill in an emotional outburst deserve lesser punishment; they were merely refining the concept to relieve some of the problems with the classical formulation. See ALI, Model Penal Code, § 201.3, Comment, pp. 40-48 (Tent. Draft No. 9, 1959). The New York drafters left no doubt about their reliance on the ALI work. See 39 N. Y. 2d 288, 300-301, 347 N. E. 2d 898, 906 (1976). Both the majority and the dissenters in the New York Court of Appeals agreed that extreme emotional disturbance is simply “a new formulation” for the traditional language of heat of passion. Id., at 301, 347 N. E. 2d, at 906; id., at 312, 347 N. E. 2d, at 913-914 (Cooke, J., dissenting). But in one important respect the New York drafters chose to parallel Maine’s practice precisely, departing markedly from the ALI recommendation. Under the Model Penal Code the prosecution must prove the absence of emotional disturbance beyond a reasonable doubt once the issue is properly raised. See ALI, Model Penal Code §§ 1.12, 210.3 (Proposed Official Draft 1962); id., § 1.13, Comment, pp. 108-118 (Tent: Draft No. 4, 1955). In New York, however, extreme emotional disturbance constitutes an affirmative defense rather PATTERSON v. NEW YORK 221 197 Powell, J., dissenting than a simple defense. Consequently the defendant bears not only the burden of production on this issue; he has the burden of persuasion as well. N. Y. Penal Law § 25.00 (McKinney 1975). B Mullaney held invalid Maine’s requirement that the defendant prove heat of passion. The Court today, without disavowing the unanimous holding of Mullaney, approves New York’s requirement that the defendant prove extreme emotional disturbance. The Court manages to run a constitutional boundary line through the barely visible space that separates Maine’s law from New York’s. It does so on the basis of distinctions in language that are formalistic rather than substantive. This result is achieved by a narrowly literal parsing of the holding in Winship: “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” 397 U. S., at 364. The only “facts” necessary to constitute a crime are said to be those that appear on the face of the statute as a part of the definition of the crime.3 Maine’s statute was invalid, the Court reasons, because it “defined [murder] as the unlawful killing of a human being ‘with malice aforethought, either express or implied.’,” Ante, at 212. “[M]alice,” the Court reiterates, “in the sense of the absence of provocation, was part of the definition of that crime.” Ante, at 216. Winship was violated only because this “fact”—malice—was “presumed” unless the defendant persuaded the jury otherwise by showing that he acted in the heat of passion.4 New York, in form presuming 3 The Court holds that the prosecution must prove beyond a reasonable doubt “all of the elements included in the definition of the offense of which the defendant is charged.” Ante, at 210 (emphasis added). 4 The Court explains: “Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be 222 OCTOBER TERM, 1976 Powell, J., dissenting 432 U. S- no affirmative “fact” against Patterson,5 and blessed with a statute drafted in the leaner language of the 20th century, escapes constitutional scrutiny unscathed even though the effect on the defendant of New York’s placement of the burden of persuasion is exactly the same as Maine’s. See 39 N. Y. 2d, at 312-313, 347 N. E. 2d, at 913-914 (Cooke, J., dissenting). This explanation of the Mullaney holding bears little re- either proved or presumed is impermissible under the Due Process Clause.” Ante, at 215. I must point out, however, that this is a less than faithful reading of Maine law. The Maine Supreme Judicial Court, rejecting a recent holding to the contrary by the Court, of Appeals for the First Circuit, emphatically insisted that the words “malice aforethought” appearing in the Maine statute did not connote a “fact” to be “presumed” in the sense the latter terms are customarily used: “As we read the [First Circuit] case, the Federal Court was of the impression that [murder] includes, in addition to an intentional and unlawful killing, the independent element of ‘malice aforethought.’ Such is not, and never has been, the law in Maine. As we said in [State v. Rollins, 295 A. 2d 914, 920 (1972)] : “‘[T]he “malice” (said to be “presumed”) is not a designation of any subjective state of mind existing as a fact. Similarly, the “presumption” (of “malice”) arising from the fact of an intentional killing is not a designation of any probative relationship between the fact of “intention” relating to the killing and any further facts State v. Lafferty, 309 A. 2d 647, 664 (1973) (emphasis in original). See id., at 672 (concurring opinion); Mullaney v. Wilbur, 421 U. S., at 689, 699. 5 “The crime of murder is defined by the [New York] statute ... as causing the death of another person with intent to do so. The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred in order to constitute the crime. . . . “. . . [The] affirmative defense [of extreme emotional disturbance] . . . does not serve to negative any facts of the crime which the State is to prove in order to convict of murder.” Ante, at 205—206, 206-207. PATTERSON v. NEW YORK 223 197 Powell, J., dissenting semblance to the basic rationale of that decision.6 But this is not the cause of greatest concern. The test the Court today establishes allows a legislature to shift, virtually at will, the burden of persuasion with respect to any factor in a criminal case, so long as it is careful not to mention the nonexistence of that factor in the statutory language that defines the crime. The sole requirement is that any references to the factor be confined to those sections that provide for an affirmative defense.7 Perhaps the Court’s interpretation of Winship is consistent with the letter of the holding in that case. But little of the spirit survives. Indeed, the Court scarcely could distinguish this case from Mullaney without closing its eyes to the constitutional values for which Winship stands. As Mr. Justice Harlan observed in Winship, “a standard of proof represents an attempt to instruct the factfinder concerning the degree of 6 In Mullaney we made it clear that Winship is not “limited to a State s definition of the elements of a crime.” 421 U. S., at 699 n. 24. 7 Although the Court never says so explicitly, its new standards appear to be designed for application to the language of a criminal statute on its face, regardless of how the state court construes the statute. The Court, in explaining Mullaney, persistently states that in Maine malice “was part of the definition of that crime [murder],” ante, at 216, even though the Maine Supreme Judicial Court, construing its own statute, had ruled squarely to the contrary. See n. 4, supra. In the usual case it is well established that an authoritative construction by the State’s highest court “puts [appropriate] words in the statute as definitely as if it had been so amended by the legislature.” Winters v. New York, 333 U. S. 507, 514 (1948). See Mullaney, supra, at 690-691; Hebert v. Louisiana, 272 U. S. 312, 316-317 (1926); Murdock v. Memphis, 20 Wall. 590, 635 (1875). Why an apparent exception should be engrafted on that doctrine today goes unexplained. The result, under the Court’s holding, is that only the legislature can remedy any defects that come to light as a result of the Court’s decision. No matter how clear the legislative intent that defendants bear the burden of persuasion on an issue—an ultimate result the Court approves—state courts may not effectuate that intent until the right verbal formula appears in the statute book. 224 OCTOBER TERM, 1976 Powell, J., dissenting 432U.S. confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” 397 U. S., at 370 (concurring opinion). See Speiser v. Randall, 357 U. S. 513, 525-526 (1958). Explaining Mullaney, the Court says today, in effect, that society demands full confidence before a Maine factfinder determines that heat of passion is missing—a demand so insistent that this Court invoked the Constitution to enforce it over the contrary decision by the State. But we are told that society is willing to tolerate far less confidence in New York’s factual determination of precisely the same functional issue. One must ask what possibly could explain this difference in societal demands. According to the Court, it is because Maine happened to attach a name—“malice aforethought”—to the absence of heat of passion, whereas New York refrained from giving a name to the absence of extreme emotional disturbance. See 39 N. Y. 2d, at 313, 347 N. E. 2d, at 914 (Cooke, J., dissenting). With all respect, this type of constitutional adjudication is indefensibly formalistic. A limited but significant check on possible abuses in the criminal law now becomes an exercise in arid formalities. What Winship and Mullaney had sought to teach about the limits a free society places on its procedures to safeguard the liberty of its citizens becomes a rather simplistic lesson in statutory draftsmanship. Nothing in the Court’s opinion prevents a legislature from applying this new learning to many of the classical elements of the crimes it punishes.8 It would be preferable, if the Court has found 8 For example, a state statute could pass muster under the only solid standard that appears in the Court’s opinion if it defined murder as mere physical contact between the defendant and the victim leading to the victim’s death, but then set up an affirmative defense leaving it to the defendant to prove that he acted without culpable mens rea. The State, in other words, could be relieved altogether of responsibility for proving anything regarding the defendant’s state of mind, provided only that the face of the statute meets the Court’s drafting formulas. To be sure, it is unlikely that legislatures will rewrite their criminal laws PATTERSON v. NEW YORK 225 197 Powell, J., dissenting reason to reject the rationale of Winship and Mullaney, simply and straightforwardly to overrule those precedents. The Court understandably manifests some uneasiness that its formalistic approach will give legislatures too much latitude in shifting the burden of persuasion. And so it issues a warning that “there are obviously constitutional limits beyond which the States may not go in this regard.” Ante, at 210: The Court thereby concedes that legislative abuses may occur and that they must be curbed by the judicial branch. But if the State is careful to conform to the drafting formulas articulated today, the constitutional limits are anything but “obvious.” This decision simply leaves us without a conceptual framework for distinguishing abuses from legitimate legislative adjustments of the burden of persuasion in criminal cases.9 II It is unnecessary for the Court to retreat to a formalistic test for applying Winship. Careful attention to the Mullaney decision reveals the principles that should control in this and like cases. Winship held that the prosecution must bear the burden of proving beyond a reasonable doubt “ ‘the existence of every fact necessary to constitute the crime charged.’ ” 397 IT. S., at 363, quoting Davis v. United States, 160 U. S. 469, 493 (1895). In Mullaney we concluded that heat of passion was one of the “facts” described in Winship—that is, a in this extreme form. The Court seems to think this likelihood of restraint is an added reason for limiting review largely to formalistic examination. Ante, at 211. But it is completely foreign to this Courts responsibility for constitutional adjudication to limit the scope of judicial review because of the expectation—however reasonable—that legislative bodies will exercise appropriate restraint. 91 have no doubt that the Court would find some way to strike down a formalistically correct statute as egregious as the one hypothesized in n. 8, supra. Cf. Morissette v. United States, 342 U. S. 246, 250-263 (1952). But today’s ruling suggests no principled basis for concluding that such a statute falls outside the “obvious” constitutional limits the Court invokes. 226 OCTOBER TERM, 1976 Powell, J., dissenting 432 U. S. factor as to which the prosecution must bear the burden of persuasion beyond a reasonable doubt. 421 U. S., at 704. We reached that result only after making two careful inquiries. First, we noted that the presence or absence of heat of passion made a substantial difference in punishment of the offender and in the stigma associated with the conviction. Id., at 697-701. Second, we reviewed the history, in England and this country, of the factor at issue. Id., at 692-696. Central to the holding in Mullaney was our conclusion that heat of passion “has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide.” Id., at 696. Implicit in these two inquiries are the principles that should govern this case. The Due Process Clause requires that the prosecutor bear the burden of persuasion beyond a reasonable doubt only if the factor at issue makes a substantial difference in punishment and stigma. The requirement of course applies a fortiori if the factor makes the difference between guilt and innocence. But a substantial difference in punishment alone is not enough. It also must be shown that in the Anglo-American legal tradition10 the factor in question historically has held that level of importance.11 If either branch 10 Cf. Brinegar v. United States, 338 U. S. 160,174 (1949): “Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.” 11 As the Court acknowledges, ante, at 207-208, n. 10, the clear trend over the years has been to require the prosecutor to carry the burden of persuasion with respect to all important factors in a criminal case, including traditional affirmative defenses. See W. LaFave & A. Scott, Criminal Law 50 (1972); C. McCormick, Evidence § 341, pp. 800-802 (1972). PATTERSON v. NEW YORK 227 197 Powell, J., dissenting of the test is not met, then the legislature retains its traditional authority over matters of proof. But to permit a shift in the burden of persuasion when both branches of this test are satisfied would invite the undermining of the presumption of innocence, “that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ ” In re Winship, 397 U. S., at 363, quoting from Coffin v. United States, 156 U. S. 432,453 (1895). See Cool v. United States, 409 U. S. 100, 104 (1972); Ivan V. v. City of New York, 407 U. S. 203, 204 (1972); Lego v. Twomey, 404 U. S. 477, 486-487 (1972); Morissette v. United States, 342 U. S. 246, 275 (1952); Bailey v. Alabama, 219 U. S. 219, 236 (1911); Davis n. United States, supra. This is not a test that rests on empty form, for “Winship is concerned with substance rather than . . . formalism.” Mullaney v. Wilbur, 421 U. S., at 699. I hardly need add that New York’s provisions allocating the burden of persuasion as to “extreme emotional disturbance” are unconstitutional when judged by these standards. “Extreme emotional disturbance” is, as the Court of Appeals recognized, the direct descendant of the “heat of passion” factor considered at length in Mullaney. I recognize, of course, that the differences between Maine and New York law are not unimportant to the defendant; there is a somewhat broader opportunity for mitigation. But none of those distinctions is relevant here. The presence or absence of extreme emotional disturbance makes a critical difference in punishment and stigma, and throughout our history the resolution of this issue of fact, although expressed in somewhat different terms, has distinguished manslaughter from murder. See 4 W. Blackstone, Commentaries *190-193, 198-201. Ill The Court beats its retreat from Winship apparently because of a concern that otherwise the federal judiciary will in 228 OCTOBER TERM, 1976 Powell, J., dissenting 432 U. S. trude too far into substantive choices concerning the content of a State’s criminal law.12 The concern is legitimate, see generally Powell v. Texas, 392 U. S. 514, 533-534 (1968) (plurality opinion); Leland v. Oregon, 343 U. S. 790, 803 (1952)’ (Frankfurter, J., dissenting), but misplaced. Winship and Mullaney are no more than what they purport to be: decisions addressing the procedural requirements that States must meet to comply with due process. They are not outposts for policing the substantive boundaries of the criminal law. The Winship/Mullaney test identifies those factors of such importance, historically, in determining punishment and stigma that the Constitution forbids shifting to the defendant the burden of persuasion when such a factor is at issue. Winship and Mullaney specify only the procedure that is required when a State elects to use such a factor as part of its substantive criminal law. They do not say that the State must elect to use it. For example, where a State has chosen to retain the traditional distinction between murder and manslaughter, as have New York and Maine, the burden of persuasion must remain on the prosecution with respect to the distinguishing factor, in view of its decisive historical importance. But nothing in Mullaney or Winship precludes a State from abolishing the distinction between murder and manslaughter and treating all unjustifiable homicide as murder.13 In this sig 12 See Low & Jeffries, DICTA: Constitutionalizing the Criminal Law?, 29 Va. Law Weekly, No. 18, p. 1 (1977); Tushnet, Constitutional Limitation of Substantive Criminal Law: An Examination of the Meaning of Mullaney v. Wilbur, 55 B. U. L. Rev. 775 (1975). 