Cite as: 523 U. S. 155 (1998)
Scalia, J., concurring in judgment
easily and mechanically applied, and has the virtue of producing consistent and predictable results.
The Blockburger test, however, establishes what constitutes the "same offence" for purposes of the traditional practice that underlies the Double Jeopardy Clause, U. S. Const., Amdt. 5. That constitutional guarantee not only assumes a scheme of "offences" much more orderly than those referred to by the ACA (since they are the offenses designed by a single sovereign), but also pursues policy concerns that are entirely different. When it is fair to try a defendant a second time has little to do with when it is desirable to subject a defendant to two separate criminal prohibitions. Thus, for example, double jeopardy law treats greater and lesser included offenses as the same, see, e. g., Harris v. Oklahoma, 433 U. S. 682 (1977) (per curiam), so that a person tried for felony murder cannot subsequently be prosecuted for the armed robbery that constituted the charged felony. That is fair enough; but it is assuredly not desirable that a jurisdiction (the federal enclave) which has an armed robbery law not have a felony-murder law. Contrariwise, as the Court's opinion points out, ante, at 163, Blockburger's emphasis on the formal elements of crimes causes it to deny the "sameness" of some quite similar offenses because of trivial differences in the way they are defined. In other words, the Blockburger test gives the phrase "same offence" a technical meaning that reflects our double jeopardy traditions, see Grady v. Corbin, 495 U. S. 508, 528-536 (1990) (Scalia, J., dissenting), but that is neither a layman's understanding of the term nor a meaning that produces sensible results for purposes of "gap filling." There is no reason to assume, it seems to me, that Congress had the term of art in the Double Jeopardy Clause in mind when it enacted the ACA.
Justice Kennedy contends that all of these concerns can be accommodated through adjustments to the Blockburger test. In his view, for example, "the existence of a lesser included federal offense does not prevent the assimilation of
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