JUSTICE WHITE delivered the opinion of the Court.
The question for decision is whether the Double Jeopardy Clause bars the prosecution of respondent for first-degree murder following his breach of a plea agreement under which he had pleaded guilty to a lesser offense, had been sentenced, and had begun serving a term of imprisonment. The Court of Appeals for the Ninth Circuit held that the prosecution of respondent violated double jeopardy principles and directed the issuance of a writ of habeas corpus. We reverse.
In 1976, Donald Bolles, a reporter for the Arizona Republic, was fatally injured when a dynamite bomb exploded underneath his car. Respondent was arrested and charged with first-degree murder in connection with Bolles' death. Shortly after his trial had commenced, while jury selection was underway, respondent and the state prosecutor reached an agreement whereby respondent agreed to plead guilty to a charge of second-degree murder and to testify against two other individuals — Max Dunlap and James Robison — who were allegedly involved in Bolles' murder. Specifically, respondent agreed to "testify fully and completely in any Court, State or Federal, when requested by proper authorities
The State sought respondent's cooperation and testimony in preparation for the retrial of Dunlap and Robison. On April 3, 1980, however, respondent's counsel informed the prosecutor that respondent believed his obligation to provide testimony under the agreement had terminated when he was sentenced. Respondent would again testify against Dunlap and Robison only if certain conditions were met, including, among others, that the State release him from custody following the retrial. 789 F. 2d, at 733.
On May 8, 1980, the State filed a new information charging respondent with first-degree murder. Respondent's motion to quash the information on double jeopardy grounds was denied. Respondent challenged this decision by a special action in the Arizona Supreme Court. That court, after reviewing the plea agreement, the transcripts of the plea hearing and the sentencing hearing, respondent's April 3 letter to the state prosecutor, and the prosecutor's April 9 response to that letter, held with "no hesitation" that "the plea agreement contemplates availability of [respondent's] testimony whether at trial or retrial after reversal," Adamson v. Superior Court of Arizona, 125 Ariz. 579, 583, 611 P.2d 932, 936 (1980), and that respondent "violated the terms of the plea agreement." Ibid.
After these rulings, respondent offered to testify at the retrials, but the State declined his offer. Respondent sought federal habeas relief, arguing that the Arizona Supreme Court had misconstrued the terms of the plea agreement. The District Court dismissed his petition, the Court of Appeals for the Ninth Circuit affirmed, Adamson v. Hill, 667 F.2d 1030 (1981), and we denied respondent's petition for a writ of certiorari. 455 U.S. 992 (1982).
Respondent was then convicted of first-degree murder and sentenced to death. The judgment was affirmed on direct appeal, State v. Adamson, 136 Ariz. 250, 665 P.2d 972, and we denied certiorari. 464 U.S. 865 (1983). Respondent sought federal habeas corpus for the second time, asserting a number of claims relating to his trial and sentence. The District Court dismissed the petition; a Court of Appeals panel affirmed. 758 F.2d 441 (1985). The Court of Appeals went en banc, held that the State had violated respondent's rights under the Double Jeopardy Clause, and directed the issuance of a writ of habeas corpus. The en banc opinion reasoned that respondent had not waived his double jeopardy rights by entering into the plea agreement, asserting that "[i]t may well be argued that the only manner in which [respondent] could have made an intentional relinquishment of a known double jeopardy right would be by waiver `spread on the record' of the court after an adequate explanation." 789 F. 2d, at 728 (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). Even if double jeopardy rights could be waived by implication, no such waiver occurred here since "[a]greeing
We may assume that jeopardy attached at least when respondent was sentenced in December 1978, on his plea of guilty to second-degree murder. Assuming also that under Arizona law second-degree murder is a lesser included offense of first-degree murder, the Double Jeopardy Clause, absent special circumstances,
The agreement specifies in two separate paragraphs the consequences that would flow from respondent's breach of his promises. Paragraph 5 provides that if respondent refused to testify, "this entire agreement is null and void and the original charge will be automatically reinstated." Ibid. (emphasis added). Similarly, Paragraph 15 of the agreement states that "[i]n the event this agreement becomes null and void, then the parties shall be returned to the positions they were in before this agreement." Id., at 732. Respondent unquestionably understood the meaning of these provisions. At the plea hearing, the trial judge read the plea agreement to respondent, line by line, and pointedly asked respondent whether he understood the provisions in Paragraphs 5 and 15. Respondent replied "Yes, sir," to each question. App. 23-24, 28-29. On this score, we do not find it significant, as did the Court of Appeals, that "double jeopardy" was not specifically waived by name in the plea agreement. Nor are we persuaded by the court's assertion that "[a]greeing that charges may be reinstituted . . . is not equivalent to agreeing
