1. Because Dixon's drug offense did not include any element not contained in his previous contempt offense, his subsequent prosecution fails the Blockburger test. Dixon's contempt sanction was imposed for violating the order through commission of the incorporated drug offense. His "crime" of violating a condition of his release cannot be abstracted from the "element" of the violated condition. Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (per curiam). Here, as in Harris, the underlying substantive criminal offense is a "species of lesser-included offense," Illinois v. Vitale, 447 U.S. 410, 420, 100 S.Ct. 2260, 2267, 65 L.Ed.2d 228, whose subsequent prosecution is barred by the Double Jeopardy Clause. The same analysis applies to Count I of Foster's indictment, and that prosecution is barred. Pp. ____.

2. However, the remaining four counts of Foster's indictment are not barred under Blockburger. Foster's first prosecution for violating the CPO provision forbidding him to assault his wife does not bar his later prosecution under Count V, which charges assault with intent to kill. That offense requires proof of specific intent to kill, which the contempt offense did not. Similarly, the contempt crime required proof of knowledge of the CPO, which the later charge does not. The two crimes were different offenses under the Blockburger test. Counts II, III, and IV are likewise not barred. Pp. 2858-2859.

Justice WHITE, joined by Justice STEVENS, concluded that, because the Double Jeopardy Clause bars prosecution for an offense if the defendant already has been held in contempt for its commission, both Dixon's prosecution for possession with intent to distribute cocaine and Foster's prosecution for simple assault were prohibited. Pp. ____, ____.

Justice SOUTER, joined by Justice STEVENS, concluded that the prosecutions below were barred by the Double Jeopardy Clause under this Court's successive prosecution decisions (from In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118, to Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548), which hold that even if the Blockburger test is satisfied, a second prosecution is not permitted for conduct comprising the criminal act charged in the first. Because Dixon's contempt prosecution proved beyond a reasonable doubt that he had possessed cocaine with intent to distribute it, his prosecution for possession with intent to distribute cocaine based on the same incident is barred. Similarly, since Foster has already been convicted in his contempt prosecution for the act of simple assault charged in Count I of his indictment, his subsequent prosecution for simple assault is barred. Pp. ____.

SCALIA, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, in which REHNQUIST, C.J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined, and an opinion with respect to Parts III and V, in which KENNEDY, J., joined. REHNQUIST, C.J., filed an opinion concurring in part and dissenting in part, in which O'CONNOR and THOMAS, JJ., joined. WHITE, J., filed an opinion concurring in the judgment in part and dissenting in part, in which STEVENS, J., joined, and in which SOUTER, J., joined as to Part I. BLACKMUN, J., filed an opinion concurring in the judgment in part and dissenting in part. SOUTER, J., filed an opinion concurring in the judgment in part and dissenting in part, in which STEVENS, J., joined.

William C. Bryson, Washington, DC, for petitioner.

James W. Klein, Washington, DC, for respondent.

Justice SCALIA announced the judgment of the Cour and delivered the opinion of the Court with respect to Parts I, II, and IV, and an opinion with respect to Parts III and V, in which Justice KENNEDY joins.

In both of these cases, respondents were tried for criminal contempt of court for violating court orders that prohibited them from engaging in conduct that was later the subject of a criminal prosecution. We consider whether the subsequent criminal prosecutions are barred by the Double Jeopardy Clause.

* Respondent Alvin Dixon was arrested for second-degree murder and was released on bond. Consistent with the District of Columbia's bail law authorizing the judicial officer to impose any condition that "will reasonably assure the appearance of the person for trial or the safety of any other person or the community," D.C.Code Ann. § 23-1321(a) (1989), Dixon's release form specified that he was not to commit "any criminal offense," and warned that any violation of the conditions of release would subject him "to revocation of release, an order of detention, and prosecution for contempt of court." See § 23-1329(a) (authorizing those sanctions).

While awaiting trial, Dixon was arrested and indicted for possession of cocaine with intent to distribute, in violation of D.C.Code Ann. § 33-541(a)(1) (1988). The court issued an order requiring Dixon to show cause why he should not be held in contempt or have the terms of his pretrial release modified. At the show-cause hearing, four police officers testified to facts surrounding the alleged drug offense; Dixon's counsel cross-examined these witnesses and introduced other evidence. The court concluded that the Government had established " 'beyond a reasonable doubt that [Dixon] was in possession of drugs and that those drugs were possessed with the intent to distribute.' " 598 A.2d 724, 728 (D.C.1991). The court therefore found Dixon guilty of criminal contempt under § 23-1329(c), which allows contempt sanctions after expedited proceedings without a jury and "in accordance with principles applicable to proceedings for criminal contempt." For his contempt, Dixon was sentenced to 180 days in jail. D.C.Code § 23-1329(c) (maximum penalty of six months' imprisonment and $1000 fine). He later moved to dismiss the cocaine indictment on double jeopardy grounds; the trial court granted the motion.

Respondent Michael Foster's route to this Court is similar. Based on Foster's alleged physical attacks upon her in the past, Foster's estranged wife Ana obtained a civil protection order (CPO) in Superior Court of the District of Columbia. See D.C.Code Ann. § 16-1005(c) (1989) (CPO may be issued upon a showing of good cause to believe that the subject "has committed or is threatening an intrafamily offense"). The order, to which Foster consented, required that he not " 'molest, assault, or in any manner threaten or physically abuse' " Ana Foster; a separate order, not implicated here, sought to protect her mother. 598 A.2d, at 725-726.

Over the course of eight months, Ana Foster filed three separate motions to have her husband held in contempt for numerous violations of the CPO. Of the 16 alleged episodes, the only charges relevant here are three separate instances of threats (on November 12, 1987, and March 26 and May 17, 1988) and two assaults (on November 6, 1987, and May 21, 1988), in the most serious of which Foster "threw [his wife] down basement stairs, kicking her body[,] . . . pushed her head into the floor causing head injuries, [and Ana Foster] lost consciousness." 598 A.2d, at 726.

After issuing a notice of hearing and ordering Foster to appear, the court held a 3-day bench trial. Counsel for Ana Foster and her mother prosecuted the action; the United States was not represented at trial, although the United States Attorney was apparently aware of the action, as was the court aware of a separate grand jury proceeding on some of the alleged criminal conduct. As to the assault charges, the court stated that Ana Foster would have "to prove as an elem nt, first that there was a Civil Protection Order, and then [that] . . . the assault as defined by the criminal code, in fact occurred." Tr. in Nos. IF-630-87, IF-631-87 (Aug. 8, 1988), p. 367; accord, id., at 368. At the close of the plaintiffs' case, the court granted Foster's motion for acquittal on various counts, including the alleged threats on November 12 and May 17. Foster then took the stand and generally denied the allegations. The court found Foster guilty beyond a reasonable doubt of four counts of criminal contempt (three violations of Ana Foster's CPO, and one violation of the CPO obtained by her mother), including the November 6, 1987 and May 21, 1988 assaults, but acquitted him on other counts, including the March 26 alleged threats. He was sentenced to an aggregate 600 days' imprisonment. See § 16-1005(f) (authorizing contempt punishment); Sup. Ct. of D.C. Intrafamily Rules 7(c), 12(e) (maximum punishment of six months' imprisonment and $300 fine).

The United States Attorney's Office later obtained an indictment charging Foster with simple assault on or about November 6, 1987 (Count I, violation of § 22-504); threatening to injure another on or about November 12, 1987, and March 26 and May 17, 1988 (Counts II-IV, violation of § 22-2307); and assault with intent to kill on or about May 21, 1988 (Count V, violation of § 22-501). App. 43-44. Ana Foster was the complainant in all counts; the first and last counts were based on the events for which Foster had been held in contempt, and the other three were based on the alleged events for which Foster was acquitted of contempt. Like Dixon, Foster filed a motion to dismiss, claiming a double jeopardy bar to all counts, and also collateral estoppel as to Counts II-IV. The trial court denied the double-jeopardy claim and did not rule on the collateral-estoppel assertion.

The Government appealed the double jeopardy ruling in Dixon, and Foster appealed the trial court's denial of his motion. The District of Columbia Court of Appeals consolidated the two cases, reheard them en banc, and, relying on our recent decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), ruled that both subsequent prosecutions were barred by the Double Jeopardy Clause. 598 A.2d, at 725. In its petition for certiorari, the Government presented the sole question "[w]hether the Double Jeopardy Clause bars prosecution of a defendant on substantive criminal charges based upon the same conduct for which he previously has been held in criminal contempt of court." Pet. for Cert. I. We granted certiorari, 503 U.S. ----, 112 S.Ct. 1759, 118 L.Ed.2d 422 (1992).

