Transcript

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument next in Number 96-7151, Debra Faye Lewis v. United States. Mr. Granger.

MR. FRANK GRANGER: Mr. Chief Justice, and may it please the Court: Debra Lewis was charged, tried, and convicted under an assimilated Louisiana murder statute for a crime which was committed on a military reservation in Vernon Parish, Louisiana.

She was not charged nor tried under the appropriate Federal murder statute. On appeal, the Fifth Circuit agreed and reversed the conviction based upon the assimilated Louisiana statute, finding that it did not apply, and that the Assimilative Crimes Act did not allow the prosecutor to assimilate the State statute when, in fact, a Federal murder statute prohibited the conduct for which she was charged. However, the Fifth Circuit then affirmed the life imprisonment sentence based upon her conviction of second degree Federal murder.

We also contend that the affirmance of the sentence is harmful and prejudicial to Debra Lewis because under the sentencing guidelines applicable to Federal second degree murder, such a sentence could not be imposed.

For purposes of this argument, the Assimilative Crimes Act is a longstanding Federal statute which merely is a gap-filling and a loophole-closing statute. The purpose of the statute was to prevent and allow the Federal Government to prosecute criminal actions on military reservations on territory under exclusive Federal jurisdiction when, by assimilating a State criminal statute if, and only if, there was no Federal statute which made the conduct sort to be prosecuted--

JUSTICE SANDRA DAY O'CONNOR: Well, I'm not sure that's the backdrop against which that was adopted. I think there was considerable sentiment at the time that basically State law ought to apply to crimes committed in areas that the Federal Government was administering, and what do you think our policy should be in general, to find that State law should apply where possible, because that is the backdrop under which this statute was passed in the first place.

MR. GRANGER: Yes, Justice O'Connor, I under--I agree with you, but once the Assimilative Crimes Act was adopted initially in approximately 1825, it was because Congress at that particular point in time had not taken a very proactive role in adopting criminal statutes, so what happened was, you'd have a person commit an act or a criminal--or a crime on a military reservation or in the territories and then be able to flaunt and get away with it. So as Justice Story has been noted to say, that necessity--in fact, he was one of the authors of part of the Assimilative Crimes Act, along with Daniel Webster, in saying that we have to allow these crimes to be punished and close--my words, close the loopholes or fill the gap. There is great sentiment to apply State law on these reservations. However, Congress has spoken.

In 18 U.S.C. section 13, which I have at page 5 of my brief, the original brief, it says, whoever is guilty of any act or omission which, although not made punishable by any enactment of Congress. So in times past, and in this particular case before 1909, when there was no Federal murder statute, clearly the Government would have been faced with a proposition that it couldn't prosecute for murder, so obviously they had to assimilate the State crime and say we can't allow you to get away with this, and so we'll take the State crime, and by section 13, it becomes a Federal crime and we prosecute it. I think in this particular case we get to the point of whether the particular act is made punishable by an enactment of Congress, and I think that the statutes are clear again. Congress has adopted the Federal murder statute at 18 U.S.C. section 1111, which you'll find at page 5 and 6 of my brief. This statute clearly sets forth a comprehensive scheme of murder. As in most States, there's a difference between first degree and second degree murder. Congress has done the same thing.

Congress has found that there would be first degree murders, which are generally murders, or killing of human beings with malice aforethought, but also premeditated murders such as poison, lying-in-wait, or again they have another group of murders that are specifically listed as first degree murders, which is arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse, or sexual abuse, burglary, or robbery.

JUSTICE DAVID H. SOUTER: Was that true in 1993? I don't know the answer to this question. Did that, the specific breakdown come in the 1994 amendments?

MR. GRANGER: There may have been an amendment, Your Honor, Justice Souter, as to the aggravated sexual abuse or sexual abuse, but the other provisions were specifically--

JUSTICE SOUTER: They were there.

MR. GRANGER: However, the statute is also clear, it says any other murder, and that is explicit, that are not listed as first degree murder is murder in the second degree. I think the Federal murder statute is very clear--

CHIEF JUSTICE REHNQUIST: Well, a little bit depends on how you come at it, doesn't it, Mr. Granger? I mean, I think you're analyzing it and very likely quite proper in saying, here's how Congress treated murder, but if you say, how did Congress treat offenses against juveniles, then you would come at it in a somewhat different way.

MR. GRANGER: I don't entirely agree with that, Mr. Chief Justice. I think the way that Congress has specified this statute is merely to set forth the crimes in two broad categories that are fairly com--that are comprehensive. However, Congress also has another way of doing this, because I know the issue here is murder of a child. However, if we looked at the sentencing guidelines--I believe it's section 381.2--which provides for an enhancement under the murder statute for a vulnerable victim, clearly, Congress then decided that when you have younger persons we have to make an allowance and enhance the penalty.

CHIEF JUSTICE REHNQUIST: But that wasn't just under the Federal murder statute, was it? That's for all sentencing for all Federal crimes.

MR. GRANGER: Correct, Your Honor, and that is merely to take into account the fact that some people are more vulnerable to crimes, such as older people, pigeon drops, or things of that nature, or in our particular situation here, where you have a younger person, a child who is being abused, who is actually being killed by a step-parent, a parent and a step-parent. However, the theory of the statute is comprehensive, and it takes into consideration this particular act, whereas--

JUSTICE ANTHONY KENNEDY: I'm not sure what your test is. Your brief at some point talks about conduct. At other points it talks about the nature of the offense.

It seems to me what you're saying now that Congress has addressed the general subject area, and that that should suffice. I take it that's the standard you're asking us to apply.

MR. GRANGER: Yes, Justice Kennedy. What I'm saying is--

JUSTICE KENNEDY: Maybe you're not, but I'm just--I--

MR. GRANGER: Well, my brief, I would admit, is not as articulate as I would like it to have been, but I think the general thought that I was trying to present to the Court is that we have certain conduct, and in this particular case the Federal--the Congress has enacted a murder statute that takes into account conduct which is normally classified as murder, and that is specifically the killing of a human being. Whereas, when we look at the Louisiana first degree murder statute, it, in much the same way, has broken down murder into first degree and second degree to take into consideration various persons, statuses, or crimes committed within the perpetration or attempt to perpetrate another crime, just like the first degree murder statute in--that Congress adopted.

