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October 24, 2017

Can a defendant be given two maxed-out consecutive manslaughter sentences for killing one person?

The puzzling question in the title of this post would appear to be the remarkable issue that is now going to be considered by the top court in the Old Dominion State according to this local story headlined "Virginia Supreme Court will rule on Gregg sentencing."  Here is the press report that I am still trying to wrap my mind around:

Almost two years after a Fauquier jury found a Marshall man guilty of manslaughter, the legal debate over his prison sentence will go to the state’s highest court. The Virginia Supreme Court announced Friday that it will hear the prosecution’s appeal of a decision that would void one of two homicide convictions of Carroll E. “Tootie” Gregg Jr. in December 2015.

The circuit court jury recommended a 10-year sentence on each.  Judge Herman A. Whisenant Jr. exercised a state code provision that allowed him to add three years on each conviction, which he suspended. Mr. Gregg got a 26-year prison sentence, with six years suspended.

He shot and killed Junior Jordan Montero Sanchez, 23, just after midnight June 6, 2014. Mr. Sanchez and a towing company coworker had gone to Mr. Gregg’s Conde Road apartment to repossess a pickup truck for delinquent loan payments.

But, Warrenton defense attorneys Blair Howard and T. Brooke Howard II immediately objected to the pair of manslaughter sentences, contending that the U.S and Virginia constitutions protect individuals from being punished twice for the same crime.

A Virginia Court of Appeals panel last December ruled that the dual convictions — on two involuntary manslaughter charges, one of them for “unlawfully shooting at an occupied vehicle wherein death resulted” — constituted double jeopardy. The panel sent the case back to Fauquier County Circuit Court, where the prosecution would choose which conviction to apply.

But, the state attorney general’s office appealed that decision to the Supreme Court, which last week agreed to take the case.... “It will indeed be interesting to see the outcome in the Virginia Supreme Court,” Fauquier County Commonwealth’s Attorney James P. Fisher said.

The attorney general’s office handles most appeals of criminal cases that start with local prosecutors. Mr. Fisher has argued that the vehicle shooting conviction has different elements, even though state code labels it “involuntary manslaughter.”

The Virginia Court of Appeals ruling in this case is available at this link and it strikes me as eminently sensible.  Moreover, it has never really dawned on me to imagine that prosecutors could try to ramp up the punishment for a single killing by seeking multiple convictions and multiple consecutive sentences for every different type of possible homicide that the single killing might constitute. (For example, here in Ohio, we have nine different types of homicide and a drunk driver who kills one person might readily be found guilty of six different types of homicide.  I could never imagine a prosecutor looking to convict such a drunk driver of six different counts and asking for six max sentences to run consecutively on each count for a single killing.)

Perhaps I am missing something when I suggest it seems crazy for a defendant to be sentenced to two maxed-out consecutive manslaughter sentences for killing one person.  The local prosecutor and the sentencing judge obviously did not think this kind of doubling up was crazy.  Moreover, it would seem that Virginia Attorney General's office believes there is a legally defensible basis for pursuing a state Supreme Court appeal in order to preserve the double-max sentence imposed by the sentencing court. 

I would be grateful to hear in the comments if and how anyone can make the principled case for a double-max manslaughter sentence in a case involving only a single killing.

October 24, 2017 at 07:10 PM | Permalink


The opinion, of course, summarizes the prosecution's arguments.

Does seem pretty patently wrong but what do I know?

Posted by: Joe | Oct 24, 2017 8:23:56 PM

(It is apparent the prosecutor's arguments is not found convincing -- which I surely won't disagree with -- but perhaps a word on WHY they are so patently unprincipled.)

Posted by: Joe | Oct 24, 2017 8:25:36 PM

Re: WHY SO unprincipled

Because there is no open season on such people 😡👎🏿👎🏿

Some pay $Thousands to hunt & ☠️Kill☠️ an innocent “game” animal ;
Yet at present , prosecutors appear answerable only to God/G-d , or the laws of nature on kinetic energy •

In theory , they answer to the licensing entity of their practice venue , which is about as effective as asking a trespassing alien to Not trespass 😡👎🏿

Kindly , DJB
☠️Nemo Me Impune Lacessit☠️
2017.10.24T2334R (-0400 EDT)

Posted by: Docile the Kind Soul | Oct 24, 2017 11:34:56 PM

Joe, do you really see a principled basis for double punishment based on two different ways to describe a single fundamental harm? If you steal $1 from me, should prosecutors be able to double punish you with a max sentence consecutive for BOTH stealing $1 AND stealing a thing of value? Heck, let's really max this out with 5 consecutive punishments: one for stealing $1, one for stealing four quarters, one for stealing ten dimes, one for stealing 20 nickels, and one for stealing 100 pennies. Can that possibly be justified?

As I see it, homicide laws address the harm of causing a death. Consequently, I cannot see a principled justification for double punishing based entirely/solely on the causing of one death. We are not here talking about one punishment for killing with an aggravating enhancement based on related conduct such as the use of a particular weapon. Rather, at issue here is a 10 year max sentence imposed twice and run consecutive simply by giving different descriptions to the same fundamental act of causing a death. And so I ask again for an account of how this can be justified as a matter of principle or some explanation as to what I am missing to support the efforts by the VA AG office to preserve the original sentence.