To place these cases in context, one must understand that they are the consequence of an historically anomalous use of the contempt power. In both Dixon and Foster, a court issued an order directing a particular individual not to commit criminal offenses. (In Dixon's case, the court incorporated the entire criminal code; in Foster's case, the criminal offense of simple assault.) That could not have occurred at common law, or in the 19th-century American judicial system.

At common law, the criminal contempt power was confined to sanctions for conduct that interfered with the orderly administration of judicial proceedings. 4 W. Blackstone, Commentaries *280-*285. That limitation was closely followed in American courts. See United States v. Hudson and Goodwin, 7 Cranch. 32, 34, 3 L.Ed. 259 (1812); R. Goldfarb, The Contempt Power 12-20 (1963). Federal courts had power to "inforce the observance of order," but those "implied powers" could not support common-law jurisdiction over criminal acts. Hudson and Goodwin, supra, at 34. In 1831, Congress amended the Judiciary Act of 1789, allowing federal courts the summary contempt power to punish generally "disobedience or resistance" to court orders. § 1, Act of March 2, 1831, 4 Stat. 487-488. See Bloom v. Illinois, 391 U.S. 194, 202-204, 88 S.Ct. 1477, 20 L.Ed. d 522 (1968) (discussing evolution of federal courts' statutory contempt power).

The 1831 amendment of the Judiciary Act still would not have given rise to orders of the sort at issue here, however, since there was a long common-law tradition against judicial orders prohibiting violation of the law. Injunctions, for example, would not issue to forbid infringement of criminal or civil laws, in the absence of some separate injury to private interest. See, e.g., 3 Blackstone, supra, at *426, n. 1; J. High, Law of Injunctions § 23, pp. 15-17, and notes (1873) (citing English cases); C. Beach, Law of Injunctions §§ 58-59, pp. 71-73 (1895) (same). The interest protected by the criminal or civil prohibition was to be vindicated at law—and though equity might enjoin harmful acts that happened to violate civil or criminal law, it would not enjoin violation of civil or criminal law as such. See, e.g., Sparhawk v. The Union Passenger R. Co., 54 Pa.St. 401, 422-424 (1867) (refusing to enjoin railroad's violation of Sunday closing law); Attorney General v. The Utica Insurance Co., 2 Johns. Ch. 371, 378 (N.Y.1817) (refusing to enjoin violation of banking statute).

It is not surprising, therefore, that the double jeopardy issue presented here—whether prosecution for criminal contempt based on violation of a criminal law incorporated into a court order bars a subsequent prosecution for the criminal offense—did not arise at common law, or even until quite recently in American cases. See generally Zitter, Contempt Finding as Precluding Substantive Criminal Charges Relating to Same Transaction, 26 A.L.R. 4th 950, 953-956 (1983). English and earlier American cases do report instances in which prosecution for criminal contempt of court—as originally understood —did not bar a subsequent prosecution for a criminal offense based on the same conduct. See, e.g., King v. Lord Ossulston, 2 Str. 1107, 93 Eng.Rep. 1063 (K.B.1739); State v. Yancy, 4 N.C. 133 (1814). But those contempt prosecutions were for disruption of judicial process, in which the disruptive conduct happened also to be criminal.

The Double Jeopardy Clause, whose application to this new context we are called upon to consider, provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const., Amdt. 5. This protection applies both to successive punishments and to successive prosecutions for the same criminal offense. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). It is well established that criminal contempt, at least the sort enforced through nonsummary proceedings, is "a crime in the ordinary sense." Bloom, supra, at 201, 88 S.Ct., at 1481. Accord, New Orleans v. The Steamship Co., 20 Wall. 387, 392, 22 L.Ed. 354 (1874).

We have held that constitutional protections for criminal defendants other than the double jeopardy provision apply in nonsummary criminal contempt prosecutions just as they do in other criminal prosecutions. See, e.g., Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 499, 55 L.Ed. 797 (1911) (presumption of innocence, proof beyond a reasonable doubt, and guarantee against self-incrimination); Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 395, 69 L.Ed. 767 (1925) (notice of charges, assistance of counsel, and right to present a defense); In re Oliver, 333 U.S. 257, 278, 68 S.Ct. 499, 510, 92 L.Ed. 682 (1948) (public trial). We think it obvious, and today hold, that the protection of the Double Jeopardy Clause likewise attaches. Accord, Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam); Colombo v. New York, 405 U.S. 9, 92 S.Ct. 756, 30 L.Ed.2d 762 (1972) (per curiam).

In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the "same-elements" test, the double jeopar y bar applies. See, e.g., Brown v. Ohio, 432 U.S. 161, 168-169, 97 S.Ct. 2221, 2226-2227, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (multiple punishment); Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911) (successive prosecutions). The same-elements test, sometimes referred to as the "Blockburger" test, inquires whether each offense contains an element not contained in the other; if not, they are the "same offence" and double jeopardy bars additional punishment and successive prosecution. In a case such as Yancy, for example, in which the contempt prosecution was for disruption of judicial business, the same-elements test would not bar subsequent prosecution for the criminal assault that was part of the disruption, because the contempt offense did not require the element of criminal conduct, and the criminal offense did not require the element of disrupting judicial business.1

We recently held in Grady that in addition to passing the Blockburger test, a subsequent prosecution must satisfy a "same-conduct" test to avoid the double jeopardy bar. The Grady test provides that, "if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted," a second prosecution may not be had. 495 U.S., at 510, 110 S.Ct., at 2087.

* The first question before us today is whether Blockburger analysis permits subsequent prosecution in this new criminal contempt context, where judicial order has prohibited criminal act. If it does, we must then proceed to consider whether Grady also permits it. See Grady, supra, at 516, 110 S.Ct., at 2090.

We begin with Dixon. The statute applicable in Dixon's contempt prosecution provides that "[a] person who has been conditionally released . . . and who has violated a condition of release shall be subject to . . . prosecution for contempt of court." § 23-1329(a). Obviously, Dixon could not commit an "offence" under this provision until an order setting out conditions was issued. The statute by itself imposes no legal obligation on anyone. Dixon's cocaine possession, although an offense under D.C.Code Ann. § 33-541(a) (1988 and Supp.1992), was not an offense under § 23-1329 until a judge incorporated the statutory drug offense into his release order.

In this situation, in which the contempt sanction is imposed for violating the order through commission of the incorporated drug offense, the later attempt to prosecute Dixon for the drug offense resembles the situation that produced our judgment of double jeopardy in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam). There we held that a subsequent prosecution for robbery with a firearm was barred by the Double Jeopardy Clause, because the defendant had already been tried for felony-murder based on the same underlying felony. We have described our terse per curiam in Harris as standing for the proposition that, for double jeopardy purposes, "the crime generally described as felony murder" is not "a separate offense distinct from its various elements." Illinois v. Vitale, 447 U.S. 410, 420-421, 100 S.Ct. 2260, 2267, 65 L.Ed.2d 228 (1980). Accord, Whalen v. United States, 445 U.S. 684, 694, 100 S.Ct. 1432, 1439, 63 L.Ed.2d 715 (1980). So too here, the "crime" of violating a condition of release cannot be abstracted from the "element" of the violated condition. The Dixon court order incorporated the entire governing criminal code in the same manner as the Harris felony-murder statute incor orated the several enumerated felonies. Here, as in Harris, the underlying substantive criminal offense is "a species of lesser-included offense."2 Vitale, supra, 447 U.S., at 420, 100 S.Ct., at 2267. Accord, Whalen, supra.

To oppose this analysis, the Government can point only to dictum in In re Debs, 158 U.S. 564, 594, 599-600, 15 S.Ct. 900, 910, 912, 39 L.Ed. 1092 (1895), which, to the extent it attempted to exclude certain nonsummary contempt prosecutions from various constitutional protections for criminal defendants, has been squarely rejected by cases such as Bloom, 391 U.S., at 208, 88 S.Ct., at 1485-1486. The Government also relies upon In re Chapman, 166 U.S. 661, 17 S.Ct. 677, 41 L.Ed. 1154 (1897), and Jurney v. MacCracken, 294 U.S. 125, 55 S.Ct. 375, 79 L.Ed. 802 (1935), which recognize Congress' power to punish as contempt the refusal of a witness to testify before it. But to say that Congress can punish such a refusal is not to say that a criminal court can punish the same refusal yet again. Neither case dealt with that issue, and Chapman specifically declined to address it, noting that successive prosecutions (before Congress for contemptuous refusal to testify and before a court for violation of a federal statute making such refusal a crime) were "improbable." 166 U.S., at 672, 17 S.Ct., at 681.

