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Double Jeopardy as a Limit on Punishment

Posted By Carissa Byrne Hessick On January 21, 2013 @ 1:01 am In Constitutional Law, Criminal Law & Procedure, Legal Philosophy & Critical Theory | No Comments

The Double Jeopardy Clause provides that no “person be subject for the same offense to be twice put in jeopardy of life or limb.”1 As the Supreme Court has recognized, the Clause protects not only against multiple trials, but also against “multiple punishments for the same offense.” Even so, courts have not enforced that prohibition. Instead, they have developed doctrines that strip virtually all substance from that right.

One way that courts have removed the substance of the prohibition on multiple punishments is by failing to enforce the prohibition against legislatures. Courts have held that, if the legislature authorizes two punishments for one crime, then a court may impose both punishments on a defendant convicted of that crime. Thus, the limit on multiple punishments is not a substantive constitutional limitation; it is merely procedural. So long as the legislature follows the procedure of authorizing multiple punishments for a single offense, courts may impose those multiple punishments.

A second way that courts have diluted the prohibition on multiple punishments is by refusing to apply it at sentencing. This is most apparent in the context of recidivism enhancements. Every state and the federal government have enacted statutes that punish recidivists more severely than first-time offenders. Enhancements imposed under these recidivism statutes amount to multiple punishments. The additional punishment is attributable to a defendant’s previous conviction; without the earlier conviction, the defendant would not face the additional punishment. Nevertheless, courts have repeatedly held that these sentencing enhancements do not violate the Double Jeopardy Clause.

This Editorial (and the Article upon which this Editorial is based) argues that these doctrines violate the Double Jeopardy Clause, for there is significant historical

support for the conclusion that the Double Jeopardy Clause protects not only against multiple prosecutions, but also against multiple punishments. To be sure, as with many historical inquiries, the evidence is not conclusive. Still, the legislative history of the Clause, combined with the longstanding tradition against multiple punishments in both England and the colonies, suggests that the Clause was intended to protect against multiple punishments.

More compelling than the historical record is that protecting individuals against multiple punishments is logically a crucial component of the right against double jeopardy. Even if the Double Jeopardy Clause were intended to protect individuals only from multiple prosecutions, that protection would be incomplete and inadequate if it did not also protect against multiple punishments.

To understand why the Double Jeopardy Clause should robustly protect against not only multiple prosecutions but also multiple punishments, one must begin with the fact that, both at common law and in modern times, the concept of double jeopardy protects both those with prior acquittals and those with prior convictions.

Although some have claimed that the primary purpose of the Double Jeopardy Clause is to protect the previously acquitted, nothing in the Clause supports that conclusion. The text of the Clause makes no distinction between prior convictions or acquittals. It prohibits “be[ing] twice put in jeopardy of life or limb”—that is, being twice subject to the possibility of punishment—irrespective of the outcome in the prior case. Nor does history suggest that the right is limited to prior acquittals. What is more, if the Double Jeopardy Clause were intended only to protect those who have been acquitted of an offense, then the Clause would seem to be largely duplicative of the Sixth Amendment jury trial right. The Sixth Amendment already protects against retrial after acquittal, and ordinary principles of statutory and constitutional construction counsel against treating the Double Jeopardy Clause as surplusage.

Those who have been previously convicted do not have the same double-jeopardy interests in avoiding multiple trials as those who have been acquitted. The principal interest of those who have been previously acquitted is to avoid multiple trials for the same offense. They need not worry about being subjected to multiple punishments because they have not yet suffered a punishment. The threat of multiple trials undermines the finality of jury verdicts; exposes the defendant to government harassment; leaves the defendant with the anxiety of potential prosecutions; and impairs the defendant’s ability to defend herself, not only because of mounting litigation costs, but also because each trial gives the government an opportunity to preview and adjust to the defense strategy. Further, multiple trials increase the probability that an innocent person will be convicted because the government may follow each acquittal with another prosecution until it finds a jury willing to convict.

But, for the previously convicted, the interests are different. The primary evils associated with multiple prosecutions—in particular, the dangers associated with the government previewing defense strategy and potential infringement on jury verdicts—simply are not present when a defendant has already been convicted. For defendants who have already been convicted, the government has already developed a successful strategy against the defense, and a second conviction would be consistent with the jury’s prior verdict.

