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March 8, 2011

"Double Jeopardy as a Limit on Punishment"

The title of this post is the title of this great-looking new piece by Professor Carissa Byrne Hessick and F. Andrew Hessick III.  Here is the abstract:

One of the most common reasons for a sentencing enhancement is that the defendant has a prior conviction. Courts have rejected claims that these recidivism enhancements violate the prohibition against Double Jeopardy.  They have explained that the Double Jeopardy Clause does not prohibit the legislature from authorizing multiple punishments for one offense and that, in any event, the Double Jeopardy Clause does not apply at sentencing.

This Article challenges these conclusions.  It demonstrates that the central motivation for the Double Jeopardy Clause is the prohibition multiple punishments and that allowing recidivism enhancements undermines this principle.  The Article further explains that the reasons courts give in rejecting Double Jeopardy challenges to recidivism enhancements directly conflict with the reasons they give in rejecting Eighth Amendment challenges to those same enhancements.  The consequence is an inconsistent body of law that maximizes the government’s ability to punish at the expense of individual rights.  The Article offers several reasons why the Double Jeopardy Clause is the appropriate constitutional provision to limit recidivism enhancements.

March 8, 2011 at 06:52 PM | Permalink


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I hope they will also look at "Dual Sovereignty" which really violates double jeopardy. Federal prosecutors can go into state prisons and re-prosecute a prisoner on the same charge, and when they appeal they claim "dual sovereignty." One case in point is a young man who pled guilty to a firearms charge and received 5 years in state prison. When his time was almost up, the feds came and got him and used his guilty plea of evidence that he had committed the crime, and he is now serving a 25 year sentence in federal prison.

Posted by: msyoung227 | Mar 8, 2011 7:55:26 PM

I meant to say they used his guilty plea as evidence (not "of" evidence)

Posted by: msyoung227 | Mar 8, 2011 7:56:37 PM

Defense-oriented folks, do you really want to force the government to punish first offenders the same as recidivists?

Be very careful what you ask for.

Posted by: Kent Scheidegger | Mar 8, 2011 7:59:31 PM

Kent --

And, equally important, does any sensible person think that people who repeatedly commit crime SHOULD be punished the same as first offenders?

The idea that the two should get the same punishment is so preposterous that you'd only find it in academia.

Posted by: Bill Otis | Mar 8, 2011 9:49:21 PM

Will Kent or Bill or even Jesus Christ (SC) reply to this post:

Why do we have Judges? Why do we pay Judges?

If they are to defend the American People from the platitudes of the US government, or protect the American People and ensure reasonable punishments and deterence, (the USSC is so contemptible, we got ours so go get yours), it is obvious that we are on a downward spiral? Most politicians do not care about anything resembling truth (thanks to US government control of public education, most voters only care about their Facebook or Twitter accounts to believe who they really are).

Most government employees don't care about precision, accuracy or specificity of what they are doing. They want to retire with parasitic wealth.

The public colleges and universities will be the next to go.

Posted by: albeed | Mar 8, 2011 10:57:48 PM

Hi Kent, no, I don't want first offenders to be punished to the same extent as recidivists. I don't have a problem with the prior conviction exception in the Apprendi Rule.

What I have a problem with is using a prior conviction as an element of a substantive offense, which is then used to trigger a sentencing enhancement based on recidivism.

I'll give you one of many examples in NC. Def breaks into a coin machine once and its a misdemeanor. If he breaks into a coin machine again , I don't have a problem with his punishment for the misdemeanor increasing. But NC law provides that a second offense of breaking into a coin machine is a felony, which can then be used to trigger habitual felon enhancement. Under that scenario the second offense is being used as an element of crime, rather than a sentencing factor, which I believe violates the double jeopardy clause.

This seems like such a simple concept to me, I don't understand how it can be refuted. But then ,, I started practicing law before the legislature started micromanaging the criminal sentencing system, primarily through the vehicle of recidivism.

Your defense oriented friend, bruce

Posted by: bruce cunningham | Mar 8, 2011 11:49:47 PM

sorry, I mean that the first misdemeanor offense is used as an element of the second greater felony offense. I said it wrong in my first post.

Posted by: bruce cunningham | Mar 8, 2011 11:52:56 PM


And we still disagree on the basic issue. Only if the offender were being punished for the exact same conduct does it violate the double jeopardy clause. But the fact that a new offense was committed reopens jeopardy and so long as there is one new criminal fact (the new break-in, rather than the prior conviction) the legislature is free to categorize the crime as it will. Just like even otherwise actually first amendment protected activity can be an element of an offense so long as there is an accompanying criminal fact.