13 Perhaps under other principles of due process jurisprudence, certain factors are so fundamental that a State could not, as a substantive matter, refrain from recognizing them so long as it chooses to punish given conduct as a crime. Cf. Bailey v. Alabama, 219 U. S. 219 (1911) (holding a criminal-law presumption invalid procedurally and also finding a substantive defect under the Thirteenth Amendment and the Anti-Peonage Act). But substantive limits were not at issue in Winship or Mullaney, and they are not at issue here. Even if there are no constitutional limits preventing the State, for PATTERSON v. NEW YORK 229 197 Powell, J., dissenting nificant respect, neither Winship nor Mullaney eliminates the substantive flexibility that should remain in legislative hands. Moreover, it is unlikely that more than a few factors—although important ones—for which a shift in the burden of persuasion seriously would be considered will come within the Mullaney holding. With some exceptions, then, the State has the authority “to recognize a factor that mitigates the degree of criminality or punishment” without having “to prove its nonexistence in each case in which the fact is put in issue.” Ante, at 209. New ameliorative affirmative defenses,14 about example, from treating all homicides as murders punishable equally regardless of mitigating factors like heat of passion or extreme emotional disturbance, the Winship/Mullaney rule still plays an important role. The State is then obliged to make its choices concerning the substantive content of its criminal laws with full awareness of the consequences, unable to mask substantive policy choices by shifts in the burden of persuasion. See Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 894 (1968) (“The burden of persuasion has proved to be a subtle, low-visibility tool for adjusting the interests of competing classes of litigants"). The political check on potentially harsh legislative action is then more likely to operate. Cf. Tot v. United States, 319 U. S. 463, 472 (1943); United States v. Romano, 382 U. S. 136 (1965). Romano involved a challenge to a federal statute that authorized the jury to infer possession, custody, and control of an illegal still from mere presence at the site. The Government contended that the statute should be sustained since it was merely Congress’ way of broadening the substantive provisions in order to make a crime of mere presence. The Court rejected this argument, serving notice that Congress could not work a substantive change of that magnitude in such a disguised form. Id., at 144. See Ashford & Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L. J. 165, 177-178 (1969); Osenbaugh, The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 429, 461 (1976). 14 Numerous examples of such defenses are available: New York subjects an armed robber to lesser punishment than he would otherwise receive if he proves by a preponderance of the evidence that the gun he used was unloaded or inoperative. N. Y. Penal Law §160.15 (McKinney 1975). A number of States have ameliorated the usual operation of statutes 230 OCTOBER TERM, 1976 Powell, J., dissenting 432 U. S. which the Court expresses concern, generally remain undisturbed by the holdings in Winship and Mullaney—and need not be disturbed by a sound holding reversing Patterson’s conviction.15 Furthermore, as we indicated in Mullaney, 421 U. S., at 701-702, n. 28, even as to those factors upon which the prosecution must bear the burden of persuasion, the State retains an important procedural device to avoid jury confusion and prevent the prosecution from being unduly hampered. The State normally may shift to the defendant the burden of production,16 that is, the burden of going forward with sufficient punishing statutory rape, recognizing a defense if the defendant shows that he reasonably believed his partner was of age. E. g., Ky. Rev. Stat. Ann. §§500.070, 510.030 (1975); Wash. Rev. Code Ann. §9.79.160 (2) (Supp. 1975). Formerly the age of the minor was a strict-liability element of the crime. The Model Penal Code also employs such a shift in the burden of persuasion for a limited number of defenses. For example, a corporation can escape conviction of an offense if it proves by a preponderance of the evidence that the responsible supervising officer exercised due diligence to prevent the commission of the offense. § 2.07 (5) (Proposed Official Draft 1962). 15 A number of commentators have suggested that the Constitution permits the States some latitude in adjusting the burden of persuasion with respect to new ameliorative affirmative defenses that result from legislative compromise, but not with respect to other factors. See, e. g., W. LaFave & A. Scott, supra, n. 11, at 49; 1 National Commission on Reform of Federal Criminal Laws, Working Papers 18-19 (1970); ALT, Model Penal Code § 1.13, Comment, p. 113 (Tent. Draft No. 4, 1955) (quoted, ante, at 209 n. 11); Note, 51 Wash. L. Rev. 953, 964 (1976); Osenbaugh, supra, n. 13, at 459-467. Cf. Fletcher, supra, n. 13, at 928-929. 16 There are outer limits on shifting the burden of production to a defendant, limits articulated in a long line of cases in this Court passing on the validity of presumptions. Most important are the “rational connection” requirement of Mobile, J. & K. C. R. Co. v. Tumipseed, 219 U. S. 35, 43 (1910), and Bailey v. Alabama, supra, at 238-239, and also the “comparative convenience” criterion of Morrison v. California, PATTERSON v. NEW YORK 231 197 Powell, J., dissenting evidence “to justify [a reasonable] doubt upon the issue.” 17 ALI, Model Penal Code § 1.13, Comment, p. 110 (Tent. Draft No. 4, 1955). If the defendant’s evidence does not cross this threshold, the issue—be it malice, extreme emotional disturbance, self-defense, or whatever—will not be submitted to the jury.18 See Sansone v. United States, 380 U. S. 343, 349 (1965); Stevenson v. United States, 162 U. S. 313, 314— 316 (1896). Ever since this Court’s decision in Davis v. United States, 160 U. S. 469 (1895), federal prosecutors have borne the burden of persuasion with respect to factors like insanity, self-defense, and malice or provocation, once the defendant has carried this burden of production. See, e. g., Blake v. United States, 407 F. 2d 908, 910-911 (CA5 1969) (en banc) (insanity); Frank v. United States, 42 F. 2d 623, 629 (CA9 1930) (self-defense); United States v. Alexander, 152 U. S. App. D. C. 371, 389-395,471 F. 2d 923, 941-947, cert, denied sub nom. Murdock v. United States, 409 U. S. 1044 (1972) (provocation). I know of no indication that this 291 U. S. 82 (1934). See also, e. g., Tot v. United States, supra, at 467-468; Speiser v. Randall, 357 U. S. 513, 523-524 (1958); Leary v. United States, 395 U. S. 6, 33-34 (1969); Barnes v. United States, 412 U. S. 837, 843 (1973). Caution is appropriate, however, in generalizing about the application of any of these cases to a given procedural device, since the term “presumption” covers a broad range of procedural mechanisms having significantly different consequences for the defendant. See McCormick, n. 11, supra, at 802-806; Evans v. State, 28 Md. App. 640, 675-678, 349 A. 2d 300, 324-325 (1975). 17 This does not mean that the defendant must introduce evidence in every case. In some instances the prosecution’s case may contain sufficient evidence in support of the defendant’s position to generate a jury issue. 18 On many occasions this Court has sustained a trial court’s refusal to submit an issue to the jury in a criminal case when the defendant failed to meet his burden of production. See, e. g., Sparj v. United States, 156 U. S. 51, 63-64 (1895); Andersen v. United States, 170 U. S. 481, 510-511 (1898); Battle v. United States, 209 U. S. 36, 38 (1908). Cf. Galloway v. United States, 319 U. S. 372, 395 (1943). 232 OCTOBER TERM, 1976 Powell, J., dissenting 432 U. S. practice has proven a noticeable handicap to effective law enforcement.19 To be sure, there will be many instances when the Winship/ Mullaney test as I perceive it will be more difficult to apply than the Court’s formula. Where I see the need for a careful and discriminating review of history, the Court finds a bright-line standard that can be applied with a quick glance at the face of the statute. But this facile test invites tinkering with the procedural safeguards of the presumption of innocence, an invitation to disregard the principles of Winship that I would not extend. 19 Dean McCormick emphasized that the burden of production is “a critical and important mechanism in a jury trial.” In his view, “this mechanism has far more influence upon the final outcome of cases than does the burden of persuasion, which has become very largely a matter of the technique of the wording of instructions to juries.” C. McCormick, Evidence § 307, pp. 638-639, and n. 2 (1st ed. 1954). Cf. Fletcher, supra, n. 13, at 930. HANKERSON v. NORTH CAROLINA 233 Syllabus HANKERSON v. NORTH CAROLINA CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA No. 75-6568. Argued February 23, 1977—Decided June 17, 1977 Prior to the decision in Mvllaney n. Wilbur, 421 U. S. 684, petitioner was convicted in a North Carolina court of second-degree murder over his claim that he acted in self-defense. The trial judge had instructed the jury that if the State proved beyond a reasonable doubt that petitioner intentionally killed the victim with a deadly weapon the law raised presumptions that the killing was unlawful and that it was done with malice, and that in order to excuse his act petitioner had to prove to the jury’s “satisfaction” that he acted in self-defense. The North Carolina Supreme Court affirmed over petitioner’s objection to such instructions, refusing to give retroactive application to Mvllaney. Although holding that a burden to “satisfy” a jury of a fact is not “significantly less” than persuasion by a preponderance of the evidence and that therefore the charge was erroneous under Mvllaney, which required the State to establish all elements of a criminal offense beyond a reasonable doubt and which invalidated presumptions that shifted the burden of proving such elements to the defendant, the court concluded that the retroactive application of Mvllaney would have a devastating impact on the administration of justice. Held: 1. The North Carolina Supreme Court erred in declining to hold the Mvllaney rule retroactive. Ivan V. v. City of New York, 407 U. S. 203. While in deciding whether a new constitutional rule is to be applied retroactively it is proper to consider the State’s reliance on the old rule and the impact of the new rule on the administration of justice if the degree to which the new rule enhances the integrity of the factfinding process is sufficiently small, “ ‘where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect.’ ” Id., at 204 (emphasis supplied). The Mvllaney rule falls within this latter category, since it was designed to diminish the probability that an innocent person would be convicted and thus to overcome an aspect of a criminal trial that “substantially impairs its truthfinding function.” Pp. 240-244. 2. Nor can the North Carolina Supreme Court’s judgment be affirmed on the ground that, even if Mvllaney is applied retroactively, the trial 234 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. court’s instructions left the burden of disproving self-defense beyond a reasonable doubt on the prosecution, or at least did not require the accused to prove self-defense by a preponderance of the evidence, and thus did not violate the Mullaney rule. The North Carolina Supreme Court construed the instructions to the contrary, and since such interpretation is a matter of state law, there is no basis for disagreeing with it. Pp. 244r-245. 288 N. C. 632, 220 S. E. 2d 575, reversed. White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Blackmun, and Stevens, JJ., joined. Blackmun, J., filed a concurring statement, in which Burger, C. J., joined, post, p. 245. Marshall, J., post, p. 245, and Powell, J., post, p. 246, filed opinions concurring in the judgment. Rehnquist, J., took no part in the consideration or decision of the case. Lawrence G. Diedrick argued the cause and filed briefs for petitioner. Charles M. Hensey, Assistant Attorney General of North Carolina, argued the cause for respondent. With him on the brief was Rufus L. Edmisten, Attorney General. Mr. Justice White delivered the opinion of the Court. The issue in this case is whether the North Carolina Supreme Court correctly declined to give retroactive application to this Court’s decision in Mullaney v. Wilbur, 421 U. S. 684 (1975). I Petitioner Hankerson was convicted after a jury trial of second-degree murder and sentenced to 20-25 years in prison. It was conceded at his trial that petitioner killed a man named Gregory Ashe by shooting him through the heart with a pistol at 11 at night on September 29, 1974. The issue at trial was whether petitioner acted in self-defense. The relevant evidence is described below. Ashe and two friends, Dancy and Whitley, were, according to the testimony of the latter two, driving around in Ashe’s HANKERSON v. NORTH CAROLINA 235 233 Opinion of the Court car on the evening of September 29. They went to a pool hall shortly before 11 p. m. and, on discovering that the pool hall was closed, returned to Ashe’s car. The car would not start. Ashe asked his companions for a light for his cigarette, but neither had one. Whitley began walking to his home, which was one block away. Ashe and Dancy followed him. Then Ashe decided to return to his car to try to “crank” it. Dancy, according to his and Whitley’s testimony, ran after Whitley. Both testified that they then heard a gunshot, heard Ashe yell that he had been shot, and saw petitioner’s car speed away. Ashe’s body was not found for an hour, and when it was, a fully burned cigarette was lodged between two fingers. Petitioner testified at trial that he had been driving his car very slowly because of holes in the road when someone asked him for a light. Through his mirror he saw two men. One, i. e., Ashe, walked up to the driver’s window. Petitioner pushed his cigarette lighter in and gave it to Ashe. When the lighter was returned, petitioner felt the car shake and saw the other man at the other door, which was locked. Ashe then grabbed petitioner’s shoulder with his right hand, and put a knife to petitioner’s throat with his left hand. Petitioner then grabbed his gun and shot Ashe. The knife fell inside the car. Petitioner then drove away. Shortly after the murder, the knife was recovered by a policeman from petitioner’s car. Petitioner readily admitted the shooting at that time and told a story to the policeman which was roughly equivalent to his trial testimony. The State then introduced evidence tending to prove that Ashe had never been seen with a knife of the type found in petitioner’s car; that petitioner falsely claimed to the policeman—who questioned him shortly after the shooting—no longer to have possession of the gun; that Ashe was right handed, even though petitioner testified that the knife was wielded with Ashe’s left hand; and that although petitioner had told police that Ashe had left a grease mark on his shirt 236 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. when Ashe grabbed him, Ashe had no grease on his hand when his body was examined. The State argued in its summation that Ashe would not still have had his cigarette in his hand when shot if he had, as petitioner testified, used two hands to attack petitioner. The jury was instructed, in part, as follows: “I charge that for you to find the defendant guilty of second degree murder, the State must prove two things beyond a reasonable doubt, first, that the defendant intentionally and without justification or excuse and with malice shot Gregory Ashe with a deadly weapon. . . 1 App. 9 (emphasis added). The judge instructed the jury that self-defense constituted an excuse for an intentional killing.2 However, he instructed the jury: “If the State proves beyond a reasonable doubt or it is admitted that the defendant intentionally killed Gregory Ashe with a deadly weapon, or intentionally inflicted a wound upon Gregory Ashe with a deadly weapon, that proximately caused his death, the law raises two presumptions; first, that the killing was unlawful, and second, that it was done with malice. . . . Then there will be some other things I will charge you about, but, nothing else appearing, if you are satisfied of those two things beyond a reasonable doubt then you would find the defendant guilty of second degree murder. . [I]n order to excuse his act altogether on the grounds of self-defense, the defendant must prove not beyond a reasonable doubt but simply to your satisfaction 1 The second requirement defined by the trial court was that the shooting was the proximate cause of death. 2 “And in order to excuse his act altogether on the grounds of selfdefense . . . App. 10 (emphasis added). Cf. Zd., at 11, 14-15. HANKERSON v. NORTH CAROLINA 237 233 Opinion of the Court that he acted in self-defense.” Id., at 10 (emphasis added).3 The judge proceeded to instruct on the elements of selfdefense.4 No objection was made to any of these instructions 3 There was a similar instruction on the defendant’s burden to satisfy the jury that he acted without malice, that is, that he acted in the heat of passion on sudden provocation. This instruction was challenged in the North Carolina Supreme Court, along with the instruction on self-defense; but we do not reach the question because the state court, although ruling on it as a matter of its own convenience, held that the issue had not been “properly presented” to it in the absence of any evidence that the killing was in the heat of passion on sudden provocation. 