We are also unimpressed by the Court of Appeals' holding that there was a good-faith dispute about whether respondent was bound to testify a second time and that until the extent of his obligation was decided, there could be no knowing and intelligent waiver of his double jeopardy defense. But respondent knew that if he breached the agreement he could be retried, and it is incredible to believe that he did not anticipate that the extent of his obligation would be decided by a court. Here he sought a construction of the agreement in the Arizona Supreme Court, and that court found that he had failed to live up to his promise. The result was that respondent was returned to the position he occupied prior to execution of the plea bargain: he stood charged with first-degree murder. Trial on that charge did not violate the Double Jeopardy Clause. United States v. Scott, 437 U.S. 82 (1978), supports this conclusion.
Respondent cannot escape the Arizona Supreme Court's interpretation of his obligations under the agreement. The State did not force the breach; respondent chose, perhaps for strategic reasons or as a gamble, to advance an interpretation of the agreement that proved erroneous. And, there is no indication that respondent did not fully understand the potential seriousness of the position he adopted. In the April 3 letter, respondent's counsel advised the prosecutor
Finally, it is of no moment that following the Arizona Supreme Court's decision respondent offered to comply with the terms of the agreement. At this point, respondent's second-degree murder conviction had already been ordered vacated and the original charge reinstated. The parties did not agree that respondent would be relieved from the consequences of his refusal to testify if he were able to advance a colorable argument that a testimonial obligation was not owing. The parties could have struck a different bargain, but permitting the State to enforce the agreement the parties actually made does not violate the Double Jeopardy Clause.
The judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting.
The critical question in this case is whether Adamson ever breached his plea agreement. Only by demonstrating that such a breach occurred can it plausibly be argued that Adamson waived his rights under the Double Jeopardy Clause. By simply assuming that such a breach occurred, the Court ignores the only important issue in this case.
I begin by demonstrating that, even if one defers to the Arizona Supreme Court's construction of the plea agreement, one must conclude that Adamson never breached that agreement.
At the heart of this case is a plea bargain, an agreement to be interpreted in a constitutional context. We are asked to define the constitutional rights and responsibilities that arise from the language of that agreement, from the Due Process Clause of the Fourteenth Amendment, and from the Double Jeopardy Clause of the Fifth Amendment. The Court correctly observes that it must "assess independently the plea agreement's effect on respondent's double jeopardy rights." Ante, at 6, n. 3. I think that the Court errs, however, in concluding that its assessment can proceed without an independent examination, informed by due process principles, of Adamson's actions under that agreement. Ibid. Deferring to the Arizona Supreme Court's construction of the agreement cannot relieve the Court of its responsibility to determine whether, in light of that construction, Adamson can be held to have lost his federal constitutional protection against being placed twice in jeopardy. The requirements of due process have guided this Court in evaluating the promises and conduct of state prosecutors in securing a guilty plea. Santobello v. New York, 404 U.S. 257 (1971). There is no reason to ignore those requirements here.
Without disturbing the conclusions of the Arizona Supreme Court as to the proper construction of the plea agreement,
Second, Adamson's interpretation of the agreement — that he was not required to testify at the retrials of Max Dunlap and James Robison — was reasonable. Nothing in the plea agreement explicitly stated that Adamson was required to provide testimony should retrials prove necessary. Moreover, the agreement specifically referred in two separate paragraphs to events that would occur only after the conclusion of all testimony that Adamson would be required to give. Paragraph 8 stated that Adamson "will be sentenced at the conclusion of his testimony in all of the cases referred to in this agreement and Exhibits A and B, which accompany it." 789 F.2d 722, 732 (CA9 1986) (emphasis added). At the
In sum, Adamson could lose his protection against double jeopardy only by breaching his agreement, and Adamson's interpretation of his responsibilities under the agreement, though erroneous, was reasonable. The next step in the analysis is to determine whether Adamson ever breached his agreement.