You would be right if the legislature tried to combine two protected categories (the prior conviction and first amendment protected activity for instance), but once there is an element that opens jeopardy the protection of the prohibition is completely gone.

This does ignore the entire issue of dual sovereignty in the US, something I think the courts have gotten completely wrong.

Posted by: Soronel Haetir | Mar 9, 2011 12:56:46 AM

The authors are Ivy indoctrinated dumbasses (dumbasses is not an eptithet but a lawyer term of art for the victim of criminal cult indoctrination, starting with an IQ of 300, and ending up believing in supernatural doctrines). They are beneath the need to reply. Nothing a lawyer dumbass says has the slightest validity, nor does the lawyer dumbass ever believe in external validation of their preposterous, supernatural beliefs.

However, someone requested a reply.

Briefly, the article assumes the retribution purpose of punishment to be correct, so enhanced sentences for recidivism are seen as paying twice for the prior crime. Retribution (just desserts) is from the Bible, reflects the culture of the awful, ultraviolent Iraqis that wrote that book, 3000 years ago, and it imposes a religious belief on our secular nation. The lawyer dumbass will prohibit an inoffensive minute prayer before a football game, but allow deeply religious tenets to result in the death penalties of our people. To gauge how offensive to the First Amendment retribution is, imagine the imposition of Sharia law on the American people at the point of a gun. Why is the Catechism, from which the lawyer plagiarized the criminal law, any less offensive?

The retribution assumption of the article is prohibited by the Establishment Clause. It fails the prior Lemon Test and the newer reasonable person test against the imposition of religion by government. I suggest these lawyers go to Iraq where their arguments would be more welcome.

That being said, the real aim of the article is to loose vicious, career violent criminals. These are already nearly immunized by the lawyer, with only 1 in 100 serious crimes resulting in prison time. Why? The criminal generates massive government make work sinecures. The victim generates nothing and may rot.

Incapacitation is the sole, effective, mature, non-religious aim of the criminal law. It is the central purpose of government to provide physical security, and only incapacitation achieves that aim. Rehab does not work better than aging. General deterrence punishes the defendant for the future speculative crimes of another. The sentencing guidelines preceded a 40% across the board drop in crime, one of the greatest lawyer achievement in history. Now the lawyer is backing off, because the drop in crime causes lawyer unemployment.

Posted by: Supremacy Claus | Mar 9, 2011 7:14:53 AM

One may also look at sentencing as a remedy for dangerousness, evidenced by repeat offenses. Each sentence has to stand in for 100's of crimes by the defendant that were not prosecuted. Sentencing enhancements should be viewed as proper dosing of the remedy. So a 10 lb child gets a dose of antibiotics for an infection, a 400 lb middle aged man gets another dose for the same infection. It is equal treatment to give both a "proper dose," which is quite different from giving the "same dose." Giving the dose of a child to a heavy adult would be unequal treatment. A closer analogy to sentencing enhancement would be a higher dose of chemotherapy for the recurrence of a cancer than for the first discovery of a cancer. Sentencing may benefit the defendant, removing him for longer from an environment where the death by murder rate can approach 50%. It is a benefit to the defendant if it keeps him safe from murder, drug overdose, or accidental death caused by impulsivity.

Posted by: Supremacy Claus | Mar 9, 2011 7:23:05 AM

Soronel, you are ignoring Brown v Ohio's basic premise that if the proof of one offense automatically proves another offense, they are for Fifth amendment purposes the same offenses. Also, see Blockburger. The proof of felonious breaking into a coin machine automatically proves the misdemeanor of breaking into a coin machine the first time because the first conviction is an element of the second offense.


Posted by: bruce cunningham | Mar 9, 2011 9:20:03 AM


Brown pretty much proves the point of requiring a new criminal fact. The prior conviction does not prove the new offense. As I read it, Brown requires that the exact same facts, not overlapping facts for the prohibition to come into play. It is also a requirement (fleshed out elsewhere I believe), that charges stemming from a single criminal act be tried together. However one coin-op machine break-in, followed sometime later by conviction, followed sometime later by another break-in and conviction is not a single course of criminal conduct. Note I would agree with you if the state were to try such a course before conviction, I do see a requirement that the conviction (though not completion of sentence) sit between the two acts.

And reading Blockburger I don't see how you think it's helpful since it was premised on repeated violations of a single statute (plus an overlapping convictions stemming from a single courtse of conduct. And that is basically the same thing as the additional criminal fact test I've brought up.