However, what Louisiana has done is sought to enforce punishment through the differentiation of the types of murder. Whereas in first degree murder you have either a death penalty or life imprisonment without parole, and in second degree murder you have life in prison without parole.

However, the conduct, or the act, is the killing. I think it's a fairly specific thing that we can all realize and agree upon that is what murder is, is the killing of a human being.

JUSTICE SOUTER: Do you take the position essentially that the Government does on the criterion--and, by the way, I'm not suggesting that you give your case away if you do this, but I think you and the Government are getting close, because toward the end of the Government's brief the Government says, if I remember rightly, that the question we should ask is whether Congress has made a considered judgment that the particular peculiarity of State law which might be argued to override the Federal--the general Federal statute should have no bearing, and it's kind of a field preemption sort of concept, and I think that's essentially what you're arguing. Am I right?

MR. GRANGER: Justice Souter, yes, I believe that's what I'm getting at, but I think I'm trying to make it in a different way. What I'm trying to propose is simply a clear reading of the statutes, because it appears to me that it's fairly clear that Congress has taken over the field of murder, especially after 1909, as it applies to any act which has occurred upon a military reservation, or any act under the exclusive jurisdiction of the Federal court.

JUSTICE SOUTER: But I mean you're saying--as I understand it, you're saying that on the basis of reading the congressional statute and saying, in effect, this looks like a statute which is meant to cover the whole waterfront of murder.

MR. GRANGER: Yes, sir.

JUSTICE SOUTER: Yes.

MR. GRANGER: I do agree with that.

JUSTICE RUTH BADER GINSBURG: Suppose Louisiana had a statute that said, abuse of a child is an offense, juvenile cruelty is an offense. Then in your view would it be perfectly proper for the U.S. prosecutor to say, I have one charge under the U.S. Code for murder, and a second charge under Louisiana law for cruelty to a juvenile. Would that be compatible?

MR. GRANGER: Justice Ginsburg, I would think that that's more closely compatible to my analysis of the statutes, and I would--if I had to concede a point, I would concede that that is more likely to be an appropriate acceptance of the way the statute should work, because under the Louisiana cruelty to a juvenile statute it covers not only cruelty but also it covers neglect, so then you have a different area than, say, the Federal assault statute, where we deal with the actual striking of someone under the age of 16 or something of that nature.

But there again, we see the difference. The chord, or the common chord that goes through these cases, at least in my way of thinking, is the fact we have a killing, and Congress has said, as far as it goes to killing, we've decided what is first degree murder, we have decided what is second degree murder.

Now, Louisiana, you can decide whatever you want is murder under your State statutes, and you can apply that to whomever you want, as long as they are your citizens or persons in your State, but when it comes to prosecuting this crime on Federal property, in Federal courts, for an offense against the United States, then we're going to look at what we decide murder is and so as not to get too far afield--

JUSTICE GINSBURG: So is your test, then, just that if the congressional statute covers the crime, murder, homicide, then you don't look any further, that's it?

MR. GRANGER: You would not have to look further for the definition of murder. You would look only to the Federal murder statute, not to any Louisiana statutes dealing with murder, yes.

JUSTICE GINSBURG: So it's--you're advocating a simple test that the Federal statute covers it, that's it. You don't augment it in any way.

MR. GRANGER: Yes, Justice Ginsburg, because when we--when I looked at this Court's previous ruling in Williams back in 1946, the issue there really, the way I sum it up, is that you have a competing State and Federal statute.

The Federal statute chose in that case to draw the elements of the crime more narrowly, the age of consent being 16, whereas the Arizona statute chose to make the age of consent 18, and this Court held--

JUSTICE O'CONNOR: Well--

MR. GRANGER: --that we cannot allow a State statute to somehow enlarge, broaden, or redefine-

JUSTICE O'CONNOR: Well, most Federal courts have interpreted Williams as adopting some kind of a precise acts test. I don't think the courts generally have applied the assimilative crimes statute very literally. It reads broadly, certainly, but they've instead said it's some kind of a precise acts test. Do you agree with that approach in most cases?

MR. GRANGER: Justice O'Connor, I agree with that approach, except that I think in a--the case of a murder versus the case of carnal knowledge versus statutory rape the precise act can only be one act, and that--

JUSTICE O'CONNOR: Well, how about abuse of a child carried out by beating, and the Federal law just has an assault and battery statute, but the State law has a specific child abuse statute that would govern, what--is it assimilated, or not?

MR. GRANGER: If I had to choose I would say it's more like--

JUSTICE O'CONNOR: I mean, it's so curious, because it all depends on how you frame the generality of the act. The act is the beating of a child. Well, then the Federal law covers it. No, it's abusing a child. Well, then the State law covers it. How do we know?

MR. GRANGER: I think we have to look at what conduct is being proscribed and whether the statute, whether it be the Federal assault statutes or whether it be a Louisiana cruelty to a juvenile statute, or any State statute that deals with batteries or cruelty to a juvenile, addressed the actual conduct which is being prohibited. There is that gray--

JUSTICE O'CONNOR: Well, how do you answer that question? Which one applies in the case of beating a child?

MR. GRANGER: I would think that if it's specifically beating of a child, that more than likely it would be assimilated, and it has been assimilated under other circuit courts.

However, I think we also have to understand that assault statutes as written are generally very, very broad, and they're--and they cover a wide range of acts, and in fact they could also, as far as the cruelty to a juvenile statute in Louisiana--

JUSTICE O'CONNOR: That's pretty close to saying well, murder of a child will apply the State law.

MR. GRANGER: But in the Louisiana scheme work I believe, Justice O'Connor, that what we're talking about is, there is a killing of a child, and what we're looking now at is the way that Louisiana defines murder from first degree to second degree. That is not really the issue,

I think, before this Court. The issue before this Court, has Congress, through the Federal murder statute, defined this crime and, if so, we don't go to a State statute in order to give us a different burden of proof, to give us different elements of the crime, or to give us different sentences.

We look only to the Federal statute. And I think that's what makes those type of cases much different than assault cases, or burglary cases, or cases where you have a long range or a wide range of different actions that can be specifically narrowed down.

JUSTICE ANTONIN SCALIA: Mr. Granger, you're not really arguing that we should stick to the words of the statute, are you? I mean, the words of the statute say, if the act, any act or omission not made punishable by any enactment of Congress. That's the condition.