288 N. C. 632, 648, 220 S. E. 2d 575, 587 (1975). Mullaney v. Wilbur, 421 U. S. 684 (1975), does not forbid States from requiring the criminal defendant to present at least some evidence to raise a factual issue with respect to heat of passion or self-defense. 4 “I want to instruct you that to excuse this killing entirely on the grounds of self-defense the defendant must satisfy you of four things: first, that it appeared to the defendant and he believed it to be necessary to shoot Gregory Ashe in order to save himself from death or great bodily harm. The defendant testified that at the time he shot Gregory Ashe or shot at Gregory Ashe that Gregory Ashe was holding a knife at his throat and had his arm around him, and he contends that that should satisfy you that he believed it was necessary to shoot him in order to save himself from death or great bodily harm. The second thing that you must be satisfied of—excuse me—that the defendant must satisfy you of is this, that the circumstances as they appeared to him at the time were sufficient to create such belief in the mind of a person of ordinary firmness, and it is for you, the jury, to determine the reasonableness of the defendant’s belief from the circumstances as they appeared to him at the time. In making this determination you should consider the circumstances as you find them to have existed from the evidence, including the size, age and strength of the defendant as compared to Gregory Ashe, the fierceness of the assault, if any, upon the defendant, whether or not Gregory Ashe had a weapon in his possession. And the third thing the defendant must satisfy you of is that he was not the aggressor. If he voluntarily and without provocation entered into a fight with Gregory Ashe, he was the aggressor, unless he thereafter attempted to abandon the fight and gave notice to Gregory Ashe 238 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. at the trial, and the jury found petitioner guilty of second-degree murder. Petitioner objected to the above-quoted portions of the instructions to the jury for the first time on direct review in the Supreme Court of North Carolina. He argued that the instructions placed a burden on him to persuade the jury that he was not guilty, by proving that the killing was not unlawful; and he» claimed that the Due Process Clause of the Fourteenth Amendment as construed in Mullaney v. Wilbur, 421 U. S. 684 (1975), required that the State persuade the jury beyond a reasonable doubt as to all elements of the crime, including that of unlawfulness—here the absence of self-defense. The North Carolina Supreme Court agreed that unlawfulness was an essential ingredient of the crime, 288 N. C. 632, 648-652, 220 S. E. 2d 575, 587-589 (1975), and ruled that under this Court’s recently decided cases, the Due Process Clause required that the jury be instructed in a case such as this that the State must persuade it beyond a reasonable doubt that the killing was not in self-defense. Under the presumptions contained in the trial judge’s instructions, once an intentional killing with a deadly weapon had been shown, petitioner had the burden to “satisfy” the jury that he had acted in self-defense. The North Carolina Supreme Court held that a burden to “satisfy” the jurors of a fact is not “significantly less” than a burden to persuade them of the fact by a preponderance of the evidence. The court therefore held that the charge was erroneous under this Court’s decision in Mullaney v. Wilbur, supra, which required the that he was doing so. One enters a fight voluntarily if he uses towards his opponent abusive language which considering all the circumstances is calculated and intended to bring on a fight. And the fourth thing that the defendant must satisfy you of is that he did not use excessive force, that is, more force than reasonably appeared to be necessary to the defendant at the time.” App. 11-12. (Emphasis added.) HANKERSON v. NORTH CAROLINA 239 233 Opinion of the Court State to establish all elements of a criminal offense beyond a reasonable doubt and which, despite longstanding practice to the contrary—as in North Carolina since 1864—invalidated presumptions that shifted the burden of proof with respect to such elements to the defendant. The North Carolina Supreme Court stated the rule for future cases: “If there is evidence in the case of all the elements of selfdefense, the mandatory presumption of unlawfulness disappears but the logical inferences from the facts proved may be weighed against this evidence. If upon considering all the evidence, including the inferences and evidence of self-defense, the jury is left with a reasonable doubt as to the existence of unlawfulness it must find the defendant not guilty.” 288 N. C., at 651-652, 220 S. E. 2d, at 589. Petitioner’s conviction was nevertheless affirmed, for it was concluded that the constitutional rule announced in Mullaney was inapplicable in this case because it was handed down after the conclusion of petitioner’s trial.5 In declining to apply Mullaney v. Wilbur to trials occurring before the date on which it was decided, the North Carolina Supreme Court recognized that in Ivan V. v. City of New York, 407 U. S. 203 (1972), we held fully retroactive our earlier decision in In re Winship, 397 U. S. 358 (1970), to the effect that the Federal Constitution requires the States to apply the reasonable-doubt standard of proof in juvenile proceedings. It also recognized that, as in Ivan V., it was dealing with a constitutional rule the primary purpose of which was to prevent the erroneous conviction of innocent persons. Even so, the court concluded that the retroactive application of Mullaney would have a devastating impact on the administration of justice in this country in view of the number of murderers who would be released—many of whom could not now be retried—in the $ Mvllaney was decided on June 9, 1975. Hankerson’s trial was on November 21, 1974. 240 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. eight States that the court identified as placing the burden of proving self-defense on the defendant. Accordingly, it declined to apply Mullaney to trials occurring before the date on which it was decided. This Court granted Hankerson’s petition for a writ of certiorari, which raised the single question whether Mullaney should be held retroactive. 429 U. S. 815. The State of North Carolina has filed an answering brief in which it argues (1) that the North Carolina Supreme Court was correct in holding Mullaney not retroactive; and (2) that in any event the judgment below should be affirmed because the instructions given in this case did leave the burden of disproving self-defense beyond a reasonable doubt on the prosecution, or at least did not require the accused to prove self-defense by a preponderance of the evidence in contravention of Mullaney. These are the only two issues before this Court, and we treat them in order.6 II The Supreme Court of North Carolina erred in declining to hold retroactive the rule in Mullaney v. Wilbur, supra. In Ivan V. v. City of New York, supra, at 204-205, this Court addressed the question whether our decision in In re Winship, supra—holding the reasonable-doubt standard applicable to 6 The State as respondent may make any argument presented below that supports the judgment of the lower court. Massachusetts Mutual Ins. Co. v. Ludwig, 426 U. S. 479 (1976). The State does not argue, as an alternative ground in support of the judgment below, that despite Mullaney v. Wilbur, it is constitutionally permissible for a State to treat self-defense as an affirmative defense that the prosecution need not negative by proof beyond a reasonable doubt. Therefore, we do not address that issue in this case. The Court has said: “We do not reach for constitutional questions not raised by the parties. The fact that the issue was mentioned in argument does not bring the question properly before us.” Mazer n. Stein, 347 U. S. 201, 206 n. 5. (1954) (citations omitted). See generally R. Stern & E. Gressman, Supreme Court Practice, § 6.37 (4th ed. 1969) and cases there cited. HANKERSON v. NORTH CAROLINA 241 233 Opinion of the Court state juvenile proceedings—was to be applied retroactively. The Court there said: “ ‘Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.’ Williams v. United States, 401 U. S. 646, 653 (1971). See Adams v. Illinois, 405 U. S. 278, 280 (1972); Roberts v. Russell, 392 U. S 293 295 (1968). “Winship expressly held that the reasonable-doubt standard ‘is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the adminis-tration of our criminal law”. . . . “Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt.” To this end, the reasonable-doubt standard is indispensable, for it “impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.” ’ 397 U. S., at 363-364. “Plainly, then, the major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Winship was to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect.” 407 U. S., at 204-205. 242 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. Ivan V. controls this case. In Mullaney v. Wilbur, as in In re Winship, the Court held that due process requires the States in some circumstances to apply the reasonable-doubt standard of proof rather than some lesser standard under which an accused would more easily lose his liberty. In Mullaney, as in Winship, the rule was designed to diminish the probability that an innocent person would be convicted and thus to overcome an aspect of a criminal trial that “substantially impairs the truth-finding function.” Respondent and the North Carolina Supreme Court seek to avoid the force of Ivan V. on two grounds. First, the North Carolina Supreme Court thought that the State had justifiably relied upon the validity of the burden-shifting presumptions flowing from intentional killing with a deadly weapon before Mullaney v. Wilbur, whereas the State in Ivan V. should have known, even before Winship, that the reasonable-doubt standard of proof would be held applicable to juvenile proceedings. Second, it viewed the retroactive impact of the Mullaney rule on the administration of justice as far more devastating than the retroactive impact of Winship. Winship involved only juveniles, while Mullaney would affect the convictions of murderers. Respondent recognizes that Ivan V. did not rely on the absence of reliance by the State on pre-Winship law or on the absence of a devastating impact on the administration of justice. However, respondent claims that in deciding whether a new constitutional rule is to be applied retroactively, the Court has traditionally inquired not only, as in Ivan V., into the purpose of the rule but also into the extent of the State’s justified reliance on the old rule and the impact that retroactive application of the new rule would have on the administration of justice. See, e. g., Stovall v. Denno, 388 U. S. 293 (1967); Johnson v. Nevo Jersey, 384 U. S. 719 (1966); Tehan v. United States ex rel. Shott, 382 U. S. 406 (1966); Linkletter v. Walker, 381 U. S. 618 (1965). It claims that HANKERSON v. NORTH CAROLINA 243 233 Opinion of the Court even where the purpose of the new rule is to improve the “integrity of the factfinding process,” the rule has been held nonretroactive when the impact of the new rule on the administration of justice would otherwise be devastating and when the States have justifiably relied on the old rule. See, e. g., Stovall v. Denno, supra (holding nonretroactive the requirement of United States v. Wade, 388 U. S. 218 (1967), that counsel be present at a pretrial lineup); Adams v. Illinois, 405 U. S. 278 (1972) (holding nonretroactive the rule of Coleman v. Alabama, 399 U. S. 1 (1970), that counsel be present at a preliminary hearing). The force of Ivan V. may not be avoided so easily. It is true that we have said that the question of whether the purpose of a new constitutional rule is to enhance the integrity of the factfinding process is a question of “degree,” Johnson v. New Jersey, supra, at 729; and when the degree to which the rule enhances the integrity of the factfinding process is sufficiently small, we have looked to questions of reliance by the State on the old rule and the impact of the new rule on the administration of justice in deciding whether the new rule is to be applied retroactively. Stovall v. Denno, supra; Adams v. Illinois, supra; DeStejano v. Woods, 392 U. S. 631 (1968). But we have never deviated from the rule stated in Ivan V. that “ ‘[w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect.’” 407 U. S., at 204 (emphasis added). The reasonable-doubt standard of proof is as “substantial”7 a 7 Respondent also argues that the results in very few trials in North Carolina would have been altered by a change in the jury instructions on self-defense because juries do not understand the confusing instructions that were given in this and like cases in the past. Winship is said to be distinguishable because the factfinding in juvenile cases is performed by 244 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. requirement under Mullaney as it was in Winship. Respondent’s attempt to distinguish Ivan V. is without merit.8 Ill Respondent next argues in support of the judgment below that the instruction in this case—that the defendant must “satisfy” the jury that he acted in self-defense—is the equivalent of an instruction that the jury should acquit if it entertains a reasonable doubt on the subject, or is so nearly the equivalent of such an instruction that it is not in violation of the rule announced in Mullaney, where the burden impermissibly placed on the defendant was to persuade the jury by a preponderance of the evidence. Respondent’s argument is squarely contrary to the construction given by the North Carolina Supreme Court to the jury charge in this case. That court concluded that a burden to “satisfy” the jury of . selfdefense places a burden on a defendant “no greater and at the same time one not significantly less than persuasion by a preponderance of the evidence.” 288 N. C., at 648, 220 S. E. 2d, at 587. The Court has no basis for disagreeing with this interpretation of the charge, which is essentially a question of a judge. We do not so readily assume that juries fail to understand the instructions they have been receiving in North Carolina. See In re Winship, 397 L. S. 358, 369-370 (1970) (Harlan, J., concurring). 8 Moreover, we are not persuaded that the impact on the administration of justice in those States that utilize the sort of burden-shifting presumptions involved in this case will be as devastating as respondent asserts. If the validity of such burden-shifting presumptions were as well settled in the States that have them as respondent asserts, then it is unlikely that prior to Mullaney many defense lawyers made appropriate objections to jury instructions incorporating those presumptions. Petitioner made none here. The North Carolina Supreme Court passed on the validity of the instructions anyway. The States, if they wish, may be able to insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error. See, e. g., Fed. Rule Crim. Proc. 30. HANKERSON v. NORTH CAROLINA 245 233 Marshall, J., concurring in judgment state law. Since the issue of whether due process requires the prosecution to disprove self-defense beyond a reasonable doubt under North Carolina law was not raised by either party in this case, we decline to consider it now. Reversed. Mr. Justice Rehnquist took no part in the consideration or decision of this case. Mr. Justice Blackmun, with whom The Chief Justice joins, concurring. I join the opinion of the Court. I wish to emphasize, however, that our decision not to consider the correctness of the North Carolina Supreme Court’s ruling on the self-defense charge, see ante, at 240 n. 6, and this page, does not in any way preclude that court from re-examining its holding in petitioner’s case on remand, in light of today’s decision in Patterson v. New York, ante, p. 197. Mr. Justice Marshall, concurring in the judgment. In Williams v. United States, 401 U. S. 646, 665 (1971), I expressed the view that “a decision of this Court construing the Constitution should be applied retroactively to all cases involving criminal convictions not yet final at the time our decision is rendered.” For reasons persuasively stated at that time by Mr. Justice Harlan, Mackey v. United States, 401 U. S. 667, 675 (1971), I concluded that “cases still on direct review should receive full benefit of our supervening constitutional decisions.” Williams v. United States, supra, at 665. The Court’s more recent struggles with the problem of retroactivity, see, e. g., Adams v. Illinois, 405 U. S. 278 (1972) ; Michigan v. Payne, 412 U. S. 47 (1973), have done little to diminish “the inevitable costs and anomalies of the Court’s current approach.” Williams v. United States, supra, at 666. See Adams v. Illinois, supra, at 286 (Douglas, J., dissenting); 246 OCTOBER TERM, 1976 Powell, J., concurring in judgment 432 U. S. Michigan v. Payne, supra, at 59 (Marshall, J., dissenting). I remain committed to the approach outlined in my opinion in Williams* Since this case is here on direct review, I concur in the Court’s holding that the rule announced in Mullaney v. Wilbur, 421 U. S. 684 (1975), must be applied. I would add, in view of Mr. Justice Blackmun’s concurring statement, ante, p. 245, that irrespective of the applicability of Patterson v. New York, ante, p. 197, the North Carolina Supreme Court remains free to construe its own State Constitution to give individuals the same protection that it afforded them in its original decision in this case. See Man-son v. Brathwaite, ante, at 128-129, and n. 9 (Marshall, J., dissenting); United States v. Washington, 431 U. S. 181, 193-194 (1977) (Brennan, J., dissenting); Oregon n. Mathiason, 429 U. S. 492, 499, and n. 6 (1977) (Marshall, J., dissenting). Mr. Justice Powell, concurring in the judgment. Twelve years ago this Court decided Linkletter v. Walker, 381 U. S. 618 (1965). In the intervening years, we have struggled with the question of retroactivity when new constitutional rules affecting the administration of the criminal law have been adopted. See Beytagh, Ten Years of NonRetroactivity: A Critique and a Proposal, 61 Va. L. Rev. 1557, 1558-1596 (1975). The retroactivity doctrine that has emerged is far from satisfactory. Although on several occasions I have joined in its application, I am now persuaded that it would be wiser to adopt the view urged by Mr. Justice Harlan in Mackey v. United States, 401 U. S. 667, 675-702 (1971) (separate opinion). See also Desist v. United States, 394 U. S. 244, 256-269 (1969) (Harlan, J., dissenting); Williams *As I noted in Williams, I think there are persuasive reasons to use the Court’s traditional retroactivity analysis to decide that issue in cases arising on habeas corpus or other collateral-review proceedings. 