Both the Government, Brief for United States 15-17, and Justice BLACKMUN contend, post, at ____, that the legal obligation in Dixon's case may serve "interests . . . fundamentally different" from the substantive criminal law, because it derives in part from the determination of a court rather than a determination of the legislature. That distinction seems questionable, since the court's power to establish conditions of release, and to punish their violation, was conferred by statute; the legislature was the ultimate source of both the criminal and the contempt prohibition. More importantly, however, the distinction is of no moment for purposes of the Double Jeopardy Clause, the text of which looks to whether the offenses are the same, not the interests that the offenses violate. And this Court stated long ago that criminal contempt, at least in its nonsummary form, "is a crime in every fundamental respect." Bloom, supra, 391 U.S., at 201, 88 S.Ct., at 1482; accord, e.g., Steamship Co., 20 Wall., at 392. Because Dixon's drug offense did not include any element not contained in his previous contempt offense, his subsequent prosecution violates the Double Jeopardy Clause.

The foregoing analysis obviously applies as well to Count I of the indictment against Foster, charging assault in violation of § 22-504, based on the same event that was the subject of his prior contempt conviction for violating the provision of the CPO forbidding him to commit simple assault under § 22-504.3 The subsequen prosecution for assault fails the Blockburger test, and is barred.4

The remaining four counts in Foster, assault with intent to kill (Count V; § 22-501) and threats to injure or kidnap (Counts II-IV; § 22-2307), are not barred under Blockburger. As to Count V: Foster's conduct on May 21, 1988 was found to violate the Family Division's order that he not "molest, assault, or in any manner threaten or physically abuse" his wife. At the contempt hearing, the court stated that Ana Foster's attorney, who prosecuted the contempt, would have to prove first, knowledge of a CPO, and second, a willful violation of one of its conditions, here simple assault as defined by the criminal code.5 See, e.g., 598 A.2d, at 727-728; In re Thompson, 454 A.2d 1324, 1326 (D.C.1982); accord, Parker v. United States, 373 A.2d 906, 907 (D.C.1982) (per curiam). On the basis of the same episode, Foster was then indicted for violation of § 22-501, which proscribes assault with intent to kill. Under governing law, that offense requires proof of specific intent to kill; simple assault does not.6 See Logan v. United States, 483 A.2d 664, 672-673 (D.C.1984). Similarly, the contempt offense required proof of knowledge of the CPO, which assault with intent to kill does not. Applying the Blockburger elements test, the result is clear: These crimes were different offenses and the subsequent prosecution did not violate the Double Jeopardy Clause.7

Counts II, III, and IV of Foster's indictment are likewise not barred. These charged Foster under § 22-2307 (forbidding anyone to "threate[n] . . . to kidnap any person or to injure the person of another or physically damage the property of any person") for his alleged threats on three separate dates. Foster's contempt prosecution included charges that, on the same dates, he violated the CPO provision ordering that he not "in any manner threaten" Ana Foster. Conviction of the contempt required willful violation of the CPO—which conviction under § 22-2307 did not; and conviction under § 22-2307 required that the threat be a threat to kidnap, to inflict bodily injury, or to damage property which conviction of the contempt (for violating the CPO provision that Foster not "in any manner threaten") did not.8 Each offense therefore contained a separate element, and the Blockburger test for double jeopardy was not met.

Having found that at least some of the counts at issue here are not barred by the Blockburger test, we must consider whether they are barred by the new, additional double jeopardy test we announced three Terms ago in Grady v. Corbin.9 They undoubtedly are, since Grady prohibits "a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution [here, assault as an element of assault with intent to kill, or threatening as an element of threatening bodily injury], the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted [here, the assault and the threatening, which conduct constituted the offense of violating the CPO]." 495 U.S., at 510, 110 S.Ct., at 2087.

We have concluded, however, that Grady must be overruled. Unlike Blockburger analysis, whose definition of what prevents two crimes from being the "same offence," U.S. Const., Amdt. 5, has deep historical roots and has been accepted in numerous precedents of this Court, Grady lacks constitutional roots. The "same-conduct" rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy. See, e.g., Gavieres v. United States, 220 U.S., at 345, 31 S.Ct., at 416 (in subsequent prosecution, "[w]hile it is true that the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other" ). We need not discuss the many proofs of these statements, which were set forth at length in the Grady dissent. See 495 U.S., at 526, 110 S.Ct., at 2096 (SCALIA, J., dissenting). We will respond, however, to the contrary contentions of today's pro-Grady dissents.

The centerpiece of Justice SOUTER's analysis is an appealing theory of a "successive prosecution" strand of the Double Jeopardy Clause that has a different meaning from its supposed "successive punishment" strand. We have often noted that the Clause serves the function of preventing both successive punishment and successive prosecution, see, e.g., North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), but there is no authority, except Grady, for the proposition that it has different meanings in the two contexts. That is perhaps because it is embarrassing to assert that the single term "same offence" (the words of the Fifth Amendment at issue here) has two different meanings—that what is the same offense is yet not the same offense. Justice SOUTER provides no authority whatsoever (and we are aware of none) for the bald assertion that "we have long held that [the Government] must sometimes bring its prosecutions for [separate] offenses together." Post, at ____. The collateral-estoppel effect attributed to the Double Jeopardy Clause, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), may bar a later prosecution for a separate offense where the Government has lost an earlier prosecution involving the same facts. But this does not establish that the Government "must . . . bring its prosecutions . . . together." It is entirely free to bring them separately, and can win convictions in both. Of course the collateral estoppel issue is not raised in this case.

Justice SOUTER relies upon four cases to establish the e istence of some minimal antecedents to Grady. Post, at ____. The fountainhead of the "same-conduct" rule, he asserts, is In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889). That is demonstrably wrong. Nielsen simply applies the common proposition, entirely in accord with Blockburger, that prosecution for a greater offense (cohabitation, defined to require proof of adultery) bars prosecution for a lesser included offense (adultery). That is clear from the Nielsen Court's framing of the question ("Being of opinion, therefore, that habeas corpus was a proper remedy for the petitioner, if the crime of adultery with which he was charged was included in the crime of unlawful cohabitation for which he was convicted and punished, that question is now to be considered," 131 U.S., at 185, 9 S.Ct., at 675 (emphasis added)), from its legal analysis, id., at 186-189, 9 S.Ct., at 675-676, and from its repeated observations that cohabitation required proof of adultery, id., at 187, 189, 9 S.Ct., at 675, 676.10

His second case comes almost a century later. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), contains no support for his position except a footnote that cites Nielsen for the proposition that "[t]he Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense." Brown, supra, at 166-167, n. 6, 97 S.Ct., at 2226, n. 6. Not only is this footnote the purest dictum, but it flatly contradicts the text of the opinion which, on the very next page, describes Nielsen as the first Supreme Court case to endorse the Blockburger rule. Brown, supra, at 168, 97 S.Ct., at 2226. Quoting that suspect dictum multiple times, see post, at ____, ____, cannot convert it into caselaw. See United States National Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. ----, ----, n. 11, 113 S.Ct. 2173, ----, n. 11, --- L.Ed.2d ---- (1993) (emphasizing "the need to distinguish an opinion's holding from its dicta"). The holding of Brown, like that of Nielsen, rests squarely upon the existence of a lesser included offense. 432 U.S., at 162, 97 S.Ct., at 2223 (setting out question presented).

The third case is Harris, which Justice SOUTER asserts was a reaffirmation of what he contends was the earlier holding in Nielsen, that the Blockburger test is "insufficien[t] for determining when a successive prosecution [is] barred," and that conduct, and not merely elements of the offense must be the object of inquiry. Post, at ____. Surely not. Harris never uses the word "conduct," and its entire discussion focuses on the elements of the two offenses. See, e.g., 433 U.S., at 682-683, n., 97 S.Ct., at 2913, n. (to prove felony murder, "it was necessary for all the ingredients of the underlying felony" to be proved). Far from validating Justice SOUTER's extra rdinarily implausible reading of Nielsen, Harris plainly rejects that reading, treating the earlier case as having focused (like Blockburger ) upon the elements of the offense. Immediately after stating that conviction for felony murder, a "greater crime," "cannot be had without conviction of the lesser crime," the Harris Court quotes Nielsen' § statement that " 'a person [who] has been tried and convicted for a crime which has various incidents included in it, . . . cannot be a second time tried for one of those incidents.' " 433 U.S., at 682-683, 97 S.Ct., at 2913, quoting from 131 U.S., at 188, 9 S.Ct., at 676. It is clear from that context that Harris regarded "incidents included" to mean "offenses included"—a reference to defined crimes rather than to conduct.

