Double Jeopardy
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Double Jeopardy

The History, The Law

George C. Thomas III

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Double Jeopardy

The History, The Law

George C. Thomas III

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About This Book

In the first book-length book on the subject in over a quarter century, George C. Thomas III advances an integrated theory of double jeopardy law, a theory anchored in historical, doctrinal, and philosophical method.

Despite popular belief, double jeopardy has never been a limitation on the legislature. It functions instead to keep prosecutors and judges from imposing more than one criminal judgment for the same offense. Determining when seemingly different offenses constitute the "same offense" is no easy task. Nor is it always easy to determine when a defendant has suffered more than one criminal judgment. Tracing American double jeopardy doctrine back to twelfth century English law, the book develops a jurisprudential account of double jeopardy that recognizes the central role of the legislature in creating criminal law blameworthiness.

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Information

Publisher
NYU Press
Year
1998
ISBN
9780814783467

1

The Road Back to Blackstone

An Overview of the Argument
Blackstone was almost certainly the source of the Double Jeopardy Clause language. The Supreme Court noted that a bar against double jeopardy “was carried into the jurisprudence of this Country through the medium of Blackstone.”1 Blackstone stated a centuries-old common law view of double jeopardy, which is (I argue) the most defensible conception today, more than two hundred years later. But the growing procedural and substantive complexity of modern law has made the application of the common law principles devilishly difficult. Blackstone did not have to deal with federal sentencing guidelines, for example, and the number of criminal offenses today is a thousand times larger than when English double jeopardy law was in its infancy. “At the end of the thirteenth century, apart from treason and three offenses which were fast falling into the category of misdemeanors, there were but six felonies.”2 The difficulties of discerning when two offenses are the “same offense” are markedly reduced when one has a universe of six or seven offenses, rather than one of 7,000.3
This chapter sketches the argument that the rest of the book makes in more detail. Ultimately, the argument requires understanding Black-stone’s conception of double jeopardy and how that conception applies to the radically different modern criminal procedure. First, I introduce three models of double jeopardy protection as a way of organizing the argument.

Three Double Jeopardy Models

The Court has explicitly rejected the first of the three models, though commentators sometimes write wistfully as if the model were still viable. This model, attractive to those who fear legislative excess, finds in the Double Jeopardy Clause a substantive limitation on how the legislature can define crimes and fix punishments.

