No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Double Jeopardy Clause protects against imposition of multiple punishment for the same offense. 1 The application of the principle leads, however, to a number of complexities. In a simple case, it was held that where a court inadvertently imposed both a fine and imprisonment for a crime for which the law authorized one or the other but not both, it could not, after the fine had been paid and the defendant had entered his short term of confinement, recall the defendant and change its judgment by sentencing him to imprisonment only. 2 But the Court has held that the imposition of a sentence does not from the moment of imposition have the finality that a judgment of acquittal has. Thus, it has long been recognized that in the same term of court and before the defendant has begun serving the sentence the court may recall him and increase his sentence. 3 Moreover, a defendant who is retried after he is successful in overturning his first conviction is not protected by the Double Jeopardy Clause against receiving a greater sentence upon his second conviction. 4 An exception exists with respect to capital punishment, the Court having held that government may not again seek the death penalty on retrial when on the first trial the jury had declined to impose a death sentence. 5
Applying and modifying these principles, the Court narrowly approved the constitutionality of a statutory provision for sentencing of
dangerous special offenders, which authorized prosecution appeals of sentences and permitted the appellate court to affirm, reduce, or increase the sentence. 6 The Court held that the provision did not offend the Double Jeopardy Clause. Sentences had never carried the finality that attached to acquittal, and its precedents indicated to the Court that imposition of a sentence less than the maximum was in no sense an
acquittal of the higher sentence. Appeal resulted in no further trial or other proceedings to which a defendant might be subjected, only the imposition of a new sentence. An increase in a sentence would not constitute multiple punishment, the Court continued, inasmuch as it would be within the allowable sentence and the defendant could have no legitimate expectation of finality in the sentence as first given because the statutory scheme alerted him to the possibility of increase. Similarly upheld as within the allowable range of punishment contemplated by the legislature was a remedy for invalid multiple punishments under consecutive sentences: a shorter felony conviction was vacated, and time served was credited to the life sentence imposed for felony-murder. Even though the first sentence had been commuted and hence fully satisfied at the time the trial court revised the second sentence, the resulting punishment was
no greater than the legislature intended, hence there was no double jeopardy violation. 7
The Court is also quite deferential to legislative classification of recidivism sentencing enhancement factors as relating only to sentencing and as not constituting elements of an
offense that must be proved beyond a reasonable doubt. Ordinarily, therefore, sentence enhancements cannot be construed as additional punishment for the previous offense, and the Double Jeopardy Clause is not implicated.
Sentencing enhancements do not punish a defendant for crimes for which he was not convicted, but rather increase his sentence because of the manner in which he committed his crime of conviction. 8
"For the Same Offence"
Sometimes as difficult as determining when a defendant has been placed in jeopardy is determining whether he was placed in jeopardy for the same offense. As noted previously, the same conduct may violate the laws of two different sovereigns, and a defendant may be proceeded against by both because each may have different interests to serve. 9 The same conduct may transgress two or more different statutes, because laws reach lesser and greater parts of one item of conduct, or may violate the same statute more than once, as when one robs several people in a group at the same time.
Legislative Discretion as to Multiple Sentences
It frequently happens that one activity of a criminal nature will violate one or more laws or that one or more violations may be charged. 10 Although the question is not totally free of doubt, it appears that the Double Jeopardy Clause does not limit the legislative power to split a single transaction into separate crimes so as to give the prosecution a choice of charges that may be tried in one proceeding, thereby making multiple punishments possible for essentially one transaction. 11
Where . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger, a court’s task of statutory construction is at an end and . . . the trial court or jury may impose cumulative punishment under such statutes in a single trial. 12
The clause does, however, create a rule of construction – a presumption against the judiciary imposing multiple punishments for the same transaction unless Congress has
spoken in language that is clear and definite 13 to pronounce its intent that multiple punishments indeed be imposed. The commonly used test in determining whether Congress would have wanted to punish as separate offenses conduct occurring in the same transaction, absent otherwise clearly expressed intent, is the
same evidence rule. The rule, announced in Blockburger v. United States, 14
is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Thus, in Gore v. United States, 15 the Court held that defendant’s one act of selling narcotics had violated three distinct criminal statutes, each of which required proof of a fact not required by the others; prosecuting him on all three counts in the same proceeding was therefore permissible. 16 So too, the same evidence rule does not upset the
established doctrine that, for double jeopardy purposes,
a conspiracy to commit a crime is a separate offense from the crime itself, 17 or the related principle that Congress may prescribe that predicate offenses and