This Court has yet to address in any comprehensive way the rules of construction appropriate for disputes involving plea agreements. Nevertheless, it seems clear that the law of commercial contract may in some cases prove useful as an analogy or point of departure in construing a plea agreement, or in framing the terms of the debate. E. g., Blackledge v. Allison, 431 U.S. 63, 75, n. 6 (1977). It is also clear, however, that commercial contract law can do no more than this, because plea agreements are constitutional contracts. The values that underlie commercial contract law, and that govern the relations between economic actors, are not coextensive with those that underlie the Due Process Clause, and that govern relations between criminal defendants and the State. Unlike some commercial contracts, plea agreements must be construed in light of the rights and obligations created by the Constitution.
The State argues and the Arizona Supreme Court seems to imply that a breach occurred when Adamson sent his letter of April 3, 1980, to the prosecutor in response to the State's demand for his testimony at the retrials of Dunlap and Robison. See ante, at 5. In this letter, Adamson stated that, under his interpretation of the agreement, he was no longer obligated to testify, and demanded additional consideration for any additional testimony. Ante, at 4-5, n. 2.
Neither the State, the state courts, nor this Court has attempted to explain why this letter constituted a breach of the agreement.
We have held in the commercial sphere that a letter of the sort that Adamson sent does not constitute anticipatory repudiation. In New York Life Ins. Co. v. Viglas, 297 U.S. 672 (1936), the Court addressed the question whether an insurance company's notification to a policyholder that it would henceforth refuse to continue paying disability benefits constituted a breach of the contract. The Court ultimately found that the company's subsequent action to stop payment constituted a breach of the agreement, noting that the insurance company's refusal was based on unfounded facts. Id., at 678. But the Court held that the notification alone did not constitute a breach by repudiation. As Justice Cardozo explained, for a unanimous Court:
The law has been settled since Viglas that "[a]n offer to perform in accordance with the promisor's interpretation of the contract although erroneous, if made in good faith, is not such a clear and unequivocal refusal to perform as amounts to a renunciation giving rise to an anticipatory breach." Kimel v. Missouri State Life Ins. Co., 71 F.2d 921, 923 (CA10 1934).
Adamson has done no more here to repudiate his plea agreement than did the New York Life Insurance Company in Viglas, or the Missouri State Life Insurance Company in Kimel. After his lawyers were informed, by telephone, of the State's view that his plea agreement obligated him to testify, he responded with a letter advancing his own reasonable interpretation of the agreement. Although the area of
Of course, far from being a commercial actor, Adamson is an individual whose "contractual" relation with the State is governed by the Constitution. The determination of Adamson's rights and responsibilities under the plea agreement is controlled by the principles of fundamental fairness imposed
This right requires no exotic apparatus for enforcement. Indeed, it requires nothing more than common civility. If the defendant offers an interpretation of a plea agreement at odds with that of the State, the State should notify the defendant of this fact, particularly if the State is of the view that continued adherence to defendant's view would result in breach of the agreement. If the State and the defendant are then unable to resolve their dispute through further discussion, a ready solution exists — either party may seek to have the agreement construed by the court in which the plea was entered. By following these steps the State would have placed far fewer demands on the judicial process than were in fact imposed here, and would have fulfilled its constitutional obligation to treat all persons with due respect.
The unfairness of the Court's decision does not end here. Even if one assumes, arguendo, that Adamson breached his plea agreement by offering an erroneous interpretation of that agreement, it still does not follow that the State was entitled to retry Adamson on charges of first-degree murder.
The State decided instead to abandon the prosecution of Dunlap and Robison, and to capitalize on what it regarded as Adamson's breach by seeking the death penalty against him. No doubt it seemed easier to proceed against Adamson at that point, since the State had the benefit of his exhaustive testimony about his role in the murder of Don Bolles. But even in the world of commercial contracts it has long been settled that the party injured by a breach must nevertheless take all reasonable steps to minimize the consequent damage. One prominent commentator has explained the rule in this way:
In addition to abdicating its responsibility to consider carefully the contractual and due process elements of this case, the Court does violence to the only area of constitutional law that it does address, double jeopardy. The Double Jeopardy Clause states that "No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." The Court's explanation of how Adamson has waived this protection is unsupported by case law or logic.