Finally, Justice SOUTER misdescribes Vitale. Despite his bold assertion to the contrary, see post, at ____, Vitale unquestionably reads Harris as merely an application of the double jeopardy bar to lesser and greater included offenses.11 Justice SOUTER instead elevates the statement in Vitale that, on certain hypothetical facts, the petitioner would have a "substantial" "claim" of double jeopardy on a Grady—type theory, see post, at ____, into a holding that the petitioner would win on that theory. Post, at ____, ____. No Justice, the Vitale dissenters included, has ever construed this passage as answering, rather than simply raising, the question on which we later granted certiorari in Grady. See 447 U.S., at 426, 100 S.Ct., at 2270 (STEVENS, J., dissenting) (in addition to finding the same-conduct claim "substantial," dissent would find it "dispositive"). See also Grady, 495 U.S., at 510, 110 S.Ct., at 2086 (Vitale "suggested" same-conduct test adopted in Grady ).

In contrast to the above-discussed dicta relied upon by Justice SOUTER, there are two pre-Grady (and post-Nielsen ) cases that are directly on point. In both Gavieres v. United States, 220 U.S., at 343, 31 S.Ct., at 422, and Burton v. United States, 202 U.S. 344, 379-381, 26 S.Ct. 688, 698-699, 50 L.Ed. 1057 (1906), the Court upheld subsequent prosecutions after concluding that the Blockburger test (and only the Blockburger test) was satisfied.12 These cases are incompatible with the belief that Nielsen had created an additional requirement beyond the "elements" standard.13 Totally ignored by Justice SOUTER are the many early American cases construing the Double Jeopardy Clause, which support only an "elements" test. See Grady, supra, 495 U.S., at 533-535, 110 S.Ct., at 2099-2101 (SCALIA, J., dissenting).14

But Grady was not only wrong in principle; it has already proved unstable in application. Less than two years after it came down, in United States v. Felix, 503 U.S. ----, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992), we were forced to recognize a large exception to it. There we concluded that a subsequent prosecution for conspiracy to manufacture, possess, and distribute methamphetamine was not barred by a previous conviction for attempt to manufacture the same substance. We offered as a ustification for avoiding a "literal" (i.e., faithful) reading of Grady "longstanding authority" to the effect that prosecution for conspiracy is not precluded by prior prosecution for the substantive offense. Felix, supra, at ---- - ----, 112 S.Ct., at 1384-1385. Of course the very existence of such a large and longstanding "exception" to the Grady rule gave cause for concern that the rule was not an accurate expression of the law. This "past practice" excuse is not available to support the ignoring of Grady in the present case, since there is no Supreme Court precedent even discussing this fairly new breed of successive prosecution (criminal contempt for violation of a court order prohibiting a crime, followed by prosecution for the crime itself).

A hypothetical based on the facts in Harris reinforces the conclusion that Grady is a continuing source of confusion and must be overruled. Suppose the State first tries the defendant for felony-murder, based on robbery, and then indicts the defendant for robbery with a firearm in the same incident. Absent Grady, our cases provide a clear answer to the double-jeopardy claim in this situation. Under Blockburger, the second prosecution is not barred—as it clearly was not barred at common law, as a famous case establishes. In King v. Vandercomb, 2 Leach. 708, 717, 168 Eng.Rep. 455, 460 (K.B.1796), the government abandoned, midtrial, prosecution of defendant for burglary by breaking and entering and stealing goods, because it turned out that no property had been removed on the date of the alleged burglary. The defendant was then prosecuted for burglary by breaking and entering with intent to steal. That second prosecution was allowed, because "these two offences are so distinct in their nature, that evidence of one of them will not support an indictment for the other." Ibid. Accord, English and American cases cited in Grady, 495 U.S., at 532-535, 110 S.Ct., at 2099-2101 (SCALIA, J., dissenting).15

Having encountered today yet another situation in which the pre-Grady understanding of the Double Jeopardy Clause allows a second trial, though the "same-conduct" test would not, we think it time to acknowledge what is now, three years after Grady, compellingly clear: the case was a mistake. We do not lightly reconsider a precedent, but, because Grady contradicted an "unbroken line of decisions," contained "less than accurate" historical analysis, and has produced "confusion,"16 we do so here. Solorio v United States, 483 U.S. 435, 439, 442, 450, 107 S.Ct. 2924, 2926, 2928, 2932, 97 L.Ed.2d 364 (1987). Although stare decisis is the "preferred course" in constitutional adjudication, "when governing decisions are unworkable or are badly reasoned, 'this Court has never felt constrained to follow precedent.' " Payne v. Tennessee, 501 U.S. ----, ----, 111 S.Ct. 2597, 2600, 115 L.Ed.2d 720 (1991) (quoting Smith v. Allwright, 321 U.S. 649, 665, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944), and collecting examples). We would mock stare decisis and only add chaos to our double jeopardy jurisprudence by pretending that Grady survives when it does not. We therefore accept the Government's invitation to overrule Grady, and Counts II, III, IV, and V of Foster's subsequent prosecution are not barred.17

Dixon's subsequent prosecution, as well as Count I of Foster's subsequent prosecution, violate the Double Jeopardy Clause.18 For the reasons set forth in Part IV, the other Counts of Foster's subsequent prosecution do not violate the Double Jeopardy Clause.19 The judgment of the District of Columbia Court of Appeals is affirmed in part and reversed in part, and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Chief Justice REHNQUIST, with whom Justice O'CONNOR and Justice THOMAS join, concurring in part and dissenting in part.

Respondent Alvin Dixon possessed cocaine with intent to distribute it. For that he was held in contempt of court for violating a condition of his bail release. He was later criminally charged for the same conduct with possession with intent to distribute cocaine. R spondent Michael Foster assaulted and threatened his estranged wife. For that he was held in contempt of court for violating a civil protection order entered in a domestic relations proceeding. He was later criminally charged for the same conduct with assault, threatening to injure another, and assault with intent to kill.

The Court today concludes that the Double Jeopardy Clause prohibits the subsequent prosecutions of Foster for assault and Dixon for possession with intent to distribute cocaine, but does not prohibit the subsequent prosecutions of Foster for threatening to injure another or for assault with intent to kill. After finding that at least some of the charges here are not prohibited by the "same-elements" test set out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Court goes on to consider whether there is a double-jeopardy bar under the "same-conduct" test set out in Grady v. Corbin, 495 U.S. 508, 510, 110 S.Ct. 2084, 2085, 109 L.Ed.2d 548 (1990), and determines that there is. However, because the same-conduct test is inconsistent with the text and history of the Double Jeopardy Clause, was a departure from our earlier precedents, and has proven difficult to apply, the Court concludes that Grady must be overruled. I do not join Part III of Justice SCALIA's opinion because I think that none of the criminal prosecutions in this case were barred under Blockburger. I must then confront the expanded version of double jeopardy embodied in Grady. For the reasons set forth in the Grady dissent, supra, at 526, 110 S.Ct., at 2096 (SCALIA, J., dissenting), and in Part IV of the Court's opinion, I, too, think that Grady must be overruled. I therefore join Parts I, II, and IV of the Court's opinion, and write separately to express my disagreement with Justice SCALIA's application of Blockburger in Part III.

In my view, Blockburger's same-elements test requires us to focus not on the terms of the particular court orders involved, but on the elements of contempt of court in the ordinary sense. Relying on Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), a three-paragraph per curiam in an unargued case, Justice SCALIA concludes otherwise today, and thus incorrectly finds in Part III-A of his opinion that the subsequent prosecutions of Dixon for drug distribution and of Foster for assault violated the Double Jeopardy Clause. In so doing, Justice SCALIA rejects the traditional view—shared by every federal court of appeals and state supreme court that addressed the issue prior to Grady—that, as a general matter, double jeopardy does not bar a subsequent prosecution based on conduct for which a defendant has been held in criminal contempt. I cannot subscribe to a reading of Harris that upsets this previously well-settled principle of law. Because the generic crime of contempt of court has different elements than the substantive criminal charges in this case, I believe that they are separate offenses under Blockburger. I would therefore limit Harris to the context in which it arose: where the crimes in question are analogous to greater and lesser included offenses. The crimes at issue here bear no such resemblance.