401 U. S., at 666. HANKERSON v. NORTH CAROLINA 247 233 Powell, J., concurring in judgment v. United States, 401 U. S. 646, 665-666 (1971) (Marshall, J., concurring in part and dissenting in part). When the Court declines to hold a new constitutional rule retroactive, one chance beneficiary—the lucky individual whose case was chosen as the occasion for announcing the new principle—enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine. This hardly comports with the ideal of “administration of justice with an even hand.” Desist v. United States, supra, at 255 (Douglas, J., dissenting).1 On the other hand, the holding that a new constitutional principle is fully retroactive also may result in serious costs. Convictions long regarded as final must be reconsidered on collateral attack; frequently they must be overturned for reasons unrelated to the guilt or innocence of the prisoner, and in spite of good-faith adherence on the part of police, prosecutors, and courts to what they understood to be acceptable procedures. Society suffers either the burden on judicial and prosecutorial resources entailed in retrial or the miscarriage of justice that occurs when a guilty offender is set free only because effective retrial is impossible years after the offense. Reopening a case also carries disadvantages for those who have been convicted: “Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community.” Sanders v. United States, 373 U. S. 1, 24-25 (1963) (Harlan, J., dissenting). 1 In addition, as Mr. Justice Harlan noted, the typical nonretroactivity decision often places the Court in the role of a legislature rather than that of a judicial tribunal. Mackey n. United States, 401 U. S., at 677-681. 248 OCTOBER TERM, 1976 Powell, J., concurring in judgment 432 U. S. See Schneckloth v. Bustamonte, 412 U. S. 218, 262 (1973) (Powell, J., concurring). A different approach to the retroactivity question is available. Described in detail in Mr. Justice Harlan’s separate opinion in Mackey, supra, it contemplates, in rough outline, that courts apply a new rule retroactively in cases still pending on direct review, whereas cases on collateral review ordinarily would be considered in light of the rule as it stood when the conviction became final.2 Mr. Justice Harlan marshaled compellingly the reasoning supporting this view, 401 U. S., at 675-698, and for me to repeat the arguments here would be pointless. I note simply that this approach is closer to the ideal of principled, evenhanded judicial review than is the traditional retroactivity doctrine. At the same time it is more attuned to the historical limitations on habeas corpus, see Stone v. Powell, 428 U. S. 465 (1976), and to the importance of finality in a rational system of justice. See Blackledge v. Allison, 431 U. S. 63, 83 (1977) (Powell, J., concurring). The case before us is here on direct review. I therefore agree with the Court that Hankerson is entitled to retroactive application of the Mullaney rule. Accordingly, I concur .in the judgment. 2 Mr. Justice Harlan described two exceptions under which a new rule occasionally would be applied retroactively even on collateral review. Id., at 692-695. The case he makes for these exceptions is persuasive, but I save for another day when the question is squarely presented a decision on when such exceptions are appropriate. See also Williams v. United States, 401 U. S., at 666 (Marshall, J., concurring in part and dissenting in part). NORTHEAST MARINE TERMINAL CO. v. CAPUTO 249 Syllabus NORTHEAST MARINE TERMINAL CO., INC., et al. v. CAPUTO ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 76-444. Argued April 18, 1977—Decided June 17, 1977* In 1972 Congress amended the Longshoremen’s and Harbor Workers’ Compensation Act (Act) to extend coverage to additional workers in an attempt to avoid anomalies inherent in a system that drew lines at the water’s edge by allowing compensation under the Act only to workers injured on the seaward side of a pier. The relevant sections, as so amended, broadened the definition of “navigable waters of the United States” as the required situs of a compensable injury to include “any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel,” 33 U. S. C. § 903 (a) (1970 ed., Supp. V), and also modified the definition of a covered “employee” to mean “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and ship-breaker,” 33 U. S. C. §902 (3) (1970 ed., Supp. V). Respondent Biundo, whose job as a “checker” at a pier for petitioner International Terminal Operating Co. was to check and mark cargo being unloaded from a vessel or from a container (a large metal box resembling a truck trailer without wheels) which had been taken off a vessel, was injured when, while marking cargo “stripped” (unloaded) from a container, he slipped on some ice on the pier. Respondent Caputo, who, though a member of a regular stevedoring “gang” for another company, had been temporarily hired by petitioner Northeast Marine Terminal Co. as a terminal laborer at a pier to load and unload containers, barges, and trucks, was injured while rolling a dolly loaded with ship’s cargo into a consignee’s truck. Compensation awards to both respondents under the Act, as amended, were upheld by the Court of Appeals. Held: 1. Both respondents satisfied the “status” test of eligibility for compensation, since they were both “engaged in maritime employment” and *Together with No. 76-454, International Terminal Operating Co., Inc. yr. Biundo et al., also on certiorari to the same court. 250 OCTOBER TERM, 1976 Syllabus 432 U. S. were therefore “employees” within the meaning of § 902 (3) at the time of their injuries. Pp. 265-279. (a) Congress’ intent to adapt the Act to modem cargo-handling techniques, such as containerization, which have moved much of the longshoreman’s work off the vessel and onto land, clearly indicates that such tasks as stripping a container are included in the category of “longshoring operations” under § 902 (3), and hence it is apparent that respondent Biundo, whose task was an integral part of the unloading process as altered by the advent of containers, was a statutory “employee” when he slipped on the ice. Pp. 269-271. (b) Both the text of the 1972 amendments to the Act, which focuses primarily on occupations (longshoreman, harbor worker, etc.), and their legislative history, which shows that Congress wanted a system that did not depend on the fortuitous circumstance of whether the injury occurred on land or over water, demonstrate that Congress intended to provide continuous coverage to amphibious workers such as longshoremen, who, without the amendments, would be covered for only part of their activity, and that therefore the amendments were meant to cover such a person as respondent Caputo, who as a member of a regular stevedoring gang worked either on the pier or on the ship, and who on the day of his injury in his job as a terminal laborer could have been assigned to a number of tasks, including stripping containers, unloading barges, and loading trucks. Pp. 271-274. (c) Respondents’ coverage as “employees” under the Act cannot be defeated by the so-called “point of rest” theory, whereby longshoremen’s “maritime employment” would be considered, in the case of unloading, to be taking cargo out of a vessel’s hold, moving it away from the ship’s side, and carrying it to its point of rest on a pier or in a terminal shed, since that theory appears nowhere in the Act, was never mentioned by Congress during the legislative process, does not comport with Congress’ intent, and restricts coverage of a remedial Act designed to extend coverage. Pp. 274-279. 2. The injuries of both respondents occurred on a “situs” covered by the . Act. Pp. 279-281. (a) The truck that respondent Caputo was helping to load was parked inside the terminal area adjoining “navigable waters of the United States.” P. 279. (b) Although respondent Biundo’s injuries occurred on a pier used only for stripping and stuffing containers and for storage, rather than for loading and unloading ships, nevertheless he too satisfied the “situs” test, since the pier was located in a terminal adjoining the water, so that NORTHEAST MARINE TERMINAL CO. v. CAPUTO 251 249 Opinion of the Court even if it is assumed that the phrase “customarily used” in § 903 (a) modifies all the preceding terms, rather than only the immediately preceding term “other adjoining area,” he satisfied the test by working in an “adjoining . . . terminal . . . customarily used ... for loading [and] unloading.” Pp. 279-281. 544 F. 2d 35, affirmed. Marshall, J., delivered the opinion for a unanimous Court. William M. Kimball argued the cause for petitioners in No. 76-444. With him on the brief was Peter M. Pryor. E. Barrett Prettyman, Jr., argued the cause for petitioner in No. 76-454. With him on the briefs was Robert J. Kenney, Jr. Angelo C. Gucciardo argued the cause and filed a brief for respondents Caputo and Biundo in both cases. Frank H. Easterbrook argued the cause for respondent Director, Office of Workers’ Compensation Programs, in both cases pro hoc vice. With him on the brief were Acting Solicitor General Friedman, Laurie M. Streeter, and Joshua T. Gillelan IIA Mr. Justice Marshall delivered the opinion of the Court. In 1972 Congress amended the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA or Act), 33 U. S. C. § 901 et seq., in substantial part to “extend [the Act’s] coverage to protect additional workers.” S. Rep. No. 92-1125, p. 1 (1972) (hereinafter S. Rep.).1 In these consolidated cases we must determine whether respondents Caputo and Biundo, injured while working on the New York City waterfront, are •[Briefs of amici curiae urging reversal were filed by E. D. Vickery and W. Robins Brice for the West Gulf Maritime Assn.; and by Thomas D. Wilcox for the National Association of Stevedores. Thomas W. Gleason and Herzl 8. Eisenstadt filed a brief for the International Longshoremen’s Assn., AFL-CIO, as amicus curiae urging affirmance. 186 Stat. 1251, Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972 (hereinafter 1972 Amendments). 252 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. entitled to compensation. To answer that question we must determine the reach of the 1972 Amendments. The sections of the Act relevant to these cases are the ones providing “coverage” and defining “employee.” They provide, with italics to indicate the material added in 1972: “Compensation shall be payable ... in respect of disability or death of an employee but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). . . .” 33 U. S. C. § 903 (a) (1970 ed., Supp. V). “The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.” 33 U. S. C. § 902 (3) (1970 ed., Supp. V). Specifically at issue here is whether respondents Caputo and Biundo were “employees” within the meaning of the Act and whether the injuries they sustained occurred on the “navigable waters of the United States.” I At the time of his injury respondent Carmelo Biundo had been employed for five years as a “checker” by petitioner International Terminal Operating Co. (ITO) at its facility in Brooklyn, N. Y., known as the 21st Street Pier. As a checker he was responsible for checking and recording cargo as it was NORTHEAST MARINE TERMINAL CO. v. CAPUTO 253 249 Opinion of the Court loaded onto or unloaded from vessels, barges, or containers.2 Biundo was assigned his tasks at the beginning of each day and until he arrived at the terminal he did not know whether he would be working on a ship or on shore. He was reassigned during the day if he completed the task to which he was assigned initially. App. 63-69, 112. On January 8, 1974, ITO assigned Biundo to check cargo being “stripped” or removed from a container on the 19th Street side of the pier. The container Biundo was checking had been taken off a vessel at another pier facility outside of Brooklyn and brought overland unopened by an independent trucking company to the 21st Street Pier. It was Biundo’s job to break the seal that had been placed on the container in a foreign port and show it to United States Customs Agents. After the seal was broken, Biundo was to check the contents of the container against a manifest sheet describing the cargo, the consignees, and the ship on, and port from which, the cargo had been transported. He was to mark each item of cargo with an identifying number. After the checking, the cargo was to be placed on pallets, sorted according to consignees, and put in a bonded warehouse pending customs inspection. Biundo was injured as he was marking the cargo stripped from the container, when he slipped on some ice on the pier. Id., at 69-74, 86-90. Biundo sought compensation under the LHWCA. The Administrative Law Judge concluded that Biundo satisfied the 2 A container is a large metal box resembling a truck trailer without wheels. It can carry large amounts of cargo destined for one or more consignees. If the goods are for a single consignee, the container may be removed from the pier intact and delivered directly to him, but if it carries goods destined for several consignees, it must be unloaded or “stripped” and the goods sorted according to consignee. This operation may be done at the waterfront or inland. The analogous process during the loading phase is called “stuffing.” App. 86-89, 96-98, 101-103, 105-107; Brief for Federal Respondent 7 n. 4; Brief for National Association of Stevedores as Amicus Curiae 30. 254 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. coverage requirements of the Act and the Benefits Review Board (BRB) affirmed.3 Respondent Ralph Caputo was a member of a regular longshoring “gang” that worked for Pittston Stevedoring Co.4 When his gang was not needed, Caputo went to the 3 Under the 1972 Amendments, contested compensation claims are heard by an administrative law judge. 33 U. S. C. § 919 (d) (1970 ed., Supp. V). Review is then available from the BRB, a three-member board appointed by the Secretary of Labor. The BRB, created by the 1972 Amendments, is empowered “to hear and determine appeals raising a substantial question of law or fact taken by any party in interest from decisions with respect to claims of employees under [the LHWCA].” 33 U. S. C. §§921 (b)(1), (3) (1970 ed., Supp. V); see generally 20 CFR §§801-802 (1976). The decisions of the BRB are subject to review in the courts of appeals. 33 U. S. C. §921 (c) (1970 ed., Supp. V). Prior to the 1972 Amendments, cases were heard in the first instance by deputy commissioners and review was then available in the district courts. 33 U. S. C. § 921. There was no administrative review procedure for LHWCA claims. The Benefits Review Board Service (BRBS) is the unofficial reporter of the Board’s decisions. The BRB’s decision in Biundo’s case may be found at 2 BRBS 376 (1975) as well as in App. to Pet. for Cert, in No. 76-454, p. 45a. The Administrative Law Judge’s decision is reproduced id., at 49a. A synopsis of it may be found at 1 BRBS 71 (ALJ) (1975). 