It has to be an act or omission which is not made punishable by any enactment of Congress. Now, I assume, if you follow the language of the statute and you beat somebody to death and Congress had an assault statute but not a murder statute, that would be covered by that language, wouldn't it?

MR. GRANGER: I think that--

JUSTICE SCALIA: You could not prosecute under State law for the murder, because the act or omission was punishable. What he did, the beating of this person which resulted in death, but that was the act or omission, it is punishable, so you would only be able to prosecute under Federal law for assault and no murder prosecution, right?

MR. GRANGER: No, Justice Scalia, I disagree with that, because I think that we have two different things. One is an assault, which does not mean there is a killing. You can have an assault and there be no death.

JUSTICE SCALIA: That's what I thought you meant.

MR. GRANGER: And clearly--

JUSTICE SCALIA: In other words, you're urging us to ignore the words, act or omission. I mean, the statute doesn't deal with type of offense. It says, act or omission, and we're all agreed that we should forget about that because it doesn't work.

MR. GRANGER: No, Justice Scalia. I think that we need to look at those words because--

JUSTICE O'CONNOR: Well, I thought you had just said we didn't and, indeed, is there a single Federal court that has given it a literal interpretation? If so, what one and what case?

MR. GRANGER: The--I know of none, Justice O'Connor, that has given it that interpretation. But I think the issue here is that when we talk about something such as an assault, which is a very different statute, differently written than a murder, and especially the way that the Federal Congress has defined murder in this case, that it's kind of like mixing apples and oranges together, because assaults do not entail murder, or necessarily.

You could have an assault in which someone dies, and then you may be charged with both crimes, but, of course, the murder would be more inclusive of the actual assault on the person.

JUSTICE KENNEDY: So you want us to define a general subject in a, sort of a preemption context.

MR. GRANGER: Justice Kennedy, I believe that is the appropriate way to look at this case, because when Williams grappled with this issue a long time ago we were dealing with situations in which you had, I guess, less Federal criminal legislation than you have now.

But even back then we had the murder statute, and more importantly, the case was directed at the conduct that was being prosecuted, and the prosecution of a murder, whether it be a person under the age of 12, as in Louisiana first degree murder, or a person over the age of 12, it is the murder, that is the act and the conduct that we have to look at. And the issue then becomes, if Congress has chosen to prosecute that particular type of conduct in a certain way, then it would be impermissible to allow the assimilation of a State statute which may define it differently, or may prosecute it differently, or may have different elements of the crime to merely come in to change this Federal statute. Congress, if it so chooses, can change the statute. It can change it--

JUSTICE JOHN PAUL STEVENS: But why is it the murder that's--what if they had a homicide statute and say, a third--or a manslaughter provision with negligent driving of a vehicle, or a few other examples, but none that omitted what is the counterpart to first degree murder, would you say that had dealt with the subject of killing the victim?

MR. GRANGER: Yes, Justice Stevens, because clearly if you look at the murder statutes any other murder than those which are enumerated is going to be murder in the second degree.

Now, of course, in Federal court, or in the Federal Criminal Code we do have voluntary and involuntary manslaughter statutes, but I think that's what Congress is saying, is that we're specific--

JUSTICE STEVENS: But I want to be sure--I'm not sure I understand.

MR. GRANGER: Yes.

JUSTICE STEVENS: Supposing the Federal statute merely went so far as most, say, second degree manslaughter, the very least severe penalty, that's all it covered, would the deliberate killing be covered by the Federal statute or by the State statute?

MR. GRANGER: If I understand your hypothetical correctly, Justice Stevens, if there were no premeditate or malice aforethought element--

JUSTICE STEVENS: In the Federal statute, yes.

MR. GRANGER: --then certainly that would be a different type of crime.

JUSTICE STEVENS: So there you would then look to the State law.

MR. GRANGER: I think you would have to in that particular instance, because what we're discussing is--

JUSTICE STEVENS: But then why don't you look to State law if it's not more serious because of deliberateness versus negligence, but rather because the State has chosen to give special protection to youthful victims?

MR. GRANGER: I think that--

JUSTICE STEVENS: I don't quite understand the logic of your position.

MR. GRANGER: And maybe I understand the error of my ways.

JUSTICE STEVENS: Yes.

MR. GRANGER: I think, Justice Stevens, what I would look at is that, depending, I guess, if we do have crimes that may be crimes under Federal law that are not crimes under State law, and clearly we have crimes under State law which are not crimes under Federal law, whether these apply or don't apply is based on whether they occur on Federal property or not, so if Congress said that we're not going to have any of these murders and we're not going to allow these murders to be prosecuted, then I guess you could not prosecute that person for that type of murder. But if--

JUSTICE STEVENS: Well, they just--they haven't said it can't be. I mean, they just have omitted a particular category.

MR. GRANGER: They've just omitted it, but then, I guess, then the prosecution would be for the lowest element of murder under Federal law, which would be included within, say, the higher type of murder that you're describing, which is with premeditation, or--

CHIEF JUSTICE REHNQUIST: Mr. Granger, now, you say--one of the questions you present is not just whether your client was prosecuted under the proper statute, but if the petitioner was not properly prosecuted under the Assimilative Crimes Act, whether or not the sentence was proper. Now, supposing that we should agree with you on your argument under the Assimilated Crimes Act, as the Fifth Circuit did, the Fifth Circuit said nonetheless your client should--the conviction would be upheld because it was equally a violation of the Federal act. Now, what's your position on that before this Court?

MR. GRANGER: Well, Mr. Chief Justice, I'd raised another issue in cert which was, of course, denied, so in that particular respect the second degree murder conviction found by the Fifth Circuit would also be affirmed. However, the sentence that was imposed, or at least allowed to stand by the Fifth Circuit, would need to be vacated and the matter remanded.

CHIEF JUSTICE REHNQUIST: So you're not asking for a new trial, then. At one point in your brief you say something about a new trial, but you're saying now that all you're asking for is a resentencing under the appropriate statute.

MR. GRANGER: Your Honor, Mr. Chief Justice, yes, because that issue was not--cert was not granted on that issue and it's not properly before the Court. However, I would assume that if this Court thought that that issue needed to be raised it could on its own do so.