I guess the proof would be have you had any success with this argument in front of judges deciding your cases? If so I might well have to reevaluate, but if you've only managed to convince academics and other defense attorneys it seems more like the arguments of tax protesters, if only you could get the magic words just right.
A prior

Posted by: Soronel Haetir | Mar 9, 2011 9:47:27 AM

It brings the name Tim Hennis to mind. I couldn't be more satisfied that a clearly guilty killer (and cause celebre) is back on death row where he belongs but these cases clearly violate the spirit of 'double jeopardy'. It's legal, but it's the worst kind of legal: 'technically legal'.

Posted by: MikeinCT | Mar 9, 2011 10:32:22 AM

Many thanks to Professor Berman for providing a link to our new paper. I am hopeful that his post will result in more people reading the paper. Some of the comments in this thread, however, suggest that several people commenting on the project have not read the paper. Notably, the paper does not argue that recidivists should never receive higher penalties than first time offenders.

Carissa Byrne Hessick
Sandra Day O'Connor College of Law
Arizona State University

Posted by: CBHessick | Mar 9, 2011 12:48:02 PM

Bruce, I agree with your specific example. The same prior should not be used as both a degree-booster element and a sentence enhancement.

Carissa, true enough, most commenters on blogs react to the post, and in this case the post's quote of your abstract, rather than reading the whole paper. If your actual position is narrower than the abstract seems to say, that is a good thing.

Posted by: Kent Scheidegger | Mar 9, 2011 1:01:21 PM

I think the authors mix apples and oranges. Sentences punish people for committing criminal offenses. Once committed, an offense does not change. The double jeopardy clause forbids punishing a person twice for the same offense. At the same time we also control the risk that a person may commit another criminal offense. Risk does change over time and has nothing to do with punishment. For example risk usually decreases with age. These a parallel courses of action.

Posted by: Tom McGee | Mar 9, 2011 1:19:14 PM


I am not a lawyer, but I am the founder and President of LEAD4Justice and a member of FAMM and CAUS (Citizens Against Unjust Sentencing.) Your article was insightful, however, I agree that recidivism does not justify violating the rule of double jeopardy.

My question relates to the first post in this thread, which I posted, regarding "Dual Sovereignity" - which Sornel Haetir correctly stated that "the courts got it wrong." I don't think you can address double jeopardy issues without addressing this horrendous practice. Are you going to address this in future articles - please?

Posted by: msyoung227 | Mar 9, 2011 1:31:30 PM

Prof. Hessick,

You can likely ignore the back and forth between Bruce cunningham and myself. It's a discussion we've had before. And I don't think either of us are going to be convinced by anything short of directly on point court rulings (and even then we might well think the court got it wrong).

Posted by: Soronel Haetir | Mar 9, 2011 1:32:08 PM

Kent, the use of recidivism to increase the severity of crime, as opposed to the severity of sentence, is rampant in North Carolina, and the rest of the country as I best can tell. I believe such use of prior convictions is a blatant violation of the Fifth Amendment.

Soronel, Brown does not talk about two offenses with the same facts. It talks about greater and lesser offenses being the same offense because by definition the proof of the greater proves the lesser. Just like blockburger, which says two offenses are separate offenses if each requires the proof of a fact that the other does not.


Posted by: bruce cunningham | Mar 9, 2011 3:24:26 PM


And your described situation in NC requires just that, a new fact. A fact that (pretty much by definition) could not have been present at the time of the original conviction as the second theft from a coin-op machine had not occurred yet. As I see it, and as I said above, once jeopardy reattaches (by virtue of having been charged with the new offense, in this case breaking into a coin-op machine some time after the earlier conviction) the protection against double jeopardy is simply gone. I might be wrong but I believe the weight of practice and authority bears out my position on this.

Similar to the cases where people have been convicted of murder after serving a long sentence for assault when the victim dies years later. And it's not like that particular practice is some relic of the past.

Posted by: Soronel Haetir | Mar 9, 2011 3:47:11 PM

Kent, I just reread your comment and you have misinterpreted my point. I'm not talking about the same conviction being used as an element and as a sentencing factor. I'm talking about a double jeopardy violation when a prior conviction is used solely as an element.

Soronel, concerning your reference to Diaz, I would encourage you to reread Diaz and look at it in the light of the very small category of cases dealing with self-imposed first jeopardy, not state imposed double jeopardy.


Posted by: bruce cunningham | Mar 9, 2011 5:11:06 PM

"What I have a problem with is using a prior conviction as an element of a substantive offense, which is then used to trigger a sentencing enhancement based on recidivism."

Okay. I thought that meant dual use, on which I would have agreed with you.