4 It is necessary, at this point, to introduce some terminology. “A stevedore or stevedore contractor is responsible for loading or unloading a ship in port by contract with a shipowner, agent, or charter operator.” U. S. Dept, of Labor, Office of Workers’ Compensation Programs Task Force Report, Longshore and Harbor Workers’ Compensation Program 103 (1976). “[A] marine terminal operator, who may own or lease the terminal property, is responsible for the safe handling of the ship, the delivery and receipt of the ship’s cargo, and all movement and handling of that cargo between the point-of-rest and any place on the marine terminal property except to shipside.” Ibid. Typically, the work of getting the cargo on and off the ship is done by a “gang” of longshoremen “distributed between the ship and the pier so they can move cargo in an uninterrupted flow.” Id., at 104. A member of the gang may be designated by the equipment he operates, e. g., a winchman or hustler operator, or by the area in which he works, NORTHEAST MARINE TERMINAL CO. v. CAPUTO 255 249 Opinion of the Court waterfront hiring hall, where he was hired by the day by other stevedoring companies or terminal operators with work available. He had been hired on some occasions by Northeast Stevedoring Co. to work as a member of a stevedore gang on ships at the 39th Street Pier in Brooklyn; on other occasions he had been hired by petitioner Northeast Marine Terminal Co., Inc. (Northeast), for work in its terminal operations at the same location. App. 8-10,14-16. On April 16, 1973, Caputo was hired by Northeast to work as a “terminal labor [er].” App. to Pet. for Cert, in No. 76-444, p. 48a; App. 8, 14. A terminal laborer may be assigned to load and unload containers, lighters,5 barges, and trucks.® Id., at 8; Brief for Petitioners in No. 76 444, p. 4. When he arrived at the terminal, Caputo was assigned, along with a checker and forklift driver, to help consignees’ truckmen load their trucks with cargo that had been discharged from ships at Northeast’s terminal.7 Caputo was injured while rolling a dolly loaded with cheese into a consignee’s truck. App. 27-40. The Administrative Law Judge found that Caputo satisfied the requirements of the Act and awarded him compensation. The BRB affirmed.8 The employers in both cases filed petitions to review the e. g., holdman. A typical longshore gang ranges from 12 to 20 workers. Because ship arrivals are irregular, the demand for a gang varies from day to day. Ibid. 5 A lighter is a closed barge. App. 8. See discussion n. 35, infra. G It is not clear from the record whether loading vessels with “ships’ stores” and laundry for the crew may be assigned to a terminal laborer or whether there is a separate classification called “ship laborer” for this. Compare App. 8, 24-25 with Brief for Federal Respondent 5 n. 3. 7 It was stipulated that all the cargo handled at this terminal either was going on board a vessel or had come from one. App. 6. 8 The BRB decision is reported at 3 BRBS 13 (1975). A synopsis of the Administrative Law Judge’s decision appears at 2 BRBS 4 (ALJ) (1975). Both opinions may also be found in Pet. for Cert, in No. 76-444, pp. 47a, 51a. 256 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. decisions and the Court of Appeals for the Second Circuit consolidated the cases. After thorough consideration of the language, history, and purposes of the 1972 Amendments, the court held, one judge dissenting, that the injuries of both respondents were compensable under the LHWCA.9 In view of the conflict over the coverage afforded by the 1972 Amendments,10 we granted certiorari to consider both cases.11 429 U.S. 998 (1976). We affirm. II Congress enacted the LHWCA in 1927, 44 Stat. 1424, after this Court had thwarted the efforts of the States and of Con- 9 Pittston Stevedoring Corp. v. Dellaventura, 544 F. 2d 35 (CA2 1976). 10 See ibid.; Sea-Land Service, Inc. v. Director, Office of Workers’ Compensation, 540 F. 2d 629 (CA3 1976); Jacksonville Shipyards, Inc. v. Perdue, 539 F. 2d 533 (CA5 1976), cert, pending sub nom. P. C. Pfeiffer Co. v. Ford, No. 76-641, Halter Marine Fabricators, Inc. n. Nutty, No. 76-880, and Director, Office of Workers’ Compensation Programs v. Jacksonville Shipyards, Inc., No. 76-1166; Stockman n. John T. Clark & Son of Boston, Inc., 539 F. 2d 264 (CAI 1976), cert, pending, No. 76—571; I. T. 0. Corp, of Baltimore v. BRB, 542 F. 2d 903 (CA4 1976) (en banc), cert, pending sub nom. Maritime Terminals, Inc. v. Brown, No. 76-706, and Adkins v. I. T. 0. Corp, of Baltimore, No. 76-730. For discussion of these cases, see n. 40, infra. 11 The Court of Appeals questioned whether the Director of the Office of Workers’ Compensation Programs (OWCP), the federal respondent here, was a proper party in the Court of Appeals. Pittston Stevedoring Corp. v. Dellaventura, supra, at 42 n. 5. (The OWCP was established by the Secretary of Labor and given the responsibility to administer several benefits programs, including the LHWCA. 20 CFR §701.201 (1976).) It concluded that some federal participation was proper and did not reach the question whether the BRB should have been substituted for the Director. Petitioners named the Director rather than the BRB as a respondent in the Court of Appeals and neither party has raised any question in this Court concerning the identity of the federal respondent. This question is therefore not before us. The Department of Labor has recently promulgated a regulation making it clear that the Director of OWCP is the proper federal party in a case of this nature. 42 Fed. Reg. 16133 (Mar. 1977). NORTHEAST MARINE TERMINAL CO. v. CAPUTO 257 249 Opinion of the Court gress to provide compensation for maritime workers injured on navigable waters through state compensation programs. In 1917, the Court, in Southern Pacific Co. v. Jensen, 244 U. S. 205, held that the States were without power to extend a workmen’s compensation remedy to longshoremen injured on the gangplank between a ship and a pier. The decision left longshoremen injured on the seaward side of a pier without a compensation remedy while longshoremen injured on the pier were protected by state compensation Acts. State Industrial Comm’n v. Nordenholt Corp., 259 U. S. 263 (1922). Dissatisfied with the gap in coverage thus created, and recognizing that the amphibious nature, of longshoremen’s work made it desirable to have “one law to cover their whole employment, whether directly part of the process of loading or unloading a ship or not,” Congress sought to authorize States to apply their compensation statutes to injuries seaward of the Jensen fine.12 Its attempts to allow such uniform state systems, however, were struck down as unlawful delegations of congressional power. Washington v. W. C. Dawson & Co., 264 U. S. 219 (1924); Knickerbocker Ice Co. v. Stewart, 253 U. S. 149 (1920). Finally, convinced that the only way to provide workmen’s compensation for longshoremen and harborworkers 12 H. R. Rep. No. 639, 67th Cong., 2d Sess., 2 (1922). More fully, the Report noted: “It is easy to understand the reason why the representatives of the workmen ask for compensation under State laws. The longshoremen are no more peripatetic workmen than are the repair men. They do not leave the port in which they work; they do not go into different jurisdictions. They are part of the local labor force and are permanently subject to the same conditions as are other local workmen. The work of longshoremen is not all on ship. Much of it is on the wharves. They may be at one moment unloading a dray or a railroad car or moving articles from one point on the dock to another, the next actually engaged in the process of loading or unloading cargo. Their need for uniformity is one law to cover their whole employment, whether directly part of the process of loading or unloading a ship or not.” See also S. Rep. No. 139, 65th Cong., 1st Sess.,1 (1917). 258 OCTOBER TERM, 1976 Opinion of the Court 432U.S. injured on navigable waters was to enact a federal system, Congress, in 1927, passed the LHWCA. The Act was, in a sense, a typical workmen’s compensation system, compensating an employee for injuries “arising out of and in the course of employment.” 13 But it was designed simply to be a gapfiller—to fill the void created by the inability of the States to remedy injuries on navigable waters. Thus, it provided coverage only for injuries occurring “upon the navigable waters of the United States” and permitted compensation awards only “if recovery . . . through workmen’s compensation proceedings [could] not validly be provided by state law.” 14 13 “Injury,” “employee,” and “employer” were defined in 33 U. S. C. §§902 (2), (3), (4): “(2) The term 'injury’ means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury .... “(3) The term 'employee’ does not include a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net. “(4) The term 'employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock).” 14Title 33 U. S. C. §903 defined the coverage provided by the Act: “(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law. No compensation shall be payable in respect of the disability or death of— “(1) A master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or “(2) An officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof. “(b) No compensation shall be payable if the injury was occasioned NORTHEAST MARINE TERMINAL CO. v. CAPUTO 259 249 Opinion of the Court Congress’ initial apprehension of the difficulties inherent in the existence of two compensation systems for injuries sustained by amphibious workers proved to be well founded. The courts spent the next 45 years trying to ascertain the respective spheres of coverage of the state and federal systems. As two commentators described it, “the relationship between [LHWCA] and the otherwise applicable State Compensation Act [was] shrouded in impenetrable confusion.” G. Gilmore & C. Black, Law of Admiralty 409 (2d ed. 1975) (Gilmore). It is unnecessary to examine in detail the Court’s efforts to dispel the confusion.15 Suffice it to say that while the Court permitted recovery under state remedies in particular situations seaward of the Jensen line, see, e. g., Davis v. Washington Labor Dept., 317 U. S. 249 (1942), the Court made it clear that federal coverage stopped at the water’s edge. Nacirema Operating Co. v. Johnson, 396 U. S. 212 (1969). In Nacirema Operating Co., supra, the Court held that the Act did not cover longshoremen killed or injured on a pier while attaching cargo to ships’ cranes for loading onto the ships, even though coverage might have existed had the men been hurled into the water by the accident, Marine Stevedoring Corp. v. Oosting, 238 F. Supp. 78 (ED Va. 1965), aff’d, 398 F. 2d 900 (CA4 1968) (en banc),16 or been injured on the solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.” 15 For discussion of the history, see Victory Carriers, Inc. v. Law, 404 U. S. 202, 204-209 (1971); Nacirema Operating Co. v. Johnson, 396 U. S. 212, 216-224 (1969); Gilmore 417-423 ; 4 A. Larson, Law of Workmen’s Compensation §89 (1976); Note, Broadened Coverage Under the LHWCA, 33 La. L. Rev. 683 (1973). 16 Nacirema Operating Co., supra, reversed the en banc decision of the Fourth Circuit in Marine Stevedoring Corp. That decision involved four separate cases in which longshoremen had been injured in different incidents while engaged in loading cargo vessels. The Deputy Commissioner awarded compensation to the man hurled into the water by his accident; the others were found to be outside the Act’s coverage. The Court of Appeals found that all four should be compensated. No 260 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. deck of the ship while performing part of the same operation, Calbeck v. Travelers Ins. Co., 370 U. S. 114 (1962). The dissent protested the incongruity and unfairness of having coverage determined by “where the body falls” and argued that the Act was “status oriented, reaching all injuries sustained by longshoremen in the course of their employment.” 396 U. S. at 224 (Douglas, J., dissenting). The majority, however, did not agree. “There is much to be said for uniform treatment of longshoremen injured while loading or unloading a ship. But even construing the [Extension of Admiralty Jurisdiction Act of 1948, 46 U. S. C. § 740,] to amend the Longshoremen’s Act would not effect this result, since longshoremen injured on a pier by pier-based equipment would still remain outside the Act. And construing the Longshoremen’s Act to coincide with the limits of admiralty jurisdiction—whatever they may be and however they may change—simply replaces one line with another whose uncertain contours can only perpetuate on the landward side of the Jensen line, the same confusion that previously existed on the seaward side. While we have no doubt that Congress had the power to choose either of these paths in defining the coverage of its compensation remedy, the plain fact is that it chose instead the line in Jensen separating water from land at the edge of the pier. The invitation to move that line landward must be addressed to Congress, not to this Court.” Id., at 223-224.” 17 In 1972, Congress moved the line. petition for certiorari was sought in the case involving the worker who fell in the water and thus this Court did not have that question before it. 17 The Court reiterated its suggestion to Congress in Victory Carriers, Inc. v. Law, supra, which held that a longshoreman injured on the pier by a pier-based forklift could not recover from the shipowner under a warranty of seaworthiness. The Court noted the sturdiness of the NORTHEAST MARINE TERMINAL CO. v. CAPUTO 261 249 Opinion of the Court The 1972 Amendments were the first significant effort to reform the 1927 Act and the judicial gloss that had been attached to it. The main concern of the 1972 Amendments was not with the scope of coverage but with accommodating the desires of three interested groups: (1) shipowners who were discontented with the decisions allowing many maritime workers to use the doctrine of “seaworthiness” to recover full damages from shipowners regardless of fault; (2) employers of the longshoremen who, under another judicially created doctrine, could be required to indemnify shipowners and thereby lose the benefit of the intended exclusivity of the compensation remedy; and (3) workers who wanted to improve the benefit schedule deemed inadequate by all parties.18 Congress sought to meet these desires by “specifi Jensen line in the absence of statutory modification. It observed, however, that “if denying federal remedies to longshoremen injured on land is intolerable Congress has ample power under Arts. I and III of the Constitution to enact a suitable solution.” 404 U. S., at 216. 18 The Report of the Senate Committee on Labor and Public Welfare described the need for the bill: “The Longshoremen’s and Harbor Workers’ Compensation Act was last amended in 1961, at which time the maximum benefit under the Act was set at $70 per week. . . . Clearly, in order to provide adequate income replacement for disabled workers covered under this law a substantial increase in benefits is urgently required. “While every one has agreed since at least the mid-1960’s that the benefits under this Act should be raised, there has been some dispute over the years as to whether such benefits should be raised so long as this compensation law was not the exclusive remedy for an injured worker. It has been the feeling of most employers that while they were willing to guarantee payment to an injured worker regardless of fault, they would only do so if the right to such payment was the exclusive remedy and they would not be subject to additional law suits because of that injury. “Since 1946, due to a number of decisions by the U. S. Supreme Court [starting with Seas Shipping Co. n. Sieracki, 328 U. S. 85 (1946)], it has been possible for an injured longshoreman to avail himself of the benefits of the Longshoremen’s and Harbor Workers’ Compensation Act and to sue 262 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. cally eliminating suits against vessels brought for injuries to longshoremen under the doctrine of seaworthiness and outlawing indemnification actions and 'hold harmless’ or indemnity agreements [; continuing] to allow suits against vessels or other third parties for negligence [; and raising] benefits to a level commensurate with present day salaries and with the needs of injured workers whose sole support will be payments under the Act.” S. Rep. 5.19 In increasing the benefits, however, Congress recognized that the disparity between the federal compensation rates and the significantly lower state rates would exacerbate the harshness of the already unpopular Jensen line. It also realized that modem technology had moved much of the longshoreman’s work onto the land so that if coverage were not extended, there would be many workers who would be relegated to what Congress deemed clearly inadequate state compensation systems. As both the Senate and House Reports stated: “[C]overage of the present Act stops at the water’s edge; the owner of the ship on which he was working for damages as a result of this injury. The Supreme Court has ruled that such ship owner, under the doctrine of seaworthiness, was liable for damages caused by any injury regardless of fault. In addition, [under the ruling of Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U. S. 124 (1956),] shipping companies generally have succeeded in recovering the damages for which they are held liable to injured longshoremen from the stevedore on theories of express or implied warranty, thereby transferring their liability to the stevedore company, the actual employer of the longshoremen.” S. Rep. 4. “The end result is that, despite the provision in the Act which limits an employer’s liability to the compensation and medical benefits provided in the Act, a stevedore-employer is indirectly liable for damages to an injured longshoreman who utilizes the technique of suing the vessel under the unseaworthiness doctrine.” Id., at 9. “The social costs of these law suits, the delays, crowding of court calendars and the need to pay for lawyers’ services have seldom resulted in a real increase in actual benefits for injured workers.” Id., at 4. 