But in this particular circumstance, no. The only issue I have here is if you agree that the Assimilative Crimes Act does not apply, then the only remedy my client has is a remand to the Fifth Circuit to vacate the sentence it imposed, and then remand the matter to the district court for resentencing in accordance with the guidelines, which is basically, as I understand the Government's brief--

JUSTICE SCALIA: Yes.

MR. GRANGER: --they conceded--

JUSTICE SCALIA: They agree to that, don't they?

MR. GRANGER: And I think that that is really the appropriate measure in this case. The--

JUSTICE GINSBURG: Going back to what's covered or not covered, the point where you are in disagreement with the Government, suppose we have the murder statute that we have on the Federal side, the victim is a pregnant woman, and the State also has a murder statute but then it has a separate crime of feticide. How would that--would that be something that under your theory you could take the murder from the Federal and the feticide from the State?

MR. GRANGER: Justice Ginsburg, I don't think it would apply because the Federal statute would have encompassed both those acts, because feticide is actually another form of killing, and therefore it would be covered by the Federal murder statute, as any other crime which is not first degree murder is second degree murder. So you may have--you would have the murder, obviously, of the mother, and then as far as whether--and this is the question I don't know the answer to, whether the Federal murder statute would allow such a claim for an unborn child, then I don't have the answer to that. If it does, you would have to say two counts of murder. If not, you'd only have one count.

JUSTICE SOUTER: Mr. Granger, I want to get clear on one thing. You referred--in answering Justice Ginsburg you referred to the fact that the Federal statute covered it. Is your test an analytical test?

In other words, you can determine it--you apply it solely by looking at the terms of State statute, in terms of Federal statute, or is it an analytical test plus an intent test, so that at the end of the day you say, can we infer from everything we know, including what's on the face of the statute, that Congress intended to cover this particular conduct exclusively by the Federal statute? Is it a purely analytical test, or is it ultimately an intent test?

MR. GRANGER: Justice Souter, I believe it's clearly an analytical test because the intent issue clearly is covered within the Federal murder statute if you're thinking of criminal intent, whether it be premeditated or with just malice aforethought.

However, in that respect it's an analytical test because the murders--we're not looking to what State law describes as to what intent should apply, whereas in Louisiana in this particular case you only have the issue of, for first degree murder under Louisiana law, a specific intent to kill, or specific intent to inflict great bodily harm, the death of the person, and the person being under the age of 12. So it's strictly analytical, because we don't look to whether another State or a State statute would describe the intent required to meet the definition of the crime. We look at whether Federal law covers the act, and then Federal law itself then describes what intents are requisite for what purposes, whether it be first degree murder, second degree murder, or voluntary or involuntary manslaughter. If there are no other questions, Mr. Chief Justice, I reserve the balance of my time.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Granger. Mr. Stewart, we'll hear from you.

MR. MALCOLM L. STEWART: Mr. Chief Justice, and may it please the Court: The text of the Assimilative Crimes Act is set forth at page 2 of the Government's brief, and I think the proper disposition of this case hinges on analysis of two phrases within that statute. The first is the phrase, act or omission, the second is the phrase, made punishable, and I'd like to address them in that order.

JUSTICE SCALIA: It hinges on either observing them or ignoring them, right?

MR. STEWART: I--as to the phrase, act or omission, I think it hinges on interpreting them. The phrase, act or omission, is often used to refer to a particular incident of primary conduct. That is, this Court has frequently stated that a single act may constitute more than one offense, and in that situation it's used in contradistinction to offense. On the other hand, it would not be unnatural to say, for example, that 18 U.S.C. 1111 defines murder as the act of killing a human being with malice aforethought, in which case the word act would be used not to refer to a particular incident at a particular time and place, but to a category of conduct meeting the requisite specifications, and in our view the words act or omission in this statute should be construed to mean, offense. The question is whether the State law offense is made punishable by an enactment of Congress, and I think there are several reasons--

JUSTICE STEVENS: Is it your view, just to sum it up, that we apply the Blockburger test unless there's something in the Federal statute that trumps it?

MR. STEWART: I think it's not--that's not quite our view, because I think--I'll get to made punishable in more detail, but I think the short answer is, one of the features of the Blockburger test is that a greater and a lesser included offense are treated as the same offense for double jeopardy purposes, and that would not be our position with respect to this statute. That is, if State law has defined a greater offense, we would not say that that has been made punishable by an act of Congress simply because Congress has defined a lesser included offense, as in this case. But to return to the phrase--

JUSTICE SCALIA: The effect of that kind of interpretation is to say that every poor devil who lives in a Federal enclave is subjected to two total systems of criminal law. You think that's what Congress had in mind? This is a very old statute, and I sort of regarded it as, you know, just to fill in the gaps where there are so many Federal, you know, basic crimes, basic wicked things that were not at that time punished by Federal law. There are very few wicked things that aren't punished by Federal law. Why shouldn't we just call a halt to the expansion of this Assimilative Crimes Act? I don't know why we want to make everybody subject to twice as many different series of statutes just because they're living on a Federal enclave.

Why wouldn't it be enough just to say they're subject to Federal law and this thing has either no application any more or it will be a rare, rare case where it has application?

MR. STEWART: Well, I think first of all it's obviously not unusual for people living outside Federal enclaves to be subject to both Federal and State criminal laws. Indeed, individuals can often be subjected to successive prosecutions by the two sovereigns for the same criminal act.

Now, it's true that individuals residing on Federal enclaves are subject to some Federal criminal provisions that are applicable only to the enclaves, and in that sense they face a distinctive burden. On the other hand, there is no comprehensive Federal Criminal Code applicable to the enclaves.

Moreover, an individual on the enclaves has the commensurate advantage that the only prosecution that can be brought will be brought by Federal authorities and, therefore, while individuals residing outside the enclaves may face successive prosecutions for what would be the same offense in Blockburger terms, the individuals on the enclaves will have that added protection. But again, to return to the--

JUSTICE SCALIA: That's a good point. You're saying that I'm looking at it precisely wrong, that the question is whether--isn't whether people on the enclaves shall be subjected to dual criminal laws which other people aren't, but whether they will be treated like everybody else.

MR. STEWART: That's exactly right.

JUSTICE SCALIA: So it is subject to both State and Federal law for the most part.