continuing criminal enterprise are separate offenses. 18 On the other hand, in Whalen v. United States, 19 the Court determined that a defendant could not be separately punished for rape and for killing the same victim in the perpetration of the rape, because it is not the case that each statute requires proof of a fact that the other does not, and no indication existed in the statutes and the legislative history that Congress wanted the separate offenses punished. 20 In this as in other areas, a guilty plea ordinarily precludes collateral attack. 21
Successive Prosecutions for the Same Offense
Successive prosecutions raise fundamental double jeopardy concerns extending beyond those raised by enhanced and multiple punishments. It is more burdensome for a defendant to face charges in separate proceedings, and if those proceedings are strung out over a lengthy period the defendant is forced to live in a continuing state of uncertainty. At the same time, multiple prosecutions allow the state to hone its trial strategies through successive attempts at conviction. 22 In Brown v. Ohio, 23 the Court, apparently for the first time, applied the same evidence test to bar successive prosecutions in state court for different statutory offenses involving the same conduct. The defendant had been convicted of
joyriding, defined as operating a motor vehicle without the owner’s consent, and was then prosecuted and convicted of stealing the same automobile. Because the state courts had conceded that joyriding was a lesser included offense of auto theft, the Court observed that each offense required the same proof and for double jeopardy purposes met the Blockburger test. The second conviction was overturned. 24 Application of the same principles resulted in a holding that a prior conviction of failing to reduce speed to avoid an accident did not preclude a second trial for involuntary manslaughter, because failing to reduce speed was not a necessary element of the statutory offense of manslaughter, unless the prosecution in the second trial had to prove failing to reduce speed to establish this particular offense. 25 In 1990, the Court modified the Brown approach, stating that the appropriate focus is on same conduct rather than same evidence. 26 That interpretation held sway only three years, however, before being repudiated as
wrong in principle [and] unstable in application. 27 The Brown Court had noted some limitations applicable to its holding, 28 and more have emerged subsequently. Principles appropriate in the
classically simple lesser-included-offense and related situations are not readily transposable to
multilayered conduct governed by the law of conspiracy and continuing criminal enterprise, and it remains the law that
a substantive crime and a conspiracy to commit that crime are not the ‘same offense’ for double jeopardy purposes. 29 For double jeopardy purposes, a defendant is
punished . . . only for the offense of which [he] is convicted; a later prosecution or later punishment is not barred simply because the underlying criminal activity has been considered at sentencing for a different offense. 30 Similarly, recidivism-based sentence enhancement does not constitute multiple punishment for the
same prior offense, but instead is a stiffened penalty for the later crime. 31
The Same Transaction Problem
The Supreme Court has also interpreted the Double Jeopardy Clause to incorporate the doctrine of “collateral estoppel” or “issue preclusion” 32 –that is, the general legal principle that prohibits the relitigation of an issue of fact or law raised and necessarily resolved by a prior judgment. 33 The Court first recognized the Double Jeopardy Clause’s issue-preclusion component in Ashe v. Swenson. 34 Ashe involved a robbery of six poker players. 35 The defendant in Ashe, after being acquitted of robbing one of the players because of insufficient evidence, was tried and convicted of robbing another player. 36 The Court held that because the sole issue in dispute in the first trial was whether Ashe had been one of the robbers, “[o]nce a jury had determined . . . that there was at least a reasonable doubt” as to that issue, the Constitution protected a “man who has been acquitted from having to ‘run the gantlet’ a second time.” 37 In so holding, Ashe explained that issue preclusion in criminal cases must be applied with “realism and rationality” with a close examination of the underlying record to determine what was “actually decided” by the prior jury’s verdict of acquittal. 38 If a criminal judgment does not depend on a jury’s determination of a particular factual issue, relitigation of that issue can occur. 39
Then in United States v. Powell, the Court rejected the argument that issue preclusion barred the acceptance of an “inconsistent” jury verdict that included an acquittal on a drug charge but guilty verdicts of using a telephone to “caus[e] and faciliat[e]” that same drug offense. 40 Reaffirming a precedent from more than a half a century before, 41 the Powell Court held that the “Government’s inability to invoke review, the general reluctance to inquire into the workings of the jury, and the possible exercise of lenity” by the jury cautioned against allowing defendants to challenge inconsistent verdicts on issue preclusion grounds. 42
Several decades later, the Court extended the logic of Powell in Bravo-Fernandez v. United States. 43 In that case, a jury had returned inconsistent verdicts of conviction and acquittal with respect to two criminal defendants, but their convictions were later vacated for legal errors unrelated to the inconsistency. 44 The Court, recognizing Powell’s conclusion that inconsistent verdicts do not indicate whether the acquittal was the result of “mistake, compromise, or lenity,” 45 held that re-prosecution on the counts on which a conviction was initially obtained could occur. According to the Court, because of the “irrationality” of the earlier inconsistent verdicts, 46 the criminal defendants failed to demonstrate that the first jury had “actually decided” that they did not commit the crime underlying the second trial. 47 As a result, while the government was prohibited from re-prosecuting the defendants in Bravo-Fernandez on the charges that had earlier resulted in an acquittal, 48 issue preclusion could not be used to prevent a second trial on the charges that had previously resulted in guilty verdicts.