"A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Because we " `indulge every reasonable presumption against waiver' of fundamental constitutional rights," ibid., we generally will enforce only those waivers that are knowing, intelligent, and voluntary. In certain circumstances, however, the Court has enforced waivers of the double jeopardy rights that would not meet this standard. For example, the Double Jeopardy Clause has been held not to bar retrial of a defendant who
In United States v. Scott, 437 U.S. 82 (1978), the Court extended the logic of Dinitz to cases in which the defendant successfully moved to dismiss the indictment "on a basis unrelated to factual guilt or innocence of the offense of which he is accused." 437 U. S., at 98-99. Two reasons supported the judgment. First, as in Dinitz, the defendant, in choosing to move to dismiss, retained control over the proceedings. 437 U. S., at 93-94, 98-99. Second, even though dismissal, unlike a mistrial, resulted in a final judgment normally held to bar reprosecution, the Court found it crucial that the proceedings had ended in midtrial, hence "without any submission to either judge or jury as to [defendant's] guilt or innocence." Id., at 101.
The Court today relies exclusively on the first rationale of United States v. Scott. It argues that because Adamson fully understood the implications of breaching his agreement and made a voluntary choice to breach that agreement, he may be held to the consequences of his choice.
Scott alone cannot support the decision here. First, Adamson obviously did not retain control over the course of
Second, this case does not involve a midtrial decision by a defendant to terminate the trial. It is therefore not a case in which the public has been deprived of its valued right to one complete opportunity to convict someone charged with breaking the law. Unlike Dinitz, and unlike Scott, Adamson had his guilt determined by a court prior to the alleged waiver of double jeopardy. As the Court reiterated in Scott, "the primary purpose of the Double Jeopardy Clause was to protect the integrity of a final judgment." 437 U. S., at 92. The comparatively limited extent to which Scott violated the integrity of a final judgment is itself unique in double jeopardy jurisprudence. See id., at 109, n. 6 (BRENNAN, J., dissenting). But in carving out a limited exception for certain final judgments (those entered in midtrial on grounds other than factual guilt or innocence), the Court in Scott offered no reasoning that could be used to undercut the integrity of final judgments as to guilt.
Adamson's interest in protecting the final judgment as to his guilt was substantial. That interest could be protected without compromising society's right to one complete opportunity to obtain a conviction. Adamson did not consciously
The Court's decision flouts the law of contract, due process, and double jeopardy. It reflects a world where individuals enter agreements with the State only at their peril, where the Constitution does not demand of the State the minimal good faith and responsibility that the common law imposes on commercial enterprises, and where, in blind deference to state courts and prosecutors, this Court abdicates its duty to uphold the Constitution. I dissent.
Alluding to the difficulty of determining when an erroneous interpretation of a contract has been offered in "good faith," one commentator has recommended abandoning Viglas in favor of a standard of strict liability, under which any person who advances an interpretation that ultimately proves erroneous may be held to have repudiated the contract. See E. Farnsworth, Contracts 634-636 (1982). By contrast, another commentator who has acknowledged that same difficulty has nevertheless recognized that "the parties must communicate to clarify or modify the agreement to compensate for defects in the agreement process," and has therefore recommended that "[t]he law . . . be structured to encourage the parties to work out [disagreements over the meaning of the contract] whenever possible through good-faith renegotiation and modification; it cannot hope to achieve this goal if good-faith requests for modification are treated as repudiation." Rosett, Partial, Qualified, and Equivocal Repudiation of Contract, 81 Colum. L. Rev. 93, 108 (1981) (footnote omitted). Of course, even if a policy of strict liability were thought meritorious in the commercial sphere, such a policy would be intolerable in the constitutional context, where the demands of due process, discussed infra, require a State to honor a defendant's right to advance a reasonable and good-faith interpretation of an ambiguous plea agreement.