MR. STEWART: That's exactly right, and I think the resolution of this case ultimately hinges on how the Court views the concept of applying State law norms on Federal enclaves. That is--

CHIEF JUSTICE REHNQUIST: In fact, the Federal enclave residents may have a better deal, because they are going to get either one or the other, but people off the enclave may get both.

MR. STEWART: That's correct. The only sovereign that can prosecute is the Federal Government, although the Federal Government may invoke assimilated State laws.

JUSTICE KENNEDY: Were you going to focus on the word punishable in this--

MR. STEWART: Let me--

JUSTICE KENNEDY: Was that your second--

MR. STEWART: My second--I do want to focus briefly at least on the words act or omission, because I think the meaning of made punishable is easier to follow if the words act or omission are first made clear. That is, I think for a variety of reasons it is appropriate to interpret the phrase, act or omission, to mean the State law offense that is sought to be assimilated. First of all, as Justice Scalia pointed out in his hypothetical, the contrary reading would create absurd results. That is, in a hypothetical situation in which the Federal Government had an assault statute but no murder statute a State would--the Federal Government would be precluded from proceeding on an assimilated State murder charge simply because the primary conduct would have constituted assault under Federal law.

To focus on the individual incident of primary conduct would have a second practical infirmity as well. That is, from the standpoint of sound judicial administration it's certainly important that the propriety of an Assimilated Crimes Act prosecution can be determined at the outset of the proceeding, but an indictment typically doesn't contain any lengthy recitation of the primary conduct in which the individual is alleged to have engaged. It does contain a summary of the essential nature and elements of the offense with which he is charged.

JUSTICE SCALIA: That's the same argument made in favor of Blockburger as the test for double jeopardy.

MR. STEWART: That's correct.

JUSTICE SCALIA: You have to know it up front.

MR. STEWART: That's correct, Your Honor, and if the test ultimately turned on whether act, the conduct proved at trial would have violated some Federal statute, first you wouldn't know up front, and second you could even have the bizarre situation in which the defendant attempted to introduce evidence showing that his conduct did, in fact, violate a Federal statute even though the evidence introduced by the prosecution had not shown that, so I think--

JUSTICE SOUTER: But on your theory, I take it we still would not know what offense was the appropriate offense to focus on, and I take it that's the issue that you deal with under the concept of punishables, is that right?

MR. STEWART: Well, I think when we ask whether an offense is made punishable the offense should be the State law crime with which the individual is charged, and in this case it's very clear what that was.

The jury was instructed at the close of petitioner's trial that in order to find the petitioner guilty it had to find that she killed Jadasha Lowery, that she acted with intent to kill or do great bodily harm, and that the victim was under 12 years old. That--

JUSTICE SOUTER: In other words, if the State law offense is more specifically described, if the level of generality is lower, we look to a State law offense.

MR. STEWART: If--in determining whether the offense is made punishable we first look to the State law offense as defined by the--its essential elements, and then the next question is, what does it mean to say that a State law offense has been made punishable by an enactment of Congress, and in our view a State law offense has been made punishable by an enactment of Congress only if Congress has addressed the class of conduct that constitutes the State offense at the same level of specificity as the State. Now, that will be true most obviously--

JUSTICE SOUTER: So yours is a purely analytical test.

MR. STEWART: That's correct.

JUSTICE SOUTER: It's not a congressional intent test. It's a purely analytical test.

MR. STEWART: It is almost exclusively a purely analytical test. That is, in the great majority of cases the question of whether the State law offense has been made punishable by an enactment of Congress can be resolved by asking, is there a Federal statute that contains precisely the same essential elements as the State statute, so we can--

JUSTICE KENNEDY: On that point, what if Congress had a child murder statute and then repealed it, and then this case arises?

MR. STEWART: I think that would be a closer case. I think that probably wouldn't be clear enough, but I would like to--

JUSTICE KENNEDY: So then it isn't just an analytical test.

MR. STEWART: It isn't purely an analytical test, and I think the Court in Williams addressed a situation in which there were Federal laws on the Federal enclaves that prohibited adultery, fornication, and what was called carnal knowledge, what is usually termed statutory rape, and the Federal carnal knowledge law set the age of consent at 16, made it a crime to have sexual intercourse with a person not the wife of the wrongdoer who was under the age of 16. The State statute set the age of consent at 18, and the question was whether the use of the Assimilated--Assimilative Crimes Act was precluded by the Federal statute. Now, it was not the case that there was any Federal statute that had precisely the same elements as the State offense, so part 1 of our test wouldn't be met here, but the Court, surveying all the available evidence, concluded that the reason there was no Federal offense having exactly those same elements was that Congress had considered the matter and had decided that such an offense was not warranted. That is, Congress had considered specifically at what age does an individual become capable of giving meaningful consent to sexual relations.

JUSTICE SOUTER: Doesn't that say that you've got to have your analytical criterion plus something more, because in the Williams case the level of specificity was precisely the same, i.e., certain ages are to be considered in deciding what the offense is. And the issue in Williams, I suppose, was, did Congress intend the details of the level of specificity that it chose to prevail over the details of the level of specificity, age of victim, that the State chose?

And so ultimately, and I would suppose even on your specificity criterion, you'd have to say, well, we infer that Congress meant its particular choice of ages to prevail over the State's particular choice of ages.

MR. STEWART: That was certainly the Court's inference, but--

JUSTICE SOUTER: And is--doesn't that have to be, as it were, an adjunct to your analytical test, because at some times your test is going to produce, as it were, a tie. You're not going to know.

MR. STEWART: I think that's correct. That's why I said that assimilation is precluded if either there is a Federal statute with precisely the same elements as the State statute, or--and I think the second category will be very rare cases--there is highly persuasive evidence that Congress has considered the matter at the same level of specificity as the State.

JUSTICE STEPHAN GERALD BREYER: So if, in fact, you have a Federal statute that forbids bank robbery in general, then the State could punish a person--it's assimilated because they have a statute that makes it a crime to forbid--to rob a State bank. That's all. You have--the Federal law says, punishable to rob any bank, and now Louisiana has a statute that says, it's punishable to rob a State bank.

MR. STEWART: I think that's probably correct. At least--

JUSTICE BREYER: Well, I mean, my goodness--

MR. STEWART: At least--

JUSTICE BREYER: That sounds like a rather odd result.

MR. STEWART: At least if there were any basis for the conclusion that State banks were in some sense--

JUSTICE BREYER: No, no, what--they are special. They have a special certificate that says the State bank examiner, and they hang that on the wall.