19 See Pub. L. 92-576, §§ 5-11,18, 86 Stat. 1253. NORTHEAST MARINE TERMINAL CO. v. CAPUTO 263 249 Opinion of the Court injuries occurring on land are covered by State Workmen’s Compensation laws. The result is a disparity in benefits payable for death or disability for the same type of injury depending on which side of the water’s edge and in which State the accident occurs. “To make matters worse, most State Workmen’s Compensation laws provide benefits which are inadequate .... “It is apparent that if the Federal benefit structure embodied in [the] Committee bill is enacted, there would be a substantial disparity in benefits payable to a permanently disabled longshoreman, depending on which side of the water’s edge the accident occurred, if State laws are permitted to continue to apply to injuries occurring on land. It is also to be noted that with the advent of modern cargo-handling techniques, such as containerization and the use of LASH-type vessels, more of the longshoreman’s work is performed on land than heretofore.” 20 To remedy these problems, Congress extended the coverage shoreward. It broadened the definition of “navigable waters of the United States” to include “any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel.” 21 At the same time, Congress amended the definition of the persons covered 20 S. Rep. 12-13. This appears in the section of the report called Extension of Coverage to Shoreside Areas. The House Report, H. R. Rep. No. 92-1441, pp. 10-11 (1972) (hereinafter H. R. Rep.) contains the identical section. 2133 U. S. C. §903 (1970 ed., Supp. V). Congress also removed the provision that precluded federal recovery if a state workmen’s compensation remedy were available. It retained the exclusions contained in 33 U. S. C. §§ 903 (a) (1), (a) (2), and (b). See n. 14, supra. 264 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. by the Act. Previously, so long as a work-related injury occurred on navigable waters and the injured worker was not a member of a narrowly defined class,22 the worker would be eligible for federal compensation provided that his or her employer had at least one employee engaged in maritime employment. It was not necessary that the injured employee be so employed. Pennsylvania R. Co. v. O’Rourke, 344 U. S. 334, 340-342 (1953). But with the definition of “navigable waters” expanded by the 1972 Amendments to include such a large geographical area, it became necessary to describe affirmatively the class of workers Congress desired to compensate. It therefore added the requirement that the injured worker be “engaged in maritime employment,” which it defined to include “any longshoreman or other person engaged in long-shoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but . . . not ... a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.” 33 U. S. C. § 902 (3) (1970 ed., Supp. V).23 The 1972 Amendments thus changed what had been essen- 22 The definition of “employee” excluded “a master or member of a crew of any vessel, [and] any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.” 33 U. S. C. § 902 (3). In addition, the coverage section, § 903, provided that no compensation was payable in respect of the disability or death of an employee of the United States. See n. 14, supra. These exclusions have been retained by the 1972 Amendments, see n. 21, supra. 23 The definition of “employer” was changed so as to correspond with the broadened definition of navigable waters. Title 33 U. S. C. § 902 (4) (1970 ed., Supp. V) reads: “The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).” NORTHEAST MARINE TERMINAL CO. v. CAPUTO 265 249 Opinion of the Court tially only a “situs” test of eligibility for compensation to one looking to both the “situs” of the injury and the “status” of the injured. We must now determine whether respondents Caputo and Biundo satisfied these requirements. Ill We turn first to the question whether Caputo and Biundo satisfied the “status” test—that is, whether they were “engaged in maritime employment” and therefore “employees” at the time of their injuries.24 The question is made difficult by the failure of Congress to define the relevant terms— “maritime employment,” “longshoremen,” “longshoring operations” 25—in either the text of the Act or its legislative history.26 24 There is no question in these cases that the injuries “arose out of and in the course of employment” and that the employers are statutory employers. See App. to Pet. for Cert, in No. 76-454, pp. 53a-54a; App. to Pet. for Cert, in No. 76-444, pp. 52a-53a; Brief for Petitioners in No. 76—444, p. 3. 25 As the definition of “employee” makes clear, the category of persons engaged in maritime employment includes more than longshoremen and persons engaged in longshoring operations. It is, however, unnecessary in this case to look beyond these two subcategories. This case also does not involve the question whether Congress excluded people who would have been covered before the 1972 Amendments; that is, workers who are injured on navigable waters as previously defined. See Weyerhaeuser Co. v. Gilmore, 528 F. 2d 957 (CA9), cert, denied, 429 U. S. 868 (1976). 26 The Reports and discussions used only the terms of the statute without elaboration. Thus, for example, the Section-by-Section Analysis in the Senate Report states: “Section 2(a) amends section 2(3) of the Act to define an 'employee’ as any person engaged in maritime employment. The definition specifically includes any longshoreman or other person engaged in longshoreing [sic] operations, and any harborworker, including a ship repairman, shipbuilder and shipbreaker. It does not exclude other employees traditionally covered but retains that part of 2(3) which excludes from the definition of 'employee’ masters, crew members or persons engaged by the master to 266 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. The closest Congress came to defining the key terms is the “typical example” of shoreward coverage provided in the Committee Reports.27 The example clearly indicates an unload, load or repair vessels of less than eighteen tons net.” S. Rep. 16. See also H. R. Rep. 14. And in the section describing the shoreward extension, the Committee Reports state: “The Committee believes that the compensation payable to a longshoreman or a ship repairman or builder should not depend on the fortuitous circumstance of whether the injury occurred on land or over water. Accordingly, the bill would amend the Act to provide coverage of longshoremen, harbor workers, ship repairmen, ship builders, shipbreakers, and other employees engaged in maritime employment (excluding masters and members of the crew of a vessel) if the injury occurred either upon the navigable waters of the United States or any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other area adjoining such navigable waters customarily used by an employer in loading, unloading, repairing, or building a vessel” S. Rep. 13; H. R. Rep. 10. 27 “The intent of the Committee is to permit a uniform compensation system to apply to employees who would otherwise be covered by this Act for part of their activity. To take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters. The employees who perform this work would be covered under the bill for injuries sustained by them over the navigable waters or on the adjoining land area. The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity. Thus, employees whose responsibility is only to pick up stored cargo for further trans-shipment would not be covered, nor would purely clerical employees whose jobs do not require them to participate in the loading or unloading of cargo. However, checkers, for example, who are directly involved in the loading or unloading functions are covered by the new amendment. Likewise the Committee has no intention of extending coverage under the Act to individuals who are not employed by a person who is an employer, i. e., a person at least some of whose employees are engaged, in whole or in part in some form of maritime employment. Thus, an individual employed by a person none of whose employees work, in whole or in part, on navigable waters, is not covered even if injured on a pier adjoining navigable waters.” S. Rep. 13; H. R. Rep. 10-11. NORTHEAST MARINE TERMINAL CO. v. CAPUTO 267 249 Opinion of the Court intent to cover those workers involved in the essential elements of unloading a vessel—taking cargo out of the hold, moving it away from the ship’s side, and carrying it immediately to a storage or holding area. The example also makes it clear that persons who are on the situs but are not engaged in the overall process of loading and unloading vessels are not covered. Thus, employees such as truckdrivers, whose responsibility on the waterfront is essentially to pick up or deliver cargo unloaded from or destined for maritime transportation are not covered. Also excluded are employees who perform purely clerical tasks and are not engaged in the handling of cargo. But while the example is useful for identifying the outer bounds of who is clearly excluded and who is clearly included, it does not speak to all situations.28 In particular, it is silent on the question of coverage for those people, such as Caputo and Biundo, who are injured while on the situs, see Part IV, infra, and engaged in the handling of cargo as it moves between sea and land transportation after its immediate unloading.29 28 That the example is not exhaustive is clear. Some types of cargo, for example, are never brought to a “holding or storage area” but are placed directly on a truck or railroad car for immediate inland movement. See Brief for Petitioner in No. 76-454, p. 38 n. 46; Tr. of Oral Arg. 44. And, while all would agree that persons bringing such cargo directly from a ship to a truck are engaged in maritime employment, see infra, at 274-275, the example does not mention such activity. In addition, while it is incontrovertible that workers engaged in the process of loading a ship and performing steps analogous to those mentioned in the example—that is, moving cargo from storage and placing it immediately on the ship—are covered, the fact is that the example also does not mention these steps. See also discussion, n. 38, infra. 29 Accord, Pittston Stevedoring Corp. v. Dellaventura, 544 F. 2d, at 54; Jacksonville Shipyards, Inc. v. Perdue, 539 F. 2d, at 540. The First Circuit in fact accused Congress of “seemingly [going] out of its way to avoid taking any express stance on the status of those engaged in stuffing and stripping containers as part of the loading and unloading process just as it is silent on the status of other terminal employees engaged in moving, 268 OCTOBER TERM, 1976 Opinion of the Court 432U.S. Nevertheless, we are not without guidance in resolving that question. The language of the 1972 Amendments is broad and suggests that we should take an expansive view of the extended coverage. Indeed, such a construction is appropriate for this remedial legislation. The Act “must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results.” Voris v. Eikel, 346 U. S. 328, 333 (1953). Consideration of the purposes behind the broadened coverage reveals a clear intent to reach persons such as Biundo and Caputo.30 storing and culling cargo on the pier.” Stockman v. John T. Clark & Son of Boston, Inc., 539 F. 2d, at 274. 30 We find consideration of the purposes more enlightening than looking simply at whether respondents belong to the International Longshoremen’s Association. See Brief for ILA as Amicus Curiae 15. We cannot assume that Congress intended to make union membership the decisive factor. The vagaries of union jurisdiction are unrelated to the purposes of the Act. Pittston Stevedoring Corp., supra, at 52; Stockman, supra, at 272; Jacksonville Shipyards, Inc., supra, at 543-544; but cf. Weyerhaeuser Co. v. Gilmore, 528 F. 2d, at 962. The private respondents suggest, Brief for Respondents Caputo et al. 19-21, that Congress intended to use the definitions found in the Bi-State Compact between New York and New Jersey that created the Bi-State Waterfront Commission, and was approved by Congress, 67 Stat. 541. The definitions may be found in N. Y. Unconsol. Laws §§ 9806, 9905 (McKinney 1974). Section 9806 provides, in relevant part: “ Tier’ shall include any wharf, pier, dock or quay. “ ‘Other waterfront terminal’ shall include any warehouse, depot or other terminal (other than a pier) which is located within one thousand yards of any pier in the port of New York district and which is used for waterborne freight in whole or substantial part. “ ‘Longshoreman’ shall mean a natural person, other than a hiring agent, who is employed for work at a pier or other waterfront terminal, either by a carrier of freight by water or by a stevedore “(a) physically to move waterborne freight on vessels berthed at piers, on piers or at other waterfront terminals, or “(b) to engage in direct and immediate checking of any such freight or of the custodial accounting therefor or in the recording or tabulation of NORTHEAST MARINE TERMINAL CO. v. CAPUTO 269 249 Opinion of the Court One of the primary motivations for Congress’ decision to extend the coverage shoreward was the recognition that “the advent of modem cargo-handling techniques” had moved the hours worked at piers or other waterfront terminals by natural persons employed by carriers of freight by water or stevedores, or “(c) to supervise directly and immediately others who are employed as in subdivision (a) of this definition.” Section 9905 provides supplementary definitions: “(6) ‘Longshoreman’ shall also include a natural person, other than a hiring agent, who is employed for work at a pier or other waterfront terminal “(a) either by a carrier of freight by water or by a stevedore physically to perform labor or services incidental to the movement of waterborne freight on vessels berthed at piers, on piers or at other waterfront terminals, including, but not limited to, cargo repairmen, coopers, general maintenance men, mechanical and miscellaneous workers, horse and cattle fitters, grain ceilers and marine carpenters, or “(b) by any person physically to move waterborne freight to or from a barge, lighter or railroad car for transfer to or from a vessel of a carrier of freight by water which is, shall be, or shall have been berthed at the same pier or other waterfront terminal, or “(c) by any person to perform labor or services involving, or incidental to, the movement of freight at a waterfront terminal as defined in subdivision (10) of this section. “(10) ‘Other waterfront terminal’ shall also include any warehouse, depot or other terminal (other than a pier), whether enclosed or open, which is located in a marine terminal in the port of New York district and any part of which is used by any person to perform labor or services involving, or incidental to, the movement of waterborne freight or freight. “As used in this section, ‘marine terminal’ means an area which includes piers, which is used primarily for the moving, warehousing, distributing or packing of waterborne freight or freight to or from such piers, and which, inclusive of such piers, is under common ownership or control.” While we find these definitions useful indicators of the terminology used by the industry, we agree with the court below that to assume, absent any indication in the legislative history, that Congress in 1972 had in mind this action of the 1953 Congress is “to attribute a degree of acumen few Congressmen would claim.” 544 F. 2d, at 50. 270 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. much of the longshoreman’s work off the vessel and onto land. S. Rep. 13; H. R. Rep. 10. Noted specifically was the impact of containerization. Unlike traditional break-bulk cargo handling, in which each item of cargo must be handled separately and stored individually in the hold of the ship as it waits in port, containerization permits the time-consuming work of stowage and unstowage to be performed on land in the absence of the vessel. The use of containerized ships has reduced the costly time the vessel must be in port and the amount of manpower required to get the cargo onto the vessel.31 In effect, the operation of loading and unloading has been moved shoreward; the container is a modern substitute for the hold of the vessel. As Judge Friendly observed below, “ [stripping a container ... is the functional equivalent of sorting cargo discharged from a ship; stuffing a container is part of the loading-of the ship even though it is performed on 31 “[T]he greatest economies promised by containerization are found in the efficiency of using a specially fitted all-container ship. A most important part of the costs of running a vessel is the dead time in port while loading and unloading. A ship in port earns no income and its heavy fixed costs continue. Moreover, the fast turnaround time of container ships—a container ship can unload and reload in 36-48 hours compared to the seven or eight days required for conventional ships—substantially cuts the number of ships needed to handle any given volume of cargo. ... “Labor productivity is astonishingly increased by containerization. One major shipping company reported that each of its work gangs on a conventional ship produced an average of 15 tons per hour compared with 300 tons an hour worked by one gang at a container ship hatch. More generally, the industry considers that fit would take 126 men 84 hours each, or a total of 10,584 man-hours, to discharge and load about 11,000 tons of cargo aboard a conventional ship. The same amount of cargo on a container vessel can be handled by 42 men working 13 hours each or a total of 546 man hours.’ ” Ross, Waterfront Labor Response to Technological Change: A Tale of Two Unions, 21 Labor L. J. 397, 399-400 (1970). See Goldberg, Containerization as a Force for Change on the Waterfront, 91 Monthly Labor Rev. 8, 9 (1968). NORTHEAST MARINE TERMINAL CO. v. CAPUTO 271 249 Opinion of the Court shore and not in the ship’s cargo holds.” Pittston Stevedoring Corp. v. Dellaventura, 544 F. 2d 35, 53 (CA2 1976). Congress’ intent to adapt the LHWCA to modern cargohandling techniques clearly indicates that these tasks, heretofore done on board ship, are included in the category of “longshoring operations.” 32 It is therefore apparent that respondent Biundo was a statutory “employee” when he slipped on the ice. His job was to check and mark items of cargo as they were unloaded from a container. This task is clearly an integral part of the unloading process as altered by the advent of containerization and was intended to be reached by the Amendments. Indeed, the Committee Reports explicitly state: “[C]heckers, for example, who are directly involved in the loading or unloading functions are covered by the new amendment.” S. Rep. 13; H. R. Rep. 11. We thus have no doubt that Biundo satisfied the status test.33 The congressional desire to accommodate the Act to modern technological changes is not relevant to Caputo’s case, since 32 Accord, Pittston Stevedoring Corp., 544 F. 2d, at 53; I. T. 0. Corp, of Baltimore, 542 F. 2d, at 905; Stockman, 539 F. 2d, at 275-277. As one commentator observed: "The work of the longshoreman, the loading and unloading of cargo, remains the same; only the procedure and the place of performance [have] changed. It seems unlikely that Congress would acknowledge that long-shoring today involves more shore-based activity than formerly and then extend coverage only to those longshoremen working closest to the ship.” Comment, Maritime Law—LHWCA Recovery Denied Longshoremen Injured Landward of the "Point of Rest,” 10 Suffolk U. L. Rev. 1179, 1188 (1976). 33 We find no significance in the fact that the container Biundo was stripping had been taken off a vessel at another pier and then moved to the site of the injury. Until the container was stripped, the unloading process was clearly incomplete. The only geographical concern Congress exhibited was that the operation take place at a covered situs. See Part IV, infra. It was precisely Congress’ intent to accommodate the mobility of containers and the ability to transport and strip them at locations removed from the ship. 272 OCTOBER TERM, 1976 Opinion of the Court 432U.S. he was injured in the old-fashioned process of putting goods already unloaded from a ship or container into a delivery truck. Another dominant theme underlying the 1972 Amendments, however, assists us in analyzing Caputo’s status. Congress wanted a “uniform compensation system to apply to employees who would otherwise be covered by this Act for part of their activity.” S. Rep. 13; H. R. Rep. 10-11. It wanted a system that did not depend on the “fortuitous circumstance of whether the injury [to the longshoreman] occurred on land or over water.” S. Rep. 13; H. R. Rep. 10. It therefore extended the situs to encompass the waterfront areas where the overall loading and unloading process occurs. It is the view of the respondent Director of the OWCP that a uniform system must reach “all physical cargo handling activity anywhere within an area meeting the situs [test].” Brief for Federal Respondent 20. “[M]aritime employment,” in his view, “include [s] all physical tasks performed on the waterfront, and particularly those tasks necessary to transfer cargo between land and water transportation.” Id., at 25. Under this theory, it is clear that the Act would cover someone who, like Caputo, was engaged in the final steps of moving cargo from maritime to land transportation: putting it in the consignee’s truck. We need not decide, however, whether the congressional desire for uniformity supports the Director’s view34 and enti- 34 While the Director identifies this as the BRB’s position as well as his own, Brief for Federal Respondent 20, it appears to us that the BRB has gone further than this position suggests. For example, the BRB found that a clerk, who worked in an office processing the paperwork for the delivery of cargo to truckmen for removal from the terminal, was a covered “employee.” It reasoned that this function, although clerical in nature, was “essential to the removal of cargo from the terminal and was an integral part of longshoring operations.” Farrell n. Maher Terminals, Inc., 3 BRBS 42, 45 (1975). Contrary to the view expressed by the Director, the BRB showed no concern with the fact that the employee did not handle cargo. Citing the Committee Reports, see n. 27, NORTHEAST MARINE TERMINAL CO. v. CAPUTO 273 249 Opinion of the Court ties everyone performing a task such as Caputo’s to benefits under the Act. It is clear, at a minimum, that when someone like Caputo performs such a task, he is to be covered. The Act focuses primarily on occupations—longshoreman, harbor worker, ship repairman, shipbuilder, shipbreaker. Both the text and the history demonstrate a desire to provide continuous coverage throughout their employment to these amphibious workers who, without the 1972 Amendments, would be covered only for part of their activity. It seems clear, therefore, that when Congress said it wanted to cover “longshoremen,” it had in mind persons whose employment is such that they spend at least some of their time in indisputably long-shoring operations and who, without the 1972 Amendments, would be covered for only part of their activity. That Caputo is such a person is readily apparent. As a member of a regular stevedoring gang, he participated on either the pier or the ship in the stowage and unloading of cargo. On the day of his injury he had been hired by petitioner Northeast as a terminal laborer. In that capacity, he could have been assigned to any one of a number of tasks necessary to the transfer of cargo between land and maritime transportation, including stuffing and stripping containers, loading and discharging lighters and barges,35 and loading and unloading supra, the Third Circuit has rejected this conclusion and granted a petition for review. Maher Terminals, Inc. v. Farrell, 548 F. 2d 476, 478 (1977). Regardless of whether the view advanced by the Director is the position of the BRB, we agree with Judge Friendly that it would be useful for the BRB to engage in an extensive study of the structure of work on the various piers of the country. While the record before us contains sufficient information to enable us to decide the present cases, such a study will be helpful for future cases. 35 Lighters and barges are part of the modern technological advancements to which Congress referred when it mentioned “LASH-type vessels.” The term LASH is an acronym for “lighter aboard ship.” The National Association of Stevedores (NAS) describes the system as follows: “[C]argo is placed in special uniform size ‘lighters/ or barges, which are 274 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. trucks. App. 8. Not only did he have no idea when he set out in the morning which of these tasks he might be assigned, but in fact his assignment could have changed during the day. Thus, had Caputo avoided injury and completed loading the consignee’s truck on the day of the accident, he then could have been assigned to unload a lighter. Id., at 24. Since it is clear that he would have been covered while unloading such a vessel,36 to exclude him from the Act’s coverage in the morning but include him in the afternoon would be to revitalize the shifting and fortuitous coverage that Congress intended to eliminate. Petitioners and the NAS seek to avoid these results by proposing a so-called “point of rest” theory.37 The term “point of rest” is claimed to be a term of art in the industry called LASH barges to differentiate them from river barges. The LASH barges are towed from the loading port to the location of the LASH vessel, which is sometimes called the mother ship. The barges are mechanically loaded by a crane on the mother ship and are stacked in specially constructed holds in the mother ship. The actual stowage or unstowage of the barges with their contents in the mother ship requires substantially fewer longshoremen than does the loading of cargo into a breakbulk type ship. A very similar type of operation called SEABEE differs from the LASH operation described only in the size of the barge and the mechanical means for loading or unloading the barge onto or from the mother SEABEE ship. “The actual loading of the barges is performed by longshoremen in precisely the same manner traditionally employed in the loading or unloading of a breakbulk ship. However, in most instances the size of the longshore gang involved in LASH and SEABEE operations is smaller than the regular ship’s gang primarily because of the smaller size of the barge. The barges are in fact vessels and ply the navigable waters of the United States and may be loaded or unloaded at any inland or coastal waterfront facility.” Brief for NAS as Amicus Curiae 27-28. 36The NAS specifically agrees: “Workers who actually load or unload the barges are engaged in traditional longshore operations and if injured while so engaged would obviously be entitled to the benefits of the LHWCA unless their employer were a state, municipal or other public political entity.” Id., at 28. 37 Petitioner Northeast also argues that the particular cargo Caputo was handling at the moment of injury was no longer in “maritime com NORTHEAST MARINE TERMINAL CO. v. CAPUTO 275 249 Opinion of the Court that denotes the point where the stevedoring operation ends (or, in the case of loading, begins) and the terminal operation function begins (or ends, in the case of loading). Brief for Petitioner in No. 76-454, p. 9. See n. 4, supra. Petitioners contend that the “maritime employment of longshoremen” includes only “the stevedoring activity of the longshore gang (and those directly involved with the gang) which, in the case of unloading, takes cargo out of the hold of the vessel, moves it away from the ship’s side, and carries it to its point of rest on the pier or in a terminal shed.” Brief for Petitioner in No. 74-454, p. 9. Since Caputo and Biundo were handling cargo that had already reached its first point of rest, petitioners argue they are not to be covered. This contention that Congress intended to use the point of rest as the decisive factor in the “status” determination has several fatal weaknesses. First, the term “point of rest” nowhere appears in the Act or in the legislative history. It is difficult to understand why, if Congress intended to stop coverage at this point, it never used the term. The absence of a term that is claimed to be so well known in the industry is both conspicuous and telling. But it is not simply the term’s unexplained absence that undermines petitioners’ theory. More fundamentally, the merce” because it had been at least five days since it had been taken off a ship. See the Administrative Law Judge’s decision in App. to Pet. for Cert, in No. 76-444, p. 52a. But the consignee’s delay in picking up the cargo has no effect on the character of the work required to effectuate the transfer of the cargo to the consignee. The work performed by the longshoreman is the same whether performed the day the cargo arrives in port or weeks later. In addition, we reiterate that Caputo did not fall within the excluded category of employees “whose responsibility is only to pick up stored cargo for further trans-shipment.” S. Rep. 13; H. R. Rep. 11. As we indicated, supra, at 266-267, that exclusion pertains to workers, such as the consignees’ truckdrivers Caputo was helping, whose presence at the pier or terminal is for the purpose of picking up cargo for further shipment by land transportation. 276 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. theory is simply too restrictive, failing to accommodate either the language or the intent of the 1972 Amendments. The operations petitioners would cover clearly are “longshoring operations” and are appropriately covered by the Act. But petitioners fail to give effect to the obvious desire to cover longshoremen whether or not their particular task at the moment of injury is clearly a “longshoring operation.” The theory does not comport with the Act’s focus on occupations and its desire for uniformity. As the First Circuit noted: “The evil of the old Act was that it bifurcated coverage for essentially the same employment. The point-of-rest approach would seem to result in the same sort of bifurcation, since the same employee engaged in an activity beyond the point of rest would cease to be covered.” Stockman v. John T. Clark & Son of Boston, Inc., 539 F. 2d 264, 275 (1976). In addition, the theory fails to accommodate the intent to cover those long-shoring operations that modern technology had moved onto the land. Coverage that stops at the point of rest excludes those engaged in loading and unloading the modern functional equivalents of the hold of the ship. As we have indicated, Congress clearly intended to cover such operations.38 38 Moreover, we are not convinced that the point-of-rest theory provides the workable definition that petitioners claim for it. The "point” varies from port to port and with different types of cargo. See the Stevedore and Marine Terminal Industry of the United States (unpublished survey by the NAS) (1974r-1975); n. 28, supra. The point can be moved seaward or landward at the whim of the employer. Such characteristics make it inconsistent with the uniform system Congress sought to design. As Judge Craven observed, when a panel of the Fourth Circuit adopted the point-of-rest theory and refused to cover persons holding jobs similar to Caputo’s and Biundo’s: “[Respondents] will, I think, be surprised to learn that they are not longshoremen, and astonished to discover that they are not engaged in maritime employment of any kind. If they are not, as my brothers hold, then the Congress has labored prodigiously only to have accomplished nothing at all in its effort to simplify the problems of maritime workers’ compensation. . . . Henceforth, injured employees and their counsel must NORTHEAST MARINE TERMINAL CO. v. CAPUTO 277 249 Opinion of the Court The only support petitioners can find for their theory is the fact that it is consistent with the “typical example” given in the Committee Reports. See n. 27, supra. But as we have already indicated, supra, at 266-267, the example is equally consistent with a broader view of coverage. Consistency with an illustrative example is clearly not enough to overcome the overwhelming evidence against the theory.39 In view of all this, it is not surprising that the “point of rest” limitation has been rejected by all but one of the Circuits that have considered it40 and by virtually all the com comb the waterfronts of this circuit, probing hopelessly, like Diogenes with his lantern, for that elusive ‘point of rest’ upon which coverage depends.” I. T. 0. Corp, of Baltimore v. BRB, 529 F. 2d 1080, 1089 (1975) (dissenting opinion), modified en banc, 542 F. 2d 903 (1976). 