Justice SCALIA dismisses out-of-hand, see ante, at ____, the Government's reliance on several statements from our prior decisions. See In re Debs, 158 U.S. 564, 594, 599-600, 15 S.Ct. 900, 910, 912, 39 L.Ed. 1092 (1895); In re Chapman, 166 U.S. 661, 672, 17 S.Ct. 677, 681, 41 L.Ed. 1154 (1897); Jurney v. MacCraken, 294 U.S. 125, 151, 55 S.Ct. 375, 379, 79 L.Ed. 802 (1935). Those statements are dicta, to be sure, and thus not binding on us as stare decisis. Yet they are still significant in that they reflect the unchallenged contemporaneous view among all courts that the Double Jeopardy Clause does not prohibit separate prosecutions for contempt and a substantive offense based on the same conduct.1 This view, which dates back to the English common law, see F. Wharton, Criminal Pleading and Practice § 444, p. 300 (8th ed. 1880), has prevailed to the present day. See generally 21 Am.Jur.2d, Criminal Law § 250, p. 446 (1981). In fact, every federal court of appeals and state court of last resort to consider the issue before Grady agreed that there is no double-jeopardy bar to successive prosecutions for criminal contempt and substantive criminal offenses based on the same conduct. See, e.g., Hansen v. United States, 1 F.2d 316, 317 (CA7 1924); Orban v. United States, 18 F.2d 374, 375 (CA6 1927); State v. Sammons, 656 S.W.2d 862, 868-869 (Tenn.Crim.App.1982); Commonwealth v. Allen, 506 Pa. 500, 511-516, 486 A.2d 363, 368-371 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985); People v. Totten, 118 Ill.2d 124, 134-139, 113 Ill.Dec. 47, 51-53, 514 N.E.2d 959, 963-965 (1987).2 It is somewhat ironic, I think, that Justice SCALIA today adopts a view of double jeopardy that did not come to the fore until after Grady, a decision which he (for the Court) goes on to emphatically reject as "lack[ing] constitutional roots." Ante, at ____.

At the heart of this pre-Grady consensus lay the common belief that there was no double-jeopardy bar under Blockburger. There, we stated that two offenses are different for purposes of double jeopardy if "each provision requires proof of a fact which the other does not." 284 U.S., at 304, 52 S.Ct., at 182 (emphasis added). Applying this test to the offenses at bar, it is clear that the elements of the governing contempt provision are entirely different from the elements of the substantive crimes. Contempt of court comprises two elements: (i) a court order made known to the defendant, followed by (ii) willful violation of that order. In re Gorfkle, 444 A.2d 934, 939 (D.C.1982); In re Thompson, 454 A.2d 1324, 1326 (D.C.1982). Neither of those elements is necessarily satisfied by proof that a defendant has committed the substantive offenses of assault or drug distribution. Likewise, no element of either of those substantive offenses is necessarily satisfied by proof that a defendant has been found guilty of contempt of court.

Justice SCALIA grounds his departure from Blockburger's customary focus on the statutory elements of the crimes charged on Harris v. Oklahoma, supra, an improbable font of authority. See ante, at ____. A summary reversal, like Harris, "does not enjoy the full precedential value of a case argued on the merits." Connecticut v. Doehr, 501 U.S. ----, ----, n. 4, 111 S.Ct. 2105, 2113, n. 4, 115 L.Ed.2d 1 (1991); accord, Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974). Today's decision shows the pitfalls inherent in reading too much into a "terse per curiam." Ante, at ____. Justice SCALIA's discussion of Harris is nearly as long as Harris itself and consists largely of a quote not from Harris, but from a subsequent opinion analyzing Har is. Justice SCALIA then concludes that Harris somehow requires us to look to the facts that must be proven under the particular court orders in question (rather than under the general law of criminal contempt) in determining whether contempt and the related substantive offenses are the same for double jeopardy purposes. This interpretation of Harris is both unprecedented and mistaken.

Our double jeopardy cases applying Blockburger have focused on the statutory elements of the offenses charged, not on the facts that must be proven under the particular indictment at issue an indictment being the closest analogue to the court orders in this case. See, e.g., Grady, 495 U.S., at 528, 110 S.Ct., at 2097 (SCALIA, J., dissenting) ("Th[e] test focuses on the statutory elements of the two crimes with which a defendant has been charged, not on the proof that is offered or relied upon to secure a conviction"); Albernaz v. United States, 450 U.S. 333, 338, 101 S.Ct. 1137, 1142, 67 L.Ed.2d 275 (1981) (" 'the Court's application of the test focuses on the statutory elements of the offense' ") (quoting Iannelli v. United States, 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 1293-1294, n. 17, 43 L.Ed.2d 616 (1975)); United States v. Woodward, 469 U.S. 105, 108, 105 S.Ct. 611, 612, 83 L.Ed.2d 518 (1985) (per curiam) (looking to the statutory elements of the offense in applying Blockburger ). By focusing on the facts needed to show a violation of the specific court orders involved in this case, and not on the generic elements of the crime of contempt of court, Justice SCALIA's double-jeopardy analysis bears a striking resemblance to that found in Grady—not what one would expect in an opinion that overrules Grady.

Close inspection of the crimes at issue in Harris reveals, moreover, that our decision in that case was not a departure from Blockburger's focus on the statutory elements of the offenses charged. In Harris, we held that a conviction for felony murder based on a killing in the course of an armed robbery foreclosed a subsequent prosecution for robbery with a firearm. Though the felony-murder statute in Harris did not require proof of armed robbery, it did include as an element proof that the defendant was engaged in the commission of some felony. Harris v. State, 555 P.2d 76, 80 (Okla.Crim.App.1976). We construed this generic reference to some felony as incorporating the statutory elements of the various felonies upon which a felony-murder conviction could rest. Cf. Whalen v. United States, 445 U.S. 684, 694, 100 S.Ct. 1432, 1439, 63 L.Ed.2d 715 (1980). The criminal contempt provision involved here, by contrast, contains no such generic reference which by definition incorporates the statutory elements of assault or drug distribution.

Unless we are to accept the extraordinary view that the three-paragraph per curiam in Harris was intended to overrule sub silentio our previous decisions that looked to the statutory elements of the offenses charged in applying Blockburger, we are bound to conclude, as does Justice SCALIA, see ante, at ____, that the ratio decidendi of our Harris decision was that the two crimes there were akin to greater and lesser included offenses. The crimes at issue here, however, cannot be viewed as greater and lesser included offenses, either intuitively or logically. A crime such as possession with intent to distribute cocaine is a serious felony that cannot easily be conceived of as a lesser included offense of criminal contempt, a relatively petty offense as applied to the conduct in this case. See D.C.Code Ann. § 33-541(a)(2)(A) (Supp.1992) (the maximum sentence for possession with intent to distribute cocaine is 15 years in prison). Indeed, to say that criminal contempt is an aggravated form of that offense defies common sense. Even courts that have found a double-jeopardy bar in cases resembling this one have appreciated how counter-intuitive that notion is. E.g., United States v. Haggerty, 528 F.Supp. 1286, 1297 (Colo.1981).

But there is a more fundamental reason why the offenses in this case are not analogous to greater and lesser included offenses. A lesser included offense is defined as one that is "necessarily included" within the statutory elements of another offense. See Fed.Rule Crim.Proc. 31(c); Schmuck v. United States, 489 U.S. 705, 716-717, 109 S.Ct. 1443, 1450, 103 L.Ed.2d 734 (1989). Taking the facts of Harris as an example, a defendant who commits armed robbery necessarily has satisfied one of the statutory elements of felony murder. The same cannot be said, of course, about this case: A defendant who is guilty of possession with intent to distribute cocaine or of assault has not necessarily satisfied any statutory element of criminal contempt. Nor, for that matter, can it be said that a defendant who is held in criminal contempt has necessarily satisfied any element of those substantive crimes. In short, the offenses for which Dixon and Foster were prosecuted in this case cannot be analogized to greater and lesser included offenses; hence, they are separate and distinct for double jeopardy purposes.3

The following analogy, raised by the Government at oral argument, see Tr. of Oral Arg. 8-9, helps illustrate the absurd results that Justice SCALIA's Harris/Blockburger analysis could in theory produce. Suppose that the offense in question is failure to comply with a lawful order of a police officer, see, e.g., Ind.Code § 9-21-8-1 (Supp.1992), and that the police officer's order was, "Don't shoot that man." Under Justice SCALIA's flawed reading of Harris, the elements of the offense of failure to obey a police officer's lawful order would include, for purposes of Blockburger's same-elements test, the elements of, perhaps, murder or manslaughter, in effect converting those felonies into a lesser included offense of the crime of failure to comply with a lawful order of a police officer.