MR. STEWART: It might be the case that if there was nothing different about State banks we could presume that--

JUSTICE BREYER: Well, there is. They have that certificate. But the other--taking the other part of your argument, I take it that the only--the only difference here, really, is the death penalty, that if, in fact, we assimilate the State law, the defendant's eligible for the death penalty, and if we don't--I mean, that's what turns on first degree versus second degree. Second degree in Louisiana has a mandatory life without parole, so the only thing putting it in the first degree is the death penalty, and if that's so, if that's all Louisiana's done between going from Louisiana two to Louisiana one, can we really say that Congress has not made any determination about when they want a Federal death penalty?

I mean, my thought is that they've been debating that in Congress for 30 years, and it's normally a very hot issue, and when Congress lists a whole lot of crimes and doesn't put on the death penalty but does on some others, how is that any different from the statutory rape?

MR. STEWART: Well, I think the other point that turns--the other point that depends on choice between the Assimilative Crimes Act and the Federal murder statute is that the Louisiana first degree murder statute provides for a mandatory life sentence even if the death penalty is not sought, whereas the Federal murder statute provides that the defendant may be sentenced to any term of years or for life, so even in this case, where the Government didn't seek the death penalty, it had potential practical significance to the penalty that was imposed.

I think--to return to Williams, I think in a sense we could say that this is the case that Williams would have been had there been no Federal carnal knowledge statute. That is, at the time Williams was decided, there were Federal adultery and fornication statutes that broadly prohibited all acts of sexual intercourse on the Federal enclaves between people who were not married to each other, and I suppose it would have been open to Williams, even in the absence of a carnal knowledge statute, to say Congress has occupied the field. The absence of any statutory rape provision should be taken to reflect an implicit determination that Congress believes the age of the parties to be irrelevant--

JUSTICE SOUTER: In other words, to look to intent, it would have been an intent argument, an intent of Congress argument.

MR. STEWART: I think it is an intent of--

JUSTICE SOUTER: May I go behind that with this question? What gives me pause about the--let's say the primacy of your analytical test, so that you get to the intent element only if there's--if you need a tiebreaker, more or less, my concern about giving the primacy to the purely analytical test is that, with respect to every statute, criminal statute that Congress passes, it will have to remain constantly on guard to see whether a State legislature addresses the general criminal conduct in a slightly more specific way, knowing on your test that, if the State legislature does, suddenly the Federal statute has shrunk. And it's very difficult--I mean, since we're construing an act of Congress here, it's very difficult for me to believe that Congress would have meant us to interpret it in a way that is in effect going to force Congress to keep its eye on what's going on in every single State legislature whenever it's in session, just to see if the legislature addresses a general problem with a statute of greater specificity than Congress does. What's your response?

MR. STEWART: I think there are two responses. At the most basic level, the reason that Congress is in that predicament, if you want to call it that, is simply that it's enacted the Assimilative Crimes Act.

But the second reason is that up until 1948, the way the Assimilative Crimes Act was worded it said that people can be prosecuted for committing State crimes that were in effect under the law of the State at the time of the last reenactment of the Assimilative Crimes Act.

JUSTICE SOUTER: But it doesn't say that any more.

MR. STEWART: It doesn't say that any more. And so up until 1948 it was possible at least to indulge the fiction that Congress had chosen to assimilate State law because it had individually examined the laws of the States and found them to be good. What Congress did in 1948 was in essence say, we trust the States enough to provide for the assimilation of State law offenses that have not even been enacted, that we've had no opportunity to scrutinize, because we see an independent value in maintaining consistency between the law within the enclaves and the law of the surrounding areas.

JUSTICE SOUTER: But you have to--I mean, the corollary of that is, every time Congress enacts a general criminal statute, it's doing it at least with the imputed intent that that statute will, in fact, become inapplicable within the enclaves if there is now or hereafter a more specific State statute, and I--

MR. STEWART: The Federal statute would not be rendered inapplicable simply because the Assimilative Crimes Act is available.

JUSTICE SCALIA: You can have both.

MR. STEWART: It's a common rule that this Court has announced most obviously in--

JUSTICE SCALIA: It would be subject to choice.

MR. STEWART: Right, subject to choice.

JUSTICE SCALIA: Subject to choice. You're right. You're right.

MR. STEWART: Subject to choice.

JUSTICE SOUTER: But isn't--

JUSTICE SCALIA: Just as it is in the States, anyway. I mean--

MR. STEWART: That's correct.

JUSTICE SCALIA: --they would have to face that question with respect to citizens who are not in enclaves. Do they want to enact a Federal statute that's going to more or less duplicate State statutes that already exist?

MR. STEWART: That's correct, and I think if we look at the development of the Federal murder--if we look at the development of the Federal murder statute, that the statute itself doesn't speak to the age of the victim, and one might ask the question, why has Congress failed to enact a child murder provision, and one possible answer would be that Congress has scrutinized laws like Louisiana and finds them to be unwise.

Another answer might be, Congress understands that the Assimilative Crimes Act is out there, and is content for child murder provisions either to be enforced or not be enforced.

JUSTICE O'CONNOR: Well, but Congress has focused a lot on whether it wants a death penalty or not, and in what circumstances. There's been a lot of focus on that.

MR. STEWART: There has been, and I think this--the case would present different questions if we attempted to impose the death penalty under the Assimilative Crimes Act.

JUSTICE BREYER: No, no, it's the same. I mean, the question is whether--you're arguing that the murder one statute in Louisiana applies. I take it you don't argue the murder two statute applies, do you?

MR. STEWART: No. That would essentially duplicate the--

JUSTICE BREYER: Well, if--so, fine, and the main difference between the murder one and the murder two in Louisiana, in fact I think the only difference, is the death penalty.

And if you then compare it with the Federal law, what you discover, as you said, is a big difference, I would think, is the death penalty, and then in addition the term of years is longer, so you have both. That's true. The death penalty seems a big part of it.

MR. STEWART: I think so. I--

JUSTICE SCALIA: You think so. How do you squeeze that into the word, act or omission? I mean, whatever else the Assimilative Crime Act doesn't cover, it surely bears no reference to what the punishment is.