39 Petitioners also contend that it is too expensive to extend coverage beyond the point of rest and that Congress did not intend to impose such expenses on the employers. Brief for Petitioner in No. 76-454, pp. 68-73. However, there is nothing in the legislative history to indicate what Congress anticipated the expanded coverage would cost. 40 The Court of Appeals for the Second Circuit, in the case below, rejected the point-of-rest theory and awarded compensation to Biundo and Caputo for reasons similar to those upon which we rely. Pittston Stevedoring Corp. v. Dellaventura, 544 F. 2d 35 (1976). The First Circuit, as noted in n. 29, supra, has also found the point-of-rest theory incompatible with Congress’ desire for uniformity. Also relying on factors similar to those we consider, the court concluded that the operations of stuffing and stripping containers were clearly longshoring operations and affirmed a compensation award to one so engaged. Stockman, 539 F. 2d, at 272-277. The Third Circuit has extended coverage well beyond the point of rest. Sea-Land Service, Inc. n. Director, Office of Workers’ Compensation, 540 F. 2d 629 (1976). Its analysis has differed from the other Circuits. It concluded that Congress meant to exercise its full constitutional authority and to “afford federal coverage to all those employees engaged in handling cargo after it has been delivered from another mode of transportation for the purpose of loading it aboard a vessel, and to all those employees engaged in discharging cargo from a vessel up to the time it has been delivered to a place where the next mode of transportation will pick it 278 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. mentators.41 We too reject it. A theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with up.” Id., at 638. The Circuit appears to have essentially discarded the situs test, holding that only “[an] employment nexus (status) with maritime activity is [necessary] ” and that the situs of the maritime employee at the time of injury is irrelevant. Ibid. See also Sea-Land Service, Inc. v. Director, Office of Workers’ Compensation Programs, 552 F. 2d 985 (CA3 1977); Maher Terminals, Inc. n. Farrell, 548 F. 2d 476 (CA3 1977). The Fifth Circuit also has rejected the point-of-rest theory, calling it a “hypertechnical construction.” Jacksonville Shipyards, Inc. n. Perdue, 539 F. 2d, at 540. It affirmed compensation awards to a worker securing a vehicle to a railway car in preparation for its transportation inland and to a worker unloading bales of cotton from a wagon and stacking them in the warehouse to await future placement on a ship. The awards were affirmed because both people were involved in “an integral part of the ongoing process of moving cargo between land transportation and a ship.” Id., at 543-544. The Fourth Circuit is the one Circuit that has considered the theory and not rejected it. I. T. 0. Corp, of Baltimore v. BRB, 542 F. 2d 903 (1976) (en banc). But it has also not accepted it. While three of six judges sitting en banc accepted the theory, the fourth held that the Act covered certain cargo handling within the terminal shoreside of the point of rest. He found coverage for two workers situated similarly to Biundo, characterizing their activities as part of the overall loading and unloading function. Id., at 905. He denied coverage to a worker in the same situation as Caputo. The other two judges of the en banc court would have covered all three workers since they were engaged in “handling] ships’ cargo.” I. T. 0. Corp, of Baltimore v. BRB, 529 F. 2d, at 1097 (Craven, J., dissenting). 41 Only one of the commentators discussing the Act prior to the early cases even thought of the point of rest as a line of demarcation, but he makes no effort to explain why the term was never mentioned in the Act or history. Vickery, Some Impacts of the 1972 Amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, 41 Ins. Counsel J. 63 (1974). Gilmore §§ 6-51, p. 427; Gorman, The Longshoremen’s and Harbor Workers’ Compensation Actr—After the 1972 Amendments, 6 J. Mar. L. & Com. 1, 9-10 (1974); Note, The 1972 Amendments to Section 903 of the Longshoremen’s and Harbor Workers’ Act, 4 Rutgers Camden L. J. 404 (1973); Note, Maritime Jurisdiction and Longshoremen’s NORTHEAST MARINE TERMINAL CO. v. CAPUTO 279 249 Opinion of the Court Congress’ intent, and that restricts the coverage of a remedial Act designed to extend coverage is incapable of defeating our conclusion that Biundo and Caputo are “employees.” IV Having established that respondents Biundo and Caputo satisfied the “status” test for coverage under the Act, we consider now whether their injuries occurred on a covered “situs”—“the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing or building a vessel) There is no dispute with respect to Caputo. The truck he was helping to load was parked inside the terminal area. As petitioner Northeast correctly concedes, this situs “unquestionably met the requirements of § 3 (a) of the Act, . . . because the terminal adjoins navigable waters of the United States and parts of the terminal are used in loading and unloading ships.” Brief for Petitioners in No. 76-444, p. 3 n. 1. Biundo’s injury was sustained while he was checking a container being stripped on a pier located within a facility known as the 21st Street Pier. The fenced-in facility was located on the water and ran between 19th and 21st Streets. It included Remedies, 1973 Wash. U. L. Q. 649; Note, Broadened Coverage Under the LHWCA, 33 La. L. Rev. 683 (1973). Those writing after the theory had been advanced in the courts have universally found it inadequate. 4 A. Larson, supra, n. 15, §89.42; Note, Shoreside Coverage Under the Longshoremen’s and Harbor Workers’ Compensation Act, 18 B. C. Ind. & Com. L. Rev. 135 (1976); Comment, Maritime Law—LHWCA Recovery Denied Longshoremen Injured Landward of “Point of Rest,” 10 Suffolk U. L. Rev. 1179 (1976); Note, Admiralty Law/Workmen’s Compensation—On the Waterfront, 54 N. C. L. Rev. 925 (1976); Comment, The Longshoremen’s and Harbor Workers’ Compensation Act: Coverage After the 1972 Amendments, 55 Texas L. Rev. 99, 116-120 (1976). 280 OCTOBER TERM, 1976 Opinion of the Court 432U.S. two "finger-piers.” The pier on the 21st Street end was used to berth ships for purposes of loading and unloading them. The one on the 19th Street end was used only for stripping and stuffing containers and storage. See the Administrative Law Judge’s decision in Pet. for Cert, in No. 76— 454, pp. 52a-53a. Biundo was working on this latter pier. Petitioner ITO argues that Biundo was not on a covered situs because the 19th Street Pier was not "customarily used by an employer for loading [or] unloading ... a vessel.” The Court of Appeals labeled this argument “halfhearted” and dismissed it in a footnote. 544 F. 2d, at 51 n. 19. We agree that the argument does not merit extended discussion. First, we agree with the court below that it is not at all clear that the phrase "customarily used” was intended to modify more than the immediately preceding phrase “other areas.” We note that the sponsor of the bill in the House, Representative Daniels, described this section as “expand [ing] the coverage which was limited to the ship in the present law, to the piers, wharves, and terminals.” 118 Cong. Rec. 36381 (1972). There was little concern with respect to how these facilities were used.42 42 Petitioner ITO contends that statements in the Committee Reports indicate that the “customarily used” requirement is to apply to all the specified areas. It points to the Reports’ intent to exclude persons not engaged in loading, unloading, repairing or building a vessel “just because they are injured in an area adjoining navigable waters used for such activity,” S. Rep. 13; H. R. Rep. 11, and the Senate Report’s description of the bill as “expand [ing] the coverage of this Act to cover injuries occurring in the contiguous dock area related to longshore and ship repair work.” S. Rep. 2. These statements, however, serve to undermine rather than to help ITO’s attempt to read the situs requirement to exclude the pier on which Biundo was working. Even assuming they suggest a usage requirement for all such adjoining piers, it is clear that the usage is broad enough to encompass stripping and stuffing containers, integral parts of the overall loading and unloading process. NORTHEAST MARINE TERMINAL CO. v. CAPUTO 281 249 Opinion of the Court Second, even if we assume that the phrase should be read to modify the preceding terms, we agree with the BRB and the Court of Appeals that Biundo satisfied the situs test in the same way that Caputo did—by working in an “adjoining . . terminal... customarily used ... in loading [and] unloading.” The entire terminal facility adjoined the water and one of its two finger-piers clearly was used for loading and unloading vessels. Accordingly, we conclude that when Congress sought to expand the situs to avoid anomalies inherent in a system that drew lines at the water’s edge, it intended to include an area such as the one at issue here. Accord, Stockman v. John T. Clark & Son of Boston, Inc., 539 F. 2d, at 271-272; I. T. 0. Corp, of Baltimore v. BRB, 529 F. 2d 1080, 1083-1084 (CA4 1975), modified en banc, 542 F. 2d 903 (1976). Since we find that both Caputo and Biundo satisfied the status and the situs tests, we affirm. It is so ordered. 282 OCTOBER TERM, 1976 Syllabus 432 U. S. DOBBERT v. FLORIDA CERTIORARI TO THE SUPREME COURT OF FLORIDA No. 76-5306. Argued March 28, 1977—Decided June 17, 1977 The Florida death penalty statute, which was upheld in Proffitt v. Florida, 428 U. S. 242, requires, upon the conviction of a capital felon, a separate sentencing hearing before the trial judge and jury, at which certain evidence relating to aggravating or mitigating circumstances must be admitted. The jury, based on such circumstances, then renders an advisory decision, not binding on the judge, who must then also weigh the circumstances, and if he imposes a death sentence, he must set forth written findings of fact. The judgment of conviction and death sentence are thereafter subject to an automatic priority review by the Florida Supreme Court. Petitioner was convicted in a Florida court of, inter alia, first-degree murder of one of his children. Pursuant to the above statute the jury, after the required sentencing hearing, recommended a life sentence, but the judge overruled that recommendation and sentenced petitioner to death. The Florida Supreme Court affirmed. Petitioner makes three claims based on the constitutional prohibition against ex post facto laws: (1) the change in the role of the judge and jury in imposing the death sentence, in that under the statute in effect at the time of the murder a recommendation of mercy by the jury was not reviewable by the judge, constituted an ex post facto violation because the change deprived him of a substantial right to have the jury determine, without review by the trial judge, whether the death penalty should be imposed; (2) there was no death penalty “in effect” in Florida at the time of the murder because the earlier statute in effect at such time was later held invalid by the Florida Supreme Court under Furman v. Georgia, 408 U. S. 238; and (3) the current statute (the one under which he was sentenced) requires anyone sentenced to life imprisonment to serve at least 25 years before becoming eligible for parole, whereas the prior statute contained no such limitation. Petitioner also makes a related claim that since after Furman and its own decision invalidating the prior death penalty statute the Florida Supreme Court resentenced to life imprisonment all prisoners then under death sentences pursuant to the old statute, and since his crimes were committed prior to Furman, the imposition of the death sentence upon him pursuant to the new statute denied DOBBERT v. FLORIDA 283 282 Syllabus him equal protection of the laws. He further claims that pretrial publicity concerning his crimes deprived him of his right to a fair trial. Held: 1. The changes in the death penalty statute between the time of the murder and the time of the trial are procedural and on the whole ameliorative, and hence there is no ex post facto violation. Pp. 293-297. (a) The new statute simply altered the methods employed in determining whether the death penalty was to be imposed, and there was no change in the quantum of punishment attached to the crime. Pp. 293-294. (b) The new statute provides capital defendants with more, rather than less, judicial protection than the old statute. Death is not automatic, absent a jury recommendation of mercy, as it was under the old statute; a jury recommendation of Efe may be overridden by the trial judge only under exacting standards, but, unlike the old statute, a jury recommendation of death is not binding, Defendants have a second chance for life with the trial judge and a third, if necessary, with the Florida Supreme Court. Pp. 294r-297. 2. The existence of the earlier statute at the time of the murder served as an “operative fact” to warn petitioner of the penalty which Florida would seek to impose on him if he were convicted of first-degree murder, and this was sufficient compliance with the ex post facto provision of the Constitution, notwithstanding the subsequent invalidation of the statute. Pp. 297-298. 3. Petitioner, having been sentenced to death, may not complain of burdens attached to a life sentence under the new statute which may not have attached to the old. Pp. 298-301. 4. The imposition of the death sentence upon petitioner pursuant to the new statute did not deny him equal protection of the laws. Having been neither tried nor sentenced prior to Furman, he was not similarly situated to those whose death sentences were commuted, and it was not irrational for Florida to relegate him to the class of those prisoners whose acts could properly be punished under the new statute that was in effect at the time of his trial and sentence. P. 301. 5. Absent anything in the record, in particular with respect to the voir dire examination of the jurors, that would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected, petitioner has faffed to show that under the “totality of circumstances” extensive pretrial news media coverage of his case denied him a fair trial. Pp. 301-303. 328 So. 2d 433, affirmed. 284 OCTOBER TERM, 1976 Opinion of the Court 432U.S. Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, and Powell, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 303. Brennan and Marshall, JJ., filed a dissenting statement, post, p. 304. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, J J., joined, post, p. 304. Louis 0. Frost, Jr., argued the cause and filed a brief for petitioner. Charles W. Musgrove, Assistant Attorney General of Florida, argued the cause for respondent. With him on the briefs was Robert L. Shevin, Attorney General.* Mr. Justice Rehnquist delivered the opinion of the Court. Petitioner was convicted of murder in the first degree, murder in the second degree, child abuse, and child torture. The victims were his children. Under the Florida death penalty statute then in effect he was sentenced by the trial judge to death for the first-degree murder. The Florida Supreme Court affirmed, and we granted certiorari to consider whether changes in the Florida death penalty statutes subjected him to trial under an ex post facto law or denied him equal protection of the laws, and whether the significant amount of pretrial publicity concerning the crime deprived petitioner of his right to a fair trial. We conclude that petitioner has not shown the deprivation of any federal constitutional right, and affirm the judgment of the Florida Supreme Court. I Petitioner was convicted of first-degree murder of his daughter Kelly Ann, aged 9, and second-degree murder of his son Ryder Scott, aged 7. He was also found guilty of tortur *Howard B. Eisenberg filed a brief for the National Legal Aid and Defender Assn, as amicus curiae urging reversal. DOBBERT v. FLORIDA 285 282 Opinion of the Court ing his son Ernest John III, aged 11, and of abusing his daughter Honore Elizabeth, aged 5. The brutality and heinousness of these crimes are relevant both to petitioner’s motion for a change of venue due to pretrial publicity and to the trial judge’s imposition of the sentence of death. The trial judge, in his factual findings at the sentencing phase of the trial, summarized petitioner’s treatment of his own offspring as follows: “The evidence and testimony showed premeditated and continuous torture, brutality, sadism and unspeakable horrors committed against all of the children over a period of time.” App. 47. The judge then detailed some of the horrors inflicted upon young Kelly Ann, upon which he relied to meet the statutory requirement that aggravating circumstances be found: “Over the period of time of the latter portion of Kelly Ann’s short, tortu[r]ous life the defendant did these things to her on one or many occasions: “1. Beat her in the head until it was swollen. “2. Burned her hands. “3. Poked his fingers in her eyes. “4. Beat her in the abdomen until ‘it was swollen like she was pregnant.’ “5. Knocked her against a wall and ‘when she fell, kicked her in the lower part of the body.’ “6. Held her under water in both the bath tub and toilet. “7. Kicked her against a table which cut her head— then defendant sewed up her wound with needle and thread. “8. Scarred her head and body by beating her with a belt and board—causing marks from her cheek, across the neck and down her back—which injuries worsened without treatment ‘until the body juices came out.’ 286 OCTOBER TERM, 1976 Opinion of the Court 432 U. S. “9. On one occasion beat her continuously for 45 minutes. “10. On many occasions kicked her in the stomach with his shoes on, and on the night she died he kicked her a number of times. "11. Kept her out of school so that the many scars, cuts and bruises on her body would not be seen by others. “12. Defendant made no effort to get professional medical care and attention for the child and in fact actively prevented any out-siders from discovering her condition. “13. Choked her on the night she died and when she stopped breathing he placed her body in a plastic garbage bag and buried her in an unmarked and unknown grave.” Id., at 47-48. This sordid tale began to unravel in early 1972 when Ernest John III was found battered and wandering in Jacksonville, Fla.1 An arrest warrant was issued for petitioner, who evidently had fled the area. About a year later, Honore Elizabeth was found in a Ft. Lauderdale hospital with a note pinned to her clothing asking that she be sent to her mother in Wisconsin. Shortly thereafter petitioner’s abandoned automobile was found near a bridge with a suicide note on the front seat. Petitioner, however, had fled to Texas, where he was eventually arrested and extradited to Florida. Prior to trial, petitioner applied to the Supreme Court of Florida for a Constitutional Stay of Trial,2 alleging the application of an ex post facto law and a violation of equal 1 These background facts, not referred to in the opinion of the Supreme Court of l