In sum, I think that the substantive criminal prosecutions in this case, which followed convictions for criminal contempt, did not violate the Double Jeopardy Clause, at least before our decision in Grady. Under Grady, "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." 495 U.S., at 510, 110 S.Ct., at 2085. As the Court points out, see ante, at ____, this case undoubtedly falls within that expansive formulation: To secure convictions on the substantive criminal charges in this case, the Government will have to pro e conduct that was the basis for the contempt convictions. Forced, then, to confront Grady, I join the Court in overruling that decision.

Justice WHITE, with whom Justice STEVENS joins, and with whom Justice SOUTER joins as to Part I, concurring in the judgment in part and dissenting in part.

I am convinced that the Double Jeopardy Clause bars prosecution for an offense if the defendant already has been held in contempt for its commission. Therefore, I agree with the Court's conclusion that both Dixon's prosecution for possession with intent to distribute cocaine and Foster's prosecution for simple assault were prohibited. In my view, however, Justice SCALIA's opinion gives short shrift to the arguments raised by the United States. I also am uncomfortable with the reasoning underlying this holding, in particular the application of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to the facts of this case, a reasoning that betrays an overly technical interpretation of the Constitution. As a result, I concur only in the judgment in Part III-A.

The mischief in Justice SCALIA's approach is far more apparent in the second portion of today's decision. Constrained by his narrow reading of the Double Jeopardy Clause, he asserts that the fate of Foster's remaining counts depends on Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), which the Court then chooses to overrule. Ante, at ----. I do not agree. Resolution of the question presented by Foster's case no more requires reliance on Grady than it points to reasons for reversing that decision. Rather, as I construe the Clause, double jeopardy principles compel equal treatment of all of Foster's counts. I dissent from the Court's holding to the contrary. Inasmuch as Grady has been dragged into this case, however, I agree with Justice BLACKMUN and Justice SOUTER that it should not be overruled. Post, at ----, ----. From this aspect of the Court's opinion as well, I dissent.

* The chief issue before us is whether the Double Jeopardy Clause applies at all to cases such as these. Justice SCALIA finds that it applies, but does so in conclusory fashion, without dealing adequately with either the Government's arguments or the practical consequences of today's decision. Both, in my view, are worthy of more.

* The position of the United States is that, for the purpose of applying the Double Jeopardy Clause, a charge of criminal contempt for engaging in conduct that is proscribed by court order and that is in turn forbidden by the criminal code is an offense separate from the statutory crime. The United States begins by pointing to prior decisions of this Court to support its view. Heavy reliance is placed on In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (1895), but, as the majority notes, see ante, at 2587, the relevant portion of the opinion is dictum—and seriously weakened dictum at that. See Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).

The Government also relies on two cases involving Congress' power to punish by contempt a witness who refuses to testify before it, In re Chapman, 166 U.S. 661, 17 S.Ct. 677, 41 L.Ed. 1154 (1897), and Jurney v. MacCracken, 294 U.S. 125, 55 S.Ct. 375, 79 L.Ed. 802 (1935). Both cases appear to lean in petitioner's direction, but neither is conclusive. First, the statements were dicta. The claim in Jurney and Chapman was that the power to punish for contempt and the power to punish for commission of the statutory offense could not coexist side by side. But in neither were both powers exercised; in neither case did the defendant face a realistic threat of twice being put in jeopardy. In fact, as the majority notes, ante, at 2587, the Court expressed doubt that consecutive prosecutions would be brought in such circumstances. See Chapman, supra, 166 U.S., at 672, 17 S.Ct., at 681.

Second, both decisions concern the p wer to deal with acts interfering directly with the performance of legislative functions, a power to which not all constitutional restraints on the exercise of judiciary authority apply. See Marshall v. Gordon, 243 U.S. 521, 547, 37 S.Ct. 448, 455, 61 L.Ed. 881 (1917). The point, spelled out in Marshall, is this: In a case such as Chapman, where the contempt proceeding need not "resor[t] to the modes of trial required by constitutional limitations . . . for substantive offenses under the criminal law," 243 U.S., at 543, 37 S.Ct., at 454, so too will it escape the prohibitions of the Double Jeopardy Clause. If, however, it is of such a character as to be subject to these constitutional restrictions, "those things which, as pointed out in In re Chapman . . ., were distinct and did not therefore the one frustrate the other—the implied legislative authority to compel the giving of testimony and the right criminally to punish for failure to do so—would become one and the same and the exercise of one would therefore be the exertion of, and the exhausting of the right to resort to, the other." Id., at 547, 37 S.Ct., at 455.

Marshall thus suggests that application of the Double Jeopardy Clause, like that of other constitutional guarantees, is a function of the type of contempt proceeding at issue. Chapman, it follows, cannot be said to control this case. Rather, whatever application Chapman (and, by implication, Jurney ) might have in the context of judicial contempt is limited to cases of in-court contempts that constitute direct obstructions of the judicial process and for which summary proceedings remain acceptable. Cf. Marshall, supra, 243 U.S., at 543, 37 S.Ct., at 454. Neither Dixon nor Foster is such a case.1

The United States' second, more powerful, argument is that contempt and the underlying substantive crime constitute two separate offenses for they involve injuries to two distinct interests, the one the interest of the court in preserving its authority, the other the public's interest in being protected from harmful conduct. This position finds support in Justice BLACKMUN's partial dissent, see post, at ----, and is bolstered by reference to numerous decisions acknowledging the importance and role of the courts' contempt power. See, e.g., Young v. United States ex rel. Vuitton et Fils, 481 U.S. 787, 800, 107 S.Ct. 2124, 2134, 95 L.Ed.2d 740 (1987); Michaelson v. United States, 266 U.S. 42, 65, 45 S.Ct. 18, 19, 69 L.Ed. 162 (1924); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 501, 55 L.Ed. 797 (1911). It cannot lightly be dismissed. Indeed, we recognized in Young, supra, that contempt "proceedings are not intended to punish conduct proscribed as harmful by the general criminal laws. Rather, they are designed to serve the limited purpose of vindicating the authority of the court. In punishing contempt, the Judiciary is sanctioning conduct that violates specific duties imposed by the court itself, arising directly from the parties' participation in judicial proceedings." Id., 481 U.S., at 800, 107 S.Ct., at 2134.

The fact that two criminal prohibitions promote different interests may be indicative of legislative intent and, to that extent, important in deciding whether cumulative punishments imposed in a single prosecution violate the Double Jeopardy Clause. See Missouri v. Hunter, 459 U.S. 359, 366-368, 103 S.Ct. 673, 678-679, 74 L.Ed.2d 535 (1983). But the cases decided today involve instances of successive prosecutions in which the interests of the defendant are of paramount concern. To subject an individual to repeated prosecutions exposes him to "embarrassment, expense and ordeal," Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), violates principles of finality, United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1022, 43 L.Ed.2d 232 (1975), and increases the risk of a mistaken conviction. That one of the punishments is designed to protect the court rather than the public is, in this regard, of scant comfort to the defendant.2

It is true that the Court has not always given primacy to the defendant's interest. In particular, the Government directs attention to the dual sovereignty doctrine under which, "[w]hen a defendant in a single act violates the 'peace and dignity' of two sovereigns by breaking the laws of each, he has committed two distinct 'offences.' " Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985) (quoting United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922)). See also United States v. Wheeler, 435 U.S. 313, 317, 98 S.Ct. 1079, 1083, 55 L.Ed.2d 303 (1978); Moore v. Illinois, 14 How. 13, 19, 14 L.Ed. 306 (1852).