MR. STEWART: Well, but the Assimilative Crime Act does say at the end of the section that a person who is guilty of an act or omission which is, although not made punishable by Federal law, is made punishable by State law, shall be guilty of a like offense and subject to a like punishment.

JUSTICE SCALIA: A like punishment, as a State law, but as to the question of whether the State law applies or not, it's a difference in the act or omission which you want to define as offense, and maybe you can, but there's no way to define act or omission as punishment, and if you can't define act or omission as punishment, punishment should have nothing to do with whether the crime is assimilated or not.

MR. STEWART: I agree with that. When I--

JUSTICE SCALIA: Of course you agree with that.(Laughter.)

JUSTICE GINSBURG: But Mr. Stewart, could you remind us of, there was--the act originally used the word offense, and then it changed it to act or omission, and what was the reason for that?

MR. STEWART: It first changed it to act or thing, which was subsequently changed to act or omission. The reason that was given in the legislative history was that it seemed incongruous to use the phrase--the word offense to describe something that was not in fact defined as offense by Federal law, and this Court in Williams stated that the expressed intent of the committee was to continue in force rather than to change the substantive meaning of the statute. And again, it would have been easy in Williams--if the Court had believed in Williams that the phrase, act or omission should refer to a particular incident of primary conduct, it would have been easy for the court in Williams to say, this person would have been guilty of adultery under Federal law, and stopped there.

The Court instead embarked on a lengthy analysis of Congress' development of a Federal statutory rape law and arrived at the conclusion that Congress had implicitly decided that individuals aged 16 or 17 were capable of giving meaningful consent to sexual relations.

JUSTICE GINSBURG: Well, why couldn't one decide, looking at this whole picture, as was suggested by Mr. Granger, I think, that there's the punishment for murder, and then there's the guidelines that say you take into account the vulnerability of the victim, so looking at it as a whole, Congress has essentially dealt with these elements but in a different way?

MR. STEWART: I think it's fair to say that looking at the system as a whole there is some role to play in considering the age of the victim in sentencing a defendant on a charge of Federal second degree murder. That doesn't mean that Congress has addressed the question at the same level of specificity as the States. And the point I wanted to get back to was, we really don't know why Congress has failed to enact a child murder provision, whether it's because they find such a provision to be undesirable, whether it's because they're content to let the States do what they will on the enclaves, or whether they simply hasn't--haven't thought about it.

JUSTICE BREYER: Well, in 1994 they passed a huge law that has chapters in it like crimes against children, violence against women, amending the assault statute, and so forth. I thought Congress has now specifically focused on this.

MR. STEWART: Certainly Congress has addressed some aspects of the problem of violence against children. The point I was making was, Congress has not enacted a provision that speaks directly to the question, when is the age of a murder victim deemed to be a more culpable offense, and I think that what you do with that--

JUSTICE SOUTER: No, but isn't--doesn't that--I mean, doesn't Justice Breyer's question raise the same problem, in effect, that Williams raises, because it's quite true Congress did not make this precise category of murder a separate offense the way the State did, so you say, aha, the State statute is at a lower level of generality, at a higher level of specificity, and therefore it prevails. And yet what Congress has done, at least in '94--I realize this is a '93 crime, but just for analytical purposes here, what Congress has done is to say, aha, there will be this specific murder category, that specific murder category, that specific category of crimes against children, and that sounds a lot like what was going on in Williams. It sounds as though Congress is saying, yeah, we are, in fact, going to legislate at a very high level of specificity, but we're not going to make a specific murder provision for this particular subcategory, and that sounds a lot like Williams. And therefore I would suppose that if you follow the Williams analysis you would say, both State and Federal are legislating at the same level of specificity, and we think the Federal crime ought to--if you follow the Williams analogy, we think the Federal--that Congress' intent was not to assimilate, that the Federal crime would be the sole one because it had addressed the issue and probably meant to occupy the field. Why do you come out differently here?

MR. STEWART: Well, I think there are two reasons. First, we do see a difference in specificity as between this case and Williams. That is, in Williams, Congress really had focused on the precise question, at what age does an individual become capable of giving legally meaningful consent to sexual relations, and that's on a different level of generality from what Congress has done in the statutes that you refer to, namely, address other parts of the problem of violence against children.

JUSTICE SOUTER: Congress has said what particular crimes ought to be defined with reference to children, or reference to age.

MR. STEWART: I think--

JUSTICE SOUTER: I mean, this is the--well, go--I'm sorry.

MR. STEWART: I think what is really crucial here is the default rule that the Court adopts. That is, if the Court's default rule is that application of State law to Federal enclaves should be treated with suspicion, should be reserved for those situations where we really feel quite sure that

Congress hasn't spoken to the question at all, then you're right, we lose. Our default rule is that individuals all over the country are normally subject to concurrent State and Federal jurisdiction, and an individual should be insulated from potential prosecution and punishment for State law crimes only if Congress has made it very, very clear that it has addressed the precise question at issue and has arrived at a different conclusion.

JUSTICE KENNEDY: You began with a construction of the statute, and I--as I understand it, all that did for us was to get us out of the conduct test.

MR. STEWART: Well--

JUSTICE KENNEDY: Now we're arguing, or trying to decide whether or not your specificity test or what I would call the preemption test of the petitioner is the better of the two, and I don't think the statute helped us much between those two alternatives, or am I--

MR. STEWART: I think you're right. I think we are construing the phrase, made punishable. We are asking, what does it mean to say that a State law offense has been made punishable by an act of Congress, and our view is, it's been made punishable only if Congress has spoken very precisely to the specific class of conduct that constitutes the State offense. But we would readily concede we don't particularly draw that from the literal, necessary significance of the words, made punishable. We draw it instead from what we take to be the underlying premises of the Assimilative Crime Act. That is--

JUSTICE KENNEDY: Is the result of your submission that in most cases the harsher of the two sanctions will apply, or is that not the way it's going to work most of the time?

MR. STEWART: I don't know how that will work. Certainly the result of our solution will be that there will be more cases in which the Federal prosecutor will have a choice between two statutes, and I would suppose at least in some of those cases the prosecutor will choose the one that has the harsher penalty. What the point--

JUSTICE SOUTER: Mr. Stewart, your answer to Justice Scalia pointed out quite rightly that concurrent jurisdiction and--I mean, concurrent--subjection to concurrent schemes of law is the norm now. Is that a legitimate basis for us to consider in construing this statute, because this statute was intended to address the case in which there is a hiatus, shall State law fill it, and now you're saying, well, we'll use this statute to answer a different question. There is, we presume, a concurrence, and when is it illegitimate not to recognize that concurrence, and that's a different kind of question.