Instead of seeking to avoid potential government advantage at a second trial, the primary interest of a defendant who has already been convicted is to avoid the consequences of a second trial—i.e., a second punishment. For this defendant, the Double Jeopardy Clause serves to ensure that the defendant does not face another punishment for an offense after he has already served the punishment for that offense duly meted out through the judicial process.

What all this suggests is that preventing multiple punishments is the animating principle of the Double Jeopardy Clause, and the limitation on multiple trials is simply a means to enforce the prohibition on that restriction on multiple punishments. For this reason, courts ought to expand current double jeopardy doctrine to encompass a robust right against multiple punishments.

* * *

Of course, even one who agrees that the Double Jeopardy Clause bars multiple punishments for one offense might not concede that the Double Jeopardy Clause ought to prohibit sentencing enhancements based on prior convictions. Indeed, courts themselves have often reached this conclusion, asserting that recidivists are not being punished for their previous crimes. Instead, these courts explain recidivism enhancements on the ground that the recidivist’s previous offense renders his present offense “aggravated” and deserving of more punishment. This argument obscures substance behind semantics. Sentencing enhancements are a form of punishment, and an individual who receives a recidivism enhancement based on a prior conviction suffers two punishments for the same offense. The first is the punishment following the first conviction, and the second is the enhancement authorized by the recidivism statute that is triggered by that original conviction. The statutory offense that formed the basis of the first conviction is the basis for both punishments, and thus the defendant is receiving multiple punishments for the same offense. The mere fact that a consideration has been labeled an aggravating sentencing factor in no way means that the defendant is not being punished because of that consideration. After all, those defendants without a prior conviction do not face the potential additional punishment.

Another justification courts have given is that a sentencing enhancement is not an “offense”; it is simply an aggravating factor to consider in the imposition of sentence for the offense of conviction. True enough. But the relevant question is not whether the recidivism enhancement is an offense; instead, it is whether the enhancement constitutes a second punishment for an offense for which the defendant was already punished. It certainly meets that definition because the enhancement depends on the earlier conviction.

A third reason courts have given to justify sentencing enhancements for prior convictions is that the Double Jeopardy Clause does not apply at sentencing. This conclusion is but one example of a more general phenomenon of courts refusing to enforce constitutional rights in order to achieve individualized sentencing.2 But

allowing the goal of individualized sentencing to trump constitutional rights turns constitutional law on its head. It is a basic principle of constitutional law that the government cannot ignore the Constitution simply because it impedes the government from accomplishing some goal. More specific to the double jeopardy context, the refusal to recognize double jeopardy’s application at sentencing allows the government to circumvent not only the restrictions on multiple punishments, but also the restriction on multiple prosecutions. For example, because double jeopardy is held not to apply at sentencing, courts have permitted prosecutors to seek increased sentences based on criminal conduct for which a defendant has been acquitted.

The refusal to limit multiple punishments through the Double Jeopardy Clause has also resulted in a substantial doctrinal conflict with the Court’s decisions regarding the Eighth Amendment’s limit on cruel and unusual punishment. As with the Double Jeopardy Clause, the Court has consistently rejected Eighth Amendment challenges to enhanced sentences for recidivists. But the Court has done so on grounds that directly conflict with the reasoning underlying its rejection of Double Jeopardy challenges to those same enhancements.

Ewing v. California provides an example. 3 Ewing was convicted of stealing three golf clubs. Although theft ordinarily carries a penalty of no more than three years, Ewing was sentenced to life imprisonment because the theft was his third serious felony. Ewing argued that the sentence of life imprisonment was a disproportionately harsh punishment for stealing golf clubs, and thus violated the Eighth Amendment. The Court rejected this argument, commenting that Ewing had “incorrectly frame[d] the issue.” The Court explained that the proportionality of Ewing’s sentence depended not only on the seriousness of his “triggering offense” of stealing the golf clubs but also on his previous convictions.