But the dual sovereignty doctrine is limited, by its own terms, to cases where "the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns." Heath, 474 U.S., at 88, 106 S.Ct., at 437. "This determination," we explained, "turns on whether the two entities draw their authority to punish the offender from distinct sources of power," ibid., not on whether they are pursuing separate interests. Indeed, the Court has rejected the United States' precise argument in the past, perhaps nowhere more resolutely than in Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084 (1907). In that case, the defendant, a private in the United States army stationed in he Philippines, was tried before a general court-martial for homicide. Subsequent to Grafton's acquittal, the United States filed a criminal complaint in civil court based on the same acts. Seeking to discredit the view that the Double Jeopardy Clause would be violated by this subsequent prosecution, the government asserted that "Grafton committed two distinct offenses—one against military law and discipline, the other against the civil law which may prescribe the punishment for crimes against organized society by whomsoever those crimes are committed." Id., at 351, 27 S.Ct., at 753. To which the Court responded:

"Congress, by express constitutional provision, has the power to prescribe rules for the government and regulation of the Army, but those rules must be interpreted in connection with the prohibition against a man's being put twice in jeopardy for the same offense. . . . If, therefore, a person be tried for an offense in a tribunal deriving its jurisdiction and authority from the United States and is acquitted or convicted, he cannot again be tried for the same offense in another tribunal deriving its jurisdiction and authority from the United States. . . . [T]he same acts constituting a crime against the United States cannot, after the acquittal or conviction of the accused in a court of competent jurisdiction, be made the basis of a second trial of the accused for that crime in the same or in another court, civil or military, of the same government. Congress has chosen, in its discretion, to confer upon general courts-martial authority to try an officer or soldier for any crime, not capital, committed by him in the territory in which he is serving. When that was done the judgment of such military court was placed upon the same level as the judgments of other tribunals when the inquiry arises whether an accused was, in virtue of that judgment, put in jeopardy of life or limb." Id., at 352, 27 S.Ct., at 754.

Grafton, and the principle it embodies, are controlling. The Superior Court and the District of Columbia Court of Appeals were created by Congress, pursuant to its power under Article I of the Constitution. See Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). In addition, the specific power exercised by the courts in this case were bestowed by the Legislature. See ante, at ----. As we observed in United States v. Providence Journal Co., 485 U.S. 693, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988), "[t]he fact that the allegedly criminal conduct concerns a violation of a court order instead of common law or a statutory prohibition does not render the prosecution any less an exercise of the sovereign power of the United States." Id., at 700, 108 S.Ct., at 1507. It is past dispute, in other words, that "the two tribunals that tried the accused exert all their powers under and by the authority of the same government that of the United States," Grafton, supra, 206 U.S., at 354-355, 27 S.Ct., at 755, and, therefore, that the dual sovereignty doctrine poses no problem. Compare Heath, supra, 474 U.S., at 88, 106 S.Ct., at 437.3

Both the Government and amici submit that application of the Double Jeopardy Clause in this context carries grave practical consequences. See also post, at ---- (BLACKMUN, J., concurring in judgment in part, and dissenting in part). It would, it is argued, cripple the power to enforce court orders or, alternatively, allow individuals to escape serious punishment for statutory criminal offenses. The argument, an offshoot of the principle of necessity familiar to the law of contempt, see, e.g., United States v. Wilson, 421 U.S. 309, 315-318, 95 S.Ct. 1802, 1806-1807, 44 L.Ed.2d 186 (1975), is that, just as we have relaxed certain procedural requirements in contempt proceedings where time is of the essence and an immediate remedy is needed to "prevent a breakdown of the proceedings," id., at 319, 95 S.Ct., at 1808, so too should we exclude double jeopardy protections from this setting lest we do damage to the courts' authority. In other words, "[t]he ability to punish disobedience to judicial orders [being] regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority," Young, 481 U.S., at 796, 107 S.Ct., at 2132, its exercise should not be inhibited by fear that it might immunize defendants from subsequent criminal prosecution.

Adherence to double jeopardy principles in this context, however, will not seriously deter the courts from taking appropriate steps to ensure that their authority is not flouted. Courts remain free to hold transgressors in contempt and punish them as they see fit. The government counters that this possibility will prove to be either illusory—if the prosecuting authority declines to initiate proceedings out of fear that they could jeopardize more substantial punishment for the underlying crime—or too costly —if the prosecuting authority, the risk notwithstanding, chooses to go forward. But it is not fanciful to imagine that judges and prosecutors will select a third option, which is to ensure, where necessary or advisable, that the contempt and the substantive charge be tried at the same time, in which case the double jeopardy issue "would be limited to ensuring that the total punishment did not exceed that authorized by the legislature." United States v. Halper, 490 U.S. 435, 450, 109 S.Ct. 1892, 1903, 104 L.Ed.2d 487 (1989). Indeed, the Court recently exercised its supervisory power to suggest that a federal court "ordinarily should first request the appropriate prosecuting authority to prosecute contempt actions, and should appoint a private prosecutor only if that request is denied." Young, 481 U.S., at 801, 107 S.Ct., at 2134. Just as "[i]n practice, courts can reasonably expect that the public prosecutor will accept the responsibility for prosecution," ibid., so too can the public prosecutor reasonably anticipate that the court will agree to some delay if needed to bring the two actions together.

Against this backdrop, the appeal of the principle of necessity loses much of its force. Ultimately, the urgency of punishing such contempt violations is no less, but by the same token no more, than that of punishing violations of criminal laws of general application—in which case, we simply do not question the defendant's right to the "protections worked out carefully over the years and deemed fundamental to our system of justice," Bloom v. Illinois, 391 U.S., at 208, 88 S.Ct., at 1485-1486, including the protection of the Double Jeopardy Clause. "Perhaps to some extent we sacrifice efficiency, expedition, and economy, but the choice . . . has been made, and retained, in the Constitution. We see no sound reason in logic or policy not to apply it in the area of criminal contempt." Id., at 209, 88 S.Ct., at 1486.4

Dixon aptly illustrates these points. In that case the motion requesting modification of the conditions of Dixon's release was filed by the government, the same entity responsible for prosecution of the drug offense. Indeed, in so doing it relied explicitly on the defendant's indictment on the cocaine charge. 598 A.2d 724, 728 (D.C.1991). Logically, any problem of coordination or of advance notice of the impending prosecution for the substantive offense was at most minimal. Nor, aside from the legitimate desire to punish all offenders swiftly, does there appear to have been any real need to hold Dixon in contempt immediately, without waiting for the second trial. By way of comparison, at the time of his drug offense Dixon was awaiting trial for second-degree murder, a charge that had been brought some 11 months earlier.

Besides, in the situation where a person has violated a condition of release, there generally exist a number of alternatives under which the defendant's right against being put twice in jeopardy for the same offense could be safeguarded, the while ensuring that disregard of the court's authority not go unsanctioned. To the extent that they are exercised with due regard for the Constitution, such options might include modification of release conditions or revocation of bail and detention.5 As respondents acknowledge, these solutions would raise no double jeopardy problem. See Tr. of Oral Arg. 30.

More difficult to deal with are the circumstances surrounding Foster's defiance of the court order. Realization of the scope of domestic violence—according to the American Medical Association (AMA), "the single largest cause of injury to women," AMA, Five Issues in American Health 5 (1991)—has come with difficulty, and it has come late.

There no doubt are time delays in the operation of the criminal justice system that are frustrating; they even can be perilous when an individual is left exposed to a defendant's potential violence. That is true in the domestic context; it is true elsewhere as well. Resort to more expedient methods therefore is appealing, and in many cases permissible. Under today's decision, for instance, police officers retain the power to arrest for violation of a civil protection order. Where the offense so warrants, judges can haul the assailant before the court, charge him with criminal contempt, and hold him without bail. See United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); United States v. Edwards, 430 A.2d 1321 (D.C.1981). Also, cooperation between the government and parties bringing contempt proceedings can be achieved. The various actors might not have thought such cooperation necessary in the past; after today's decision, I suspect they will.6

Victims, understandably, would prefer to have access to a proceeding in which swift and expeditious punishment cou d be inflicted for that offense without prejudice to a subsequent full-blown criminal trial. The justification for such a system, however, has nothing to do with preventing disruption of a court's proceedings or even with vindicating its authority. While, under the principle of necessity, contempt proceedings have been exempted from some constitutional constraints, this was done strictly "to secure judicial authority from obstruction in the performance of its duties to the end that means appropriate for the preservation and enforcement of the Constitution may be secured." Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656 (1919). No such end being invoked here, the principle of necessity cannot be summoned for the sole purpose of letting contempt proceedings achieve what, under our Constitution, other criminal trials cannot.

