Double Jeopardy (Update 1)

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Over the past few years, the Supreme Court has decided a substantial number of cases involving double jeopardy issues. For the most part, these decisions continued a trend noted in the Encyclopedia of giving additional flexibility to the doctrine, although several notable exceptions expanded the protection provided by the clause. The most significant developments concerned two topics: multiple crimes arising from the same conduct and sentencing. The most disturbing development occurred under the dual-sovereignty doctrine.

In the area of multiple offenses, the Supreme Court continues to adhere to the position that the legilslative branch has virtually unlimited power to define as seperate crimes and to punish cumulatively individual steps within a criminal trasaction and the completed transaction as well. The well-worn test set out in Blockburger v. United States (1932) determined whether the offenses are seperate by asking if each "requires proof of a fact which the other does not," This has been constructed as a rule of statutory construction, which is not controlling within a single prosecution if the legislative intent is clear and that multiple punishments are intended.

However, where individual crimes arising from the same events are adjudicated separately, a sharply divided Court expanded the protection of the double jeopardy clause beyond the confines of the Blockberger test. In Grady v. Corbin (1990), the Court concluded that a prosecution for vehicular manslaughter was barred where the defendant had been convicted previously of driving while intoxicated based on the same automobile accident. The Court reasoned that successive prosecutions present dangers that require protection under the double jeopardy doctrine even in circumstances where the two crimes do not constitute the "same offense" under the Blockberger test. It formulated a new and certainly more complicated test: The guarantee against double jeopardy is violated by subsequent criminal prosecution when the government establishes an essential element of that crime by proving conduct that constituted an offense for which the defendant has been previously prosecuted.

The decision in Grady v. Corbin unsettled the law with regard to the important concept of what constitutes the "same offense." Its immediate practical effect will be to encourage, if not require, the government to prosecute in a single case all charges arising from the same transaction because some of those that share a common element will be barred by the double jeopardy clause if they are prosecuted later. How this decision will be reconciled with the body of related doctrine—and even whether it will stand the test of time given the Court's history of dramatically changing course on double jeopardy issues—remains to be seen. Indeed, the conflicting nature of the Court's double jeopardy jurisprudence was apparent from cases decided during the same term. In Dowling v. United States (1990), the Supreme Court determined that evidence of criminal conduct was not barred by the collateral estoppel concept of double jeopardy, even though the defendant had been found not guilty in an earlier trial of that criminal conduct. Dowling and Grady v. Corbin can be reconciled because the crimes in Dowling were not part of the same transaction, but the two cases demonstrate that there is no broad consensus within the Court on basic principles, particularly the application of this "same transaction" concept.

In the area of sentencing, the Court decided a number of significant cases. Although the clause does not apply to civil penalties, the Court concluded that in a very rare case a penalty traditionally considered remedial can be so overwhelmingly disproportionate to the damage caused that it must be considered punishment with a purpose of deterrence or retribution. In this circumstance, presented by a series of penalties in United States v. Halper (1989), the double jeopardy clause bars imposition of civil penalties subsequent to criminal conviction and punishment.

The Court has determined that the double jeopardy clause does not in general prohibit the government, pursuant to statutory authorization, from appealing a sentence or prohibit a court from increasing that sentence after review. In contrast, the double jeopardy clause does impose some limits on resentencing in capital punishment litigation. In Bullington v. Missouri (1981), the Court concluded that the clause prohibits imposing a death sentence on resentencing where a jury initially imposed a life sentence. The trial-type proceedings involved in such a determination render a decision not to impose a death penalty the equivalent of an acquittal at trial. The double jeopardy clause does not, however, bar the trial judge, under statutory authorization, from overriding a jury recommendation of life imprisonment and imposing a death sentence.

The Court concluded that the double jeopardy doctrine permits either resentencing or judicial modification of a sentence in two other areas. First, it held in Morris v. Mathews (1986) that where the defendant is convicted of both a jeopardy-barred greater offense and a lesser offense that is not so barred the error may be corrected without resentencing by simply substituting the lesser-included conviction, unless the defendant can demonstrate a reasonable probability that he or she would not have been convicted of the lesser offense absent the joint trial with the jeopardy-barred offense. Second, the decision in Jones v. Thomas (1989) held that as long as the resentencing remains within legislatively intended limits an appellate court could modify an initially invalid consecutive sentence by vacating the shorter sentence and crediting the defendant for the time served even after the defendant had fully satisfied the shorter sentence. In reaching this conclusion, the Court dismissed longstanding precedent apparently prohibiting resentencing after the defendant had satisfied one of two alternative sentences.

In a disturbing, although not doctrinally surprising, opinion, the Court extended to prosecutions by separate states its very broad holding that double jeopardy is inapplicable where the same conduct is prosecuted by state and federal governments. Reasoning that this dual-sovereignty doctrine rests on the critical determination that two entities draw authority to punish from separate sources of power, the Court concluded in heath v. alabama (1985) that the doctrine operates between states as it does between state and federal governments.

On first examination, applying the doctrine to two states appears to present no major issues. However, an examination of the facts of the case and the underlying policies presents a different picture. Heath involved a kidnapping that began in Alabama and ended in a murder across the nearby state line in Georgia. Pursuant to a plea bargain in Georgia, the defendant avoided the death penalty in exchange for a life sentence. He was then prosecuted in Alabama for the same murder and sentenced to death. The Supreme Court's decision resulted in affirming that death sentence.

At a practical level, the operation of the dual-sovereignty doctrine permitted two states to enjoy all the advantages of multiple prosecutions that the double jeopardy clause was intended to prevent. Admittedly, however, these advantages can accrue to the prosecution whenever the dual-sovereignty doctrine is applied. The major difference in this case is that the two sovereigns were protecting the same policy interest—punishing the taking of human life. When the state and federal government are involved, there has historically been not only a separate source of political power, but also a separate interest protected.

Heath demonstrates that the Supreme Court is steadfast in its commitment to a monolithic and absolute dual-sovereignty doctrine in the context of double jeopardy. Given the expansion of federal jurisdiction to almost every area of state criminal law, this position is understandable, if not defensible. Currently, the different policy interest protected by the federal prosecution is often imaginary, and the decision in Heath makes recognition of this fact unnecessary.

Robert P. Mosteller


La Fave, Wayne R. and Israel, Jerold H. 1985 Criminal Procedure. St. Paul, Minn.: West Publishing Co.

Thomas, George C. 1988 An Elegant Theory of Double Jeopardy. University of Illinois Law Review 1988:827–885.

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Double Jeopardy (Update 1)

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