By considering not only the crime underlying the present conviction but also the previous convictions, the Court’s Eighth Amendment analysis is inconsistent with its statements in the double jeopardy context that recidivist penalties do not punish offenders for their previous crimes. That the Court has resorted to these inconsistencies reveals that its rejection of challenges to multiple punishments lacks foundation. What is more, these inconsistent approaches to recidivism statutes result in virtually no constitutional limit on the punishments that may be assessed against recidivists. They establish a head-I-win-tails-you-lose situation for the government. Instead of protecting an individual’s right against multiple or excessive punishments, the conflicting doctrines maximize the ability of the government to punish individuals.

* * *

Our conclusion that the Double Jeopardy Clause ought to place meaningful limits on recidivism enhancement does not necessarily mean that all recidivism enhancements must be prohibited. Prior convictions are widely believed to provide relevant information about a defendant’s future behavior. As a group, those individuals who have previously committed a crime are more likely to commit future crimes than those who have not.

For this reason, courts and others have insisted that recidivism enhancements are necessary to deter future lawbreaking. They have also argued that repeated lawbreaking requires incapacitation or rehabilitation through longer sentences to protect public safety.

But these arguments go too far. The fact that prior offenders may generally be more likely to commit future offenses than those who have not previously committed an offense does not automatically justify empowering the government to impose higher punishments on all recidivists. Even if increased sentences would result in reduced crime, that reduction must be weighed against the cost of sacrificing the right against multiple punishments.

Still, interest in deterring future crimes may on some occasions warrant recidivism enhancements. It is generally accepted that where the costs of upholding a constitutional right are intolerably high, the government’s interest may trump the constitutional right. Courts have developed a number of doctrinal tests under which rights yield when the social costs of enforcing those rights are too high compared to the interests protected by them. For example, under the strict scrutiny doctrine, courts will allow the government to infringe on even fundamental rights if necessary to protect a compelling public interest. Thus, recidivism enhancements should perhaps be allowed if the government could establish a sufficient need for them.

There is reason to doubt that many current recidivism enhancements meet this threshold. Although promoting public safety through the reduction of crime is undoubtedly a compelling public interest, it is less clear whether recidivism enhancements are narrowly tailored to achieve the goal of crime reduction. Prior offenders are more likely to commit future offenses as a class. But not all prior offenders present the same threat. Logic alone tells us that those with prior convictions of shoplifting may be more likely to offend again than those who engaged in mortgage fraud. Current laws often fail to draw these distinctions and instead call for increased punishments for all or most prior crimes. Thus, strictly limiting the government’s ability to pursue its interests is essential to avoid letting the government interest swallow the right.

Of course, the absence of reliable data about the interaction of penalty increases, recidivism, and crime prevention may be attributable to the fact that current doctrine does not call for this sort of balancing in making double jeopardy determinations. Courts rarely consider the government’s interest in assessing whether the Double Jeopardy Clause permits a prosecution or punishment. Instead, courts ask simply whether the prosecution (or, in limited circumstances, the punishment) is for the same offense as an earlier one. This lack of doctrinal nuance may explain the courts’ refusal to protect meaningfully against multiple punishments. The fear that prohibiting multiple punishments in some circumstances would unduly hamper the government has led courts to abandon the limitation on multiple punishments in all circumstances.

* * *

One of the core principles underlying the Double Jeopardy Clause is to protect against multiple punishments. Recent interpretations of the Clause have forgotten that value, resulting in a doctrine unmoored from its foundations. Restoring the principle against multiple punishments to a central role would result in a more coherent and faithful doctrine of double jeopardy.


Carissa Byrne Hessick is a Professor of Law, Sandra Day O’Connor College of Law, Arizona State University.

F. Andrew Hessick is a Professor of Law and Associate Dean for Research & Faculty Development, Sandra Day O’Connor College of Law, Arizona State University.

This essay is based on Carissa Byrne Hessick & F. Andrew Hessick, Double Jeopardy As A Limit on Punishment, 97 CORNELL L. REV. 45 (2011).

Copyright © 2012 Cornell Law Review.

  1. U.S. CONST. amend. V.
  2. As we have explained elsewhere, “judges routinely make sentencing decisions based on considerations that could not constitutionally be considered in the decision whether to punish an individual in the first place.” Carissa Byrne Hessick & F. Andrew Hessick, Recognizing Constitutional Rights at Sentencing, 99 CAL L. REV. 47, 49 (2011).
  3. Ewing v. California, 538 U.S. 11 (2003).

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