If, as the Court agrees, the Double Jeopardy Clause cannot be ignored in this context, my view is that the subsequent prosecutions in both Dixon and Foster were impermissible as to all counts. I reach this conclusion because the offenses at issue in the contempt proceedings were either identical to, or lesser included offenses of, those charged in the subsequent prosecutions. Justice SCALIA's contrary conclusion as to some of Foster's counts, which he reaches by exclusive focus on the formal elements of the relevant crimes, is divorced from the purposes of the constitutional provision he purports to apply. Moreover, the results to which this approach would lead are indefensible.

* The contempt orders in Foster and Dixon referred in one case to the District's laws regarding assaults and threats, and, in the other, to the criminal code in its entirety. The prohibitions imposed by the court orders, in other words, duplicated those already in place by virtue of the criminal statutes. Aside from differences in the sanctions inflicted, the distinction between being punished for violation of the criminal laws and being punished for violation of the court orders, therefore, is simply this: Whereas in the former case "the entire population" is subject to prosecution, in the latter such authority extends only to "those particular persons whose legal obligations result from their earlier participation in proceedings before the court." Young, 481 U.S., at 800, n. 10, 107 S.Ct., at 2134, n. 10. But the offenses that are to be sanctioned in either proceeding must be similar, since the contempt orders incorporated, in full or in part, the criminal code.7

Thus, in this case, the offense for which Dixon was held in contempt was possession with intent to distribute drugs. Since he previously had been indicted for precisely the same offense, the double jeopardy bar should apply. In Foster's contempt proceeding, he was acquitted with respect to threats allegedly made on November 12, 1987, and March 26 and May 17, 1988. He was found in contempt of court for having committed the following offenses: Assaulting his wife on November 6, 1987, and May 21, 1988, and threatening her on September 17, 1987. 598 A.2d, at 727; App. 42. The subsequent indictment charged Foster with simple assault on November 6, 1987 (Count I); threatening to injure another on or about November 12, 1987, and March 26 and May 17, 1988 (Counts II, III, and IV); and assault with intent to kill on or about May 21, 1988 (Count V). All of the offenses for which Foster was either convicted or acquitted in the contempt proceeding were similar to, or lesser included offenses of, those charged in the subsequent indictment. Because "the Fifth Amendment forbids successive prosecution . . . for a greater and lesser included offense," Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977); see also Grafton, 206 U.S., at 349-351, 27 S.Ct., at 753, the second set of trials should be barred in their entirety.

Professing strict adherence to Blockburger's so-called "same elements" test, see Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), Justice SCALIA opts for a more circuitous approach. The elements of the crime of contempt, he reasons, in this instance are (1) the existence and knowledge of a court, or CPO; and (2) commission of the underlying substantive offense. See ante, at ____. Where the criminal conduct that forms the basis of the contempt order is identical to that charged in the subsequent trial, Justice SCALIA concludes, Blockburger forbids retrial. All elements of Foster's simple assault offense being included in his previous contempt offense, prosecution on that ground is precluded. Ante, at ____. The same is true of Dixon's drug offense. Ibid. I agree with this conclusion, though would reach it rather differently: Because in a successive prosecution case the risk is that a person will have to defend himself more than once against the same charge, I would have put to the side the CPO (which, as it were, triggered the court's authority to punish the defendant for acts already punishable under the criminal laws) and compared the substantive offenses of which respondents stood accused in both prosecutions.8

The significance of our disaccord is far more manifest where an element is added to the second prosecution. Under Justice SCALIA's view, the double jeopardy barrier is then removed because each offense demands proof of an element the other does not: Foster's conviction for contempt requires proof of the existence and knowledge of a CPO, which conviction for assault with intent to kill does not; his conviction for assault with intent to kill requires proof of an intent to kill, which the contempt conviction did not. Ante, at ____. Finally, though he was acquitted in the contempt proceedings with respect to the alleged November 12, March 26, and May 17 threats, his conviction under the threat charge in the subsequent trial required the additional proof that the threat be to kidnap, to inflict bodily injury, or to damage property. Ante, at ____. As to these counts, and absent any collateral estoppel problem, see ante, at ____, n. 8, Justice SCALIA finds that the Constitution does not prohibit retrial.

The distinction drawn by Justice SCALIA is predicated on a reading of the Double Jeopardy Clause that is abstracted from the purposes the constitutional provision is designed to promote. To focus on the statutory elements of a crime makes sense where cumulative punishment is at stake, for there the aim simply is to uncover legislative intent. The Blockburger inquiry, accordingly, serves as a means to determine this intent, as our cases have recognized. See Missouri v. Hunter, 459 U.S., at 368, 103 S.Ct., at 679. But, as Justice SOUTER shows, adherence to legislative will has very little to do with the important interests advanced by double jeopardy safeguards against successive prosecutions. Post, at ----. The central purpose of the Double Jeopardy Clause being to protect against vexatious multiple prosecutions, see Hunter, supra, at 365, 103 S.Ct., at 677; United States v. Wilson, 420 U.S., at 343, 95 S.Ct., at 1021, these interests go well beyond the prevention of unauthorized punishment. The same-elements test is an inadequate safeguard, for it leaves the constitutional guarantee at the mercy of a legislature's decision to modify statutory definitions. Significantly, therefore, this Court has applied an inflexible version of the same-elements test only once, in 1911, in a successive prosecution case, see Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911), and has since noted that "[t]he Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense." Brown, 432 U.S., at 166-167, n. 6, 97 S.Ct., at 2226, n. 6. Rather, "[e]ven if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first." Ibid.

Take the example of Count V in Foster: For all intents and purposes, the offense for which he was convicted in the contempt proceeding was his assault against his wife. The majority, its eyes fixed on the rigid elements-test, would have his fate turn on whether his subsequent prosecution charges "simple assault" or "assault with intent to kill." Yet, because the crime of "simple assault" is included within the crime of "assault with intent to kill," the reasons that bar retrial under the first hypothesis are equally present under the second: These include principles of finality, see United States v. Wilson, 420 U.S., supra, at 343, 95 S.Ct., at 1021; protecting Foster from "embarrassment" and "expense," Green v. United States, 355 U.S., at 187, 78 S.Ct., at 223; and preventing the government from gradually fine-tuning its strategy, thereby minimizing exposure to a mistaken convic ion. Id., at 188, 78 S.Ct., at 224. See also Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2217, 72 L.Ed.2d 652 (1982); Arizona v. Washington, 434 U.S. 497, 503-504, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978); supra, at ----.

Analysis of the threat charges (Counts II-IV) makes the point more clearly still. In the contempt proceeding, it will be recalled, Foster was acquitted of the—arguably lesser-included offense of threatening "in any manner." As we have stated,

"the law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal might have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that 'even though innocent he may be found guilty.' " United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978) (citation omitted).

To allow the government to proceed on the threat counts would present precisely the risk of erroneous conviction the Clause seeks to avoid. That the prosecution had to establish the existence of the CPO in the first trial, in short, does not in any way modify the prejudice potentially caused to a defendant by consecutive trials.

To respond, as the majority appears to do, that concerns relating to the defendant's interests against repeat trials are "unjustified" because prosecutors "have little to gain and much to lose" from bringing successive prosecutions and because "the Government must be deterred from abusive, repeated prosecutions of a single offender for similar offenses by the sheer press of other demands upon prosecutorial and judicial resources," ante, at ____, n. 15, is to get things exactly backwards. The majority's prophesies might be correct, and double jeopardy might be a problem that will simply take care of itself. Not so, however, according to the Constitution, whose firm prohibition against double jeopardy cannot be satisfied by wishful thinking.

Further consequences—at once illogical and harmful —flow from Justice SCALIA's approach.9 I turn for illustration once more to Foster's assault case. In his second prosecution, the government brought charges of assault with intent to kill. In the District of Columbia, Superior Court Criminal Rule 31(c)—which faithfully mirrors its federal counterpart, Federal Rule of Criminal Procedure 31(c)—provides that a "defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense." This provision has been construed to require the jury to determine guilt of all lesser included offenses. See Simmons v. United States, 554 A.2d 1167 (D.C.1989). Specifically, "[a] defendant is entitled to a lesser-included offense instruction when (1) all elements of the lesser offense are included within the offense charged, and (2) there is a sufficient evidentiary basis for the lesser charge." Rease v. United States, 403 A.2d 322, 328 (D.C.1979) (citations omitted).