Given that under Apprendi there is little constitutional difference between degree-boosting elements and sentence enhancements, I don't see that it makes much difference.

In California, first-degree murder by someone who has been convicted of murder before is "first-degree murder with special circumstances." Would that statute be unconstitutional if California had instead created a higher degree called "capital murder" but defined by the same factors? That would be elevating form over substance.

Posted by: Kent Scheidegger | Mar 10, 2011 7:57:33 PM


I am an Advocate for those who have fallen into the corrupt system of our "legal" process. Since the early eighties, I have help protect victims from the "justice" system. The people I have helped range from sexually molested children to parolees who's "master" has over stepped their boundaries, and the law.

My goal in life is to help clean-up this unlawful system and let those that act unlawfully, under the color of law, either learn the law, or become part of the corrupt system, (behind bars) that they have subjected others to, by loss of freedoms and rights.

Posted by: Kate | Apr 19, 2011 12:44:23 PM

Hi. My name is Teresa. I am a layperson, with little/no education of the law. I am researching (double jeopardy sentencing); and that's how I landed on this site. I will get to the point. I have a loved one who was sentenced to 21 years in prison (state), for armed robbery accountability. He appealed the conviction,and also asked for SENTENCE REDUCTION. The conviction was upheld, but the sentence overturned and remanded back to trial county for reduction. As a result one year was taken off the 21. My loved one was told not to appeal,"because if he wins the second reduction appeal, he will get 15 more years added on when in trial county, based on mandatory enhancement law of a firearm discharge. At which time instead of receiving a reduction, he will have 15 years added on to the 20." I believe that to be double jeopardy. If the appellate court, again, overturns and remands for reduction, how can time be added to the defendant? If it were to play out the way his attorney said, would'nt that be ILLEGAL and UNCONSTITUTIONAL? As I stated earlier, I am digging for information for self-indulgence. Knowledge is power. Thank you for your time. Please respond.

Posted by: TERESA SMITH | Mar 25, 2013 9:17:38 PM

We are the parents to a 20 year old. She was convicted of a possession charge and originally sentenced to treatment. Because she is 9 mos pregnant only one facility was willing to accept her. Her judge declined this facility and re-sentenced her to prison. Is this a violation of her constitutional right of double jeopardy? The original sentence of treatment and probation was never executed because the judge did not want her going to the only facility willing to take a third trimester pregnant female. Is this allowed?

Posted by: Liz S | Sep 26, 2013 5:04:52 PM

I am a someone who found out how broken and out of date the federal system is from the inside. I was arrested in the united states for having undocumented immigrants in my car. I strongly believe the sentencing guideline violates the double jeopardy rule and this is why. The crime itself held a 0-3 month punishment. I have one felony DUI 8 years before my federal that i did one night in county jail, have paid all fines and DMV Fees and attended MADD classes I consider this a crime committed and payed for. I also have possession of marijuana conviction 9 years and 11 months before my federal arrest for which i served 55 days in county jail, another crime committed and sentience served. i also had a false allegation that i was detained for a day but released and charges dropped due to lack of evidence and false name given by witness. Everything that i have done in my past, even though having nothing to do with my federal crime and having served a sentience and paid my debt to society, my time on the sentencing guideline went from 0-3 months to 24-36 months. With that the prosecution had all the power and in my case my no good public defender I was appointed, Leila Morgan with Federal Defenders in San Diego, had me sign a deal that recommended 8-14 months one day before sentencing and didn't leave me a copy. What i did notice was that the crime was changed from transportation of undocumented immigrants to smuggling illegal aliens and aiding and abetting. I got 13 months and 3 years probation. another thing i learned is that probation is a set up intended to return inmates to custody it's not about rehabilitation. I'm have not seen a case study but i think it is safe to say that 80% of federal inmates on probation violate and 60% end up doing more time in custody on violations then time served on there initial crime. Here is how i violated and i am currently with a warrant over my head. I didn't make it in to a scheduled drug test but i called my probation officer and explained to him I wasn't going because I had my kids and no one to watch them. children are not allowed and if you take them you will not be allowed to test. It happened to me once already when he told me to bring them because if i didn't test he would violate me. In order for me to test that day i had to leave my 11, 9, and 7 year old children 7 stories down unsupervised. Due to all this stress and my ADHD I am now having to take depression medication that has came up positive on my last 3 drug test and even though I have prescription for it is a controlled substance so my probation officer sent a letter to the judge and a bench warrant with no bail has been issued. Like I said this is a broken system that needs to be changed.

Posted by: Pablo Alvarez | Mar 24, 2016 10:26:14 AM

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