MR. STEWART: I think it is a different kind of question. When I spoke of the background norm that individuals are typically subject to concurrent State and Federal law, obviously Congress could have adopted a different regime for the enclaves if had chosen.

For one thing, Congress might have decided, for instance, that the criminal law applicable to all the Federal enclaves shall be the Criminal Code of the District of Columbia, which in a sense is the quintessential Federal enclave. If Congress had placed preeminent importance on maintaining uniformity among the enclaves, a solution like that might have occurred to it. I think the solution that it chose, assimilating State law, reflects the premise that there was an independent value in maintaining consistency between the enclaves and the surrounding areas of the State, that an enclave is in a meaningful respect part of the State in which it's located.

JUSTICE GINSBURG: In practical effect, then, it would give the prosecutor on the enclaves the kind of authority that the U.S. Attorney for the District of Columbia has. That is, to pick--he could--here, he could pick also courts, but pick whether to indict under the D.C. Code or under the U.S. Code.

MR. STEWART: I think that's correct. With--again, with the reminder that because the prosecution would be brought by a single sovereign, the double jeopardy rules applicable to multiple punishments would apply as they would to any claim of multiple punishments by the Federal Government.

JUSTICE BREYER: The trouble with the--I can see the practical consequence being, well, so what, they just have both jurisdictions. On the other hand, this book of the Federal Criminal Code didn't used to be, but now it's many times bigger than most State codes, and so what I would fear with your approach is, thousands of cases we're parsing the words of--differently written in State and Federal statutes to try to figure out whether your analytic test or your other test or both are or are not applicable.

MR. STEWART: I think our test is actually easier to administer than the competing test. That is, it's certainly not going to be a problem to compare the elements of a State offense to the elements of the Federal offense that's alleged to be preemptive and determine whether they are precisely the same elements. Now, it's true that the second step of our inquiry will involve a certain amount of indeterminacy, but again, our basic point is, the use of the Assimilative Crimes Act should be precluded only when it is quite clear that Congress has spoken to the precise question and that, in the run of cases, is going to be an easier test to administer than simply one that asks, is it close enough.

CHIEF JUSTICE REHNNQUIST: Thank you, Mr. Stewart. Mr. Granger, you have 3 minutes remaining.

MR. GRANGER: I think the question really is, the Louisiana statute really is more a death penalty statute than merely an attempt to particularly define child killing, but I think--

JUSTICE SCALIA: So you're relying on the death penalty. Did you do that in your brief? I don't recall that.

MR. GRANGER: Not--no, sir, Your Honor.

JUSTICE SCALIA: But it seems like a good idea to you now.(Laughter.)

MR. GRANGER: No, but I--

JUSTICE SCALIA: Can you tell me how you get that into the language of the statute?

MR. GRANGER: Because of the fact that you have to bring the punishment along with the crime.

JUSTICE SCALIA: Yes, but that isn't the criterion--

MR. GRANGER: Correct.

JUSTICE SCALIA: --of whether the statute assimilates the State law or not.

MR. GRANGER: I agree with you, Justice--

JUSTICE SCALIA: The criterion is act or omission. Is there any way to get punishment within the meaning of act or omission?

MR. GRANGER: No, I don't believe so, Justice--

JUSTICE SCALIA: I didn't think so.

JUSTICE BREYER: Well, why don't--isn't there a way to get it in which is, you want to know whether Congress, in passing these other laws, really intended to forego picking up the Louisiana law, and I guess Congress would look at what the difference is, wouldn't it?

MR. GRANGER: I would think so, Justice Breyer. Also, I think that if we look at 18 U.S.C. 3551 it also allows the bringing in, even though it may be an assimilated State crime, you have to look at the guideline.

CHIEF JUSTICE REHNQUIST: Which section is it again?

MR. GRANGER: 3551, Your Honor.

CHIEF JUSTICE REHNQUIST: Thank you.

JUSTICE SCALIA: What does 3551 say?

MR. GRANGER: Because--what it does, Justice Scalia, is that if you have an assimilated State crime, you then have to look at the guideline that's most analogous to that particular crime.

JUSTICE SCALIA: Fine.

MR. GRANGER: And I think that--

JUSTICE SCALIA: Fine, but how does that relate to Congress' intent that Justice Breyer is talking about? Can you attach that congressional intent to some enactment?

MR. GRANGER: I don't think I can.

JUSTICE SCALIA: Or is it just sort of a wandering congressional intent unreflected in the United States Code?

MR. GRANGER: It may be the latter, Justice Scalia.

JUSTICE SCALIA: Okay.

JUSTICE SOUTER: Well, it's an act or omission made punishable, and I suppose it's a legitimate question to say, well, made punishable how?

MR. GRANGER: Correct.

JUSTICE SOUTER: And as Justice Breyer suggested, when you ask, made punishable how, by a lot, by a little, you are, in fact, focusing ultimately on an issue of intent, and I take it--I mean, that's what you want us to do, I take it.

MR. GRANGER: Correct, but Justice Souter, more importantly, I think what gives me pause is that the argument of the Government then states that people are subjected to two different jurisdictions. Well, if you're on a Federal enclave, I don't think you really are subjected to State law.

You're subjected to Federal law for a Federal crime on a Federal enclave, so the inquiry is, and what it's always been when we're dealing with these kind of cases is, has Congress enacted a law that prescribes or punishes, makes punishable this conduct? If it has, you don't need to look to State law.

Otherwise, what we're going to have is 50 States and numerous military reservations all over, and then the U.S. Attorney is going to be forced to say, well, Louisiana defines it a little bit differently here, so I'm going to use Louisiana law.

What happens to the Federal law? Is it even necessary any more? Why, then, has Congress chosen, even in the 1940's, to reenact the Assimilative Crimes Act to say we don't have to keep reenacting this act. Any time Congress--and this is what Sharpnack was saying.

Any time Congress makes a new enactment it's automatically going to be brought over. It's going to preempt the field. It's going to cover the area. We don't have to get into this argument every single time that Congress chooses to do something.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Granger. The case is submitted.