Model 1: A Substantive Double Jeopardy Clause

A double jeopardy protection can be primarily about punishment, limiting the number of punishments that the substantive law can authorize for particular wrongdoing. Indeed, as we see in chapter 2, Thomas Becket’s attempt to limit the king’s power to punish clerics already convicted in ecclesiastical courts was early evidence of a double jeopardy principle. But, as we also see, that limitation on the lawgiver’s power to define crimes and fix penalties was decisively rejected in the thirteenth century. The reasons used to reject it eight hundred years ago are still valid today.
In modern times, it is the legislature, not the monarch, that creates criminal blameworthiness. Model 1 thus views double jeopardy as a substantive limitation on the legislature. The legislature is free to create crimes and authorize punishments, under this model, as long as the result is not impermissible multiple punishment. Model 1 assumes that the Double Jeopardy Clause has a substantive component that tells us when punishments are impermissibly multiple. But what would that component be? One might argue that any time a defendant is punished “twice” for the same offense, he has suffered impermissible multiple punishment. Even that apparently obvious principle turns out to be controversial and complex. Legislatures often authorize both a fine and a jail term for a single criminal violation. If the judge imposes both penalties, has the defendant been punished in violation of the Double Jeopardy Clause?
Perhaps a Model 1 proponent would argue that a fine and jail term do violate double jeopardy. If so, what about a fine and community service? Or a fine and probation? Or probation and community service? It seems unlikely that the Double Jeopardy Clause would forbid the judge to impose probation and community service, yet there is no principled basis to distinguish those sanctions from a fine and a jail term. All four sanctions require the defendant to do something as a consequence of having been found guilty of a criminal violation.4 Suffering a judicially imposed consequence for a criminal violation, even community service, must be a punishment. If not, why would the legislature authorize it as a sanction for a criminal violation? Thus, the Model 1 proponent is forced to argue that the imposition of probation and community service is multiple punishment.
But our intuitions resist the argument that probation and community service for the same criminal violation is impermissible multiple punishment. The reason, I believe, has to do with long-standing allocation of institutional responsibility to design and impose appropriate penalties. We expect the legislature to define crimes and fix penalties. We expect judges to impose from a range of penalties those that are most appropriate. In accomplishing the task of fashioning the proper punishment, flexibility is a virtue. In some cases, community service is sufficient punishment. In others, a prison sentence is necessary. And in cases where the public purse is also harmed, both a fine and a prison sentence are necessary to achieve a proportional punishment.
To take an example that is not strictly about judicial discretion, President Ford decided that Richard Nixon had “suffered enough” by having to resign the presidency, a “sentence” that would be unavailable for the rest of us. Whether or not one agrees with President Ford’s pardon of Nixon, the point is that flexibility permits the sentencer leeway to construct a sentence that takes into account unusual or even unique characteristics of the offender. Any principle that says the legislature can authorize, and the judge can impose, only a single kind of penalty seems too arbitrary, too rigid.
Our intuitions here are manifested in sentencing theory. Different theoretical models of sentencing have been offered over the centuries, ranging from a pure retributive model to a pure rehabilitation model, including various combinations of retribution, deterrence, incapacitation, and rehabilitation. Retribution is probably the oldest sentencing theory; it can be found in the Old Testament (an eye for an eye) as well as in the Code of Hammurabi. Kant was perhaps its most passionate and best advocate. To show his dedication to retribution as the sole justification for punishment, Kant offered a hypothetical in which an island community was going to leave the island forever. The community has to decide what to do with convicted murderers in prison awaiting execution. One choice is to leave the murderers behind on the island. They can harm none other than themselves (Kant assumes they cannot escape). But he insists that justice requires that “the last murderer lying in the prison ought to be executed before the resolution was carried out. This ought to be done in order that every one may realize the desert of his deeds, and that blood guiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of justice.”5
Deterrence is probably a more modern, and certainly a more utilitarian, justification for punishment. The theory is to set punishments at a level that will deter the individual offender from repeating his offense, and the general population from committing it for the first time. These goals are called, respectively, special and general deterrence. Incapacitation is related to deterrence, except that it focuses only on the dangerousness of the individual offender. The more likely he is to recividate, the longer the sentence should be.
Rehabilitation is a theory currently out of favor, in part because it permits the most flexibility on the part of the judge, and the public has become dissatisfied with excessive judicial discretion in sentencing. Determining what sanction will have the best chance of rehabilitating an offender is a wholly individualized determination. Probation might be the best rehabilitative tonic for a first-time offender, but a repeat offender might need a fine and a prison term.
With a single possible exception, all of these theories and combinations of theories require at least some flexibility in sentencing. Retribution might seem to offer a “one size fits all” approach—for each crime there might be a Kantian punishment that is uniquely appropriate—but this would work only if the substantive criminal law were narrowly tailored to reflect Kantian harms. Modern United States criminal law has broad offense definitions and expansive notion of accomplice liability, thus requiring individualized sentences even under the retributive model. For example, a youth who drives the getaway car for what he thinks is a burglary may be guilty of murder if his partners kill a janitor in the building. But it is difficult to argue that he is as blameworthy as the killers. Indeed, the Supreme Court has focused on lesser blameworthiness to derive limitations on accomplice liability from the Eighth Amendment’s ban on cruel and unusual punishment.6
Incapacitation, special deterrence, and rehabilitation all focus on the individual offender and thus, by definition, require flexibility in sentencing. The only theory that does not require attention to individualized sentencing is the general deterrence goal of discouraging those who have yet to commit crime. Presumably, the question of optimal general deterrence is unrelated to the characteristics of the particular offender; after all, general deterrence failed by definition in the case before the court. Thus, a single sentence for murder is presumably justified by general deterrence goals, without regard to the failure of that sentence to satisfy retributive, incapacitative, or special deterrence goals in the case of our young getaway driver. The general deterrence message is “Don’t drive a getaway car for a burglary because you might wind up guilty of murder.” Thus, a system based wholly on general deterrent goals would likely need only a single sentence for each crime.
But general deterrence is an unsatisfying justification if used in isolation. General deterrence requires penalties to be arranged according to the temptation to commit crimes. Because few of us are tempted to commit murder, and many of us are tempted to take recreational drugs or cheat on our income taxes, a sentencing system built solely on general deterrence would have higher penalties for drug possession and income tax evasion than for murder. We reject this system because our ideal of justice is driven in large part by retribution and, to a lesser extent, by incapacitation and special deterrence. Murder will always carry the greatest penalty, despite its relative rarity, because it is the most harmful to society—so harmful that Kant wanted to kill the convicted murderers rather than strand them on the island.
It is quite likely, therefore, that general deterrence adherents would accept at least some flexibility in sentencing to take account of individual distinctions in blameworthiness and the need for incapacitation. As long as retribution, incapacitation, and special deterrence play a role in our instincts about sentencing, legislatures should be encouraged to provide alternative forms of sentences (fines, jail, probation, community service), and judges should be encouraged (with or without formal sentencing guidelines) to concoct the appropriate sentence by using one, some, or all of the alternatives. To find a countervailing, absolute ban on this kind of sentencing flexibility is to read far too much into the Double Jeopardy Clause.
Indeed, the Supreme Court has never held that imposition of a legislatively authorized fine and prison term for the same offense violates the multiple punishment component of the Double Jeopardy Clause. But if this clear case of double punishment is not impermissible “multiple punishment,” why would two consecutive prison terms be “multiple punishment” if they are clearly authorized by the legislature? The answer, the Court provided in Missouri v. Hunter,7 is that no combination of clearly authorized penalties constitutes multiple punishment under the Double Jeopardy Clause. Thus, Missouri could constitutionally authorize a second conviction and consecutive sentence for using a weapon to commit robbery (one conviction and sentence for robbery; the second conviction and consecutive sentence for using a weapon to commit the robbery).
Hunter, decided over only two dissents, is a clear refutation of a Model 1 substantive limitation on the power of the legislature to decree more than one conviction for the “same offense” in a single trial. If the legislature speaks clearly enough, two convictions in one trial (or three or four, for that matter) are not “multiple punishment” for purposes of the Double Jeopardy Clause. Oddly enough, after rejecting Model 1, the Court seems poised to accept a variant of this model based on little more than a jurisprudential reflex. The Justices who support a more expansive view of double jeopardy seem willing to find a limitation on the legislature in an amalgam of loose language in earlier cases, and the conservatives are attracted by what appears to be a literal reading of the constitutional text. But, as I show later, this Model 2 is flawed for the very same reason the Court rejected Model 1.
My view is that Hunter is the only defensible framework for a double jeopardy/multiple punishment framework. I argue in the next two sections for an expansion of the Hunter analysis to include successive prosecution theory and the civil/criminal distinction.

Model 2: A Partly Substantive Double Jeopardy Clause

If the Double Jeopardy Clause does not forbid the legislature the power to decree the number of penalties, or convictions, that can attend the same offense in a single trial, the next question is whether it limits the power of the legislature in the context of successive prosecutions. At first glance (and, I argue, on deeper analysis as well), it would seem that the power to “define crimes and fix penalties” is the power to have as many substantive criminal offenses as the legislature wants for particular conduct. After all, by what standard could a court judge whether the legislature had divided conduct too finely, created too many offenses out of one “indivisible” course of conduct? What would an “indivisible” course of conduct look like? As then-Justice Rehnquist noted in rejecting this notion: “To the extent that this 
 thesis assumes that any particular criminal transaction is made up of a determinable number of constitutional atoms that the legislature cannot further subdivide into separate offenses, ‘it demands more of the Double Jeopardy Clause than it is capable of supplying.’”8
Once we know how many substantive offenses have been committed by the defendant’s conduct—and this question Hunter answers by deferring to legislative intent—any other limit on the prosecutor must be a limit on obtaining authorized penalties in more than one trial. One such limit is the joinder law of the jurisdiction. Joinder law, which is nonconstitutional in nature, is a procedural mechanism that sometimes requires trying in one trial offenses arising out of the same conduct. Model 2 essentially holds that the Double Jeopardy Clause overrides the legislature’s ability to define different substantive offenses. Stated differently, Model 2 finds in the Double Jeopardy Clause an additional, constitutionally based form of mandatory joinder.
There are two sets of arguments against the proposition that double jeopardy sometimes bars separate trials for legislatively separate offenses. Ironically, the arguments are held by Justices on opposite ends of the judicial philosophy spectrum (“liberal” to “conservative”). On the “liberal” end of the spectrum, we hear about the policy of not harassing criminal defendants by repeated prosecutions for the same conduct. This, to be sure, is the argument underlying nonconstitutional joinder provisions that sometimes require trying together offenses that arise from the same conduct. But the double jeopardy issue is whether that sound policy is embedded in the Double Jeopardy Clause. As chapter 2 shows, this policy argument is u...

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