Posted by: Doug B. | Oct 25, 2017 12:17:50 AM

I see the prosecutor as engaging in standard and ubiquitous stacking. In this example, a beneficial act gets a stacked prosecution.


Posted by: David Behar | Oct 25, 2017 1:12:38 AM

I've seen before in Virginia where a defendant is charged with Murder as well as Aggravating Malicious Wounding (causing a serious permanent bodily injury with the intent to maim, disfigure, disable, or kill). Obviously, a case where a wounding kills someone would factually support both, but it's also very clearly stacking. Under the Blockburger test, though, there are different elements (one requires a killing, the other requires a wounding).

20-30 years ago, the court would probably have said the intent of the legislature was to make an either/or situation. There are some less serious charges where things can merge together (an assault can merge into an abduction if the assault was just to keep the person there, a reckless driving was considered a lesser included of a DUI, etc). Now, they tend to be more formalistic towards the Blockburger test, particularly when it involves Common Law crimes.

Posted by: Erik M | Oct 25, 2017 9:52:33 AM

"Heck, let's really max this out with 5 consecutive punishments: one for stealing $1, one for stealing four quarters, one for stealing ten dimes, one for stealing 20 nickels, and one for stealing 100 pennies. Can that possibly be justified?"

Sure it can be justified: one is a crime against pennies, one is a crime against dimes, and one is a crime against quarters, etc. That makes as much sense as crimes against pigs, devils, and goats; something that the law--both among the schoolmen and the Romans--once allowed. Fundamentally, if one is going to allow suits against a class of things (money, animals) one can plausibly assert a claim of action against a subset of that class as both are functions of line drawing.

What changed in history is social attitudes. I don't believe that current social mores would allow for such justifications but @david's response is spot on. Social mores can change, maybe they are charging now???

Posted by: Daniel | Oct 25, 2017 10:01:55 AM

This is what you get when you adopt a criminal code but keep common law offenses -- lack of clarity as to legislative intent and to Blockburger.

In my state, we have two clearly separate offenses -- involuntary manslaughter for recklessly causing death (mental state applies to death, location of victim not a fact) and unlawful use of a weapon for shooting from or into motor vehicle (mental state of knowing applies to the shooting into vehicle regardless of whether there are occupants) with an aggravated punishment if anybody dies as a result (no mental state as to death). Additionally, we have a statute expressly covering when cumulative punishments are permitted (essentially incorporating Blockburger). Because of our express statutes, there would be a clear argument in my state that there is no double jeopardy violation. As to principled reasons for the statutes (and I am making the assumption that legislative bodies actually act on principles as opposed to the fad du jour, a dubious assumption) -- one statute is directed at the harm of a homicide and the other statute is directed at the harm of drive by shootings (which potentially place a large number of people at risk).

Posted by: tmm | Oct 25, 2017 4:38:43 PM

This also highlights the absurdity of the proliferation of criminal offenses like "shooting into a vehicle" or "intoxication manslaughter." If there is really a need to consider these offenses separately from their standard or common-law-type counterparts (even if statutory), viz manslaughter and intoxication manslaughter, do it with sentencing enhancements rather than separate, cumulative, overlapping crimes.

There's so much pandering going on in criminal legislation, it's absurd.

Posted by: Fat Bastard | Oct 26, 2017 12:36:01 AM

So long as each offense requires proof of a fact that the other doesn't, they prescribe different offenses (Albernaz v. United States (March 9, 1981)), correct?
So you can be charged with (1) conspiracy to commit murder, (2) possession of an illegal gun during the commission of a crime, (3) using an illegal gun in the commission of a crime,(4) murder, (5) violating a person's civil rights not to be killed because they're black, etc. even though it's all part of the same event?
If using a gun in a crime necessarily includes possessing it, isn't punishing for both possession and usage still punishing twice for the same event?

Posted by: Vital Illinoise | Oct 26, 2017 6:36:42 AM

Sounds like the answer is a bit more complicated than it might look to be at face value.

Posted by: Joe | Oct 26, 2017 1:13:37 PM

And ... what about Gore v United States 1958 ????

Posted by: Claudio Giusti | Oct 26, 2017 3:22:30 PM

Is that still good law?

Posted by: Joe | Oct 26, 2017 4:27:44 PM

Joe, because there are so many criminal laws that cover a range of related harms, this can get complicated in ways that Vital Illinoise suggests when there are many ways to describe components of criminal activity. But I do not think you could get a maxed out double sentence for possessing and using a gun -- e.g., 18 USC 924(C)(1)(A)(ii), provides minimums for gun possessing (5 years), brandishing (7 years) and discharging (10) in conjunction with another crime. I have never heard anyone claim that, based on single discharge of a brandished/possessed gun, a defendant could face 22 years (10+7+5) under the federal provisions.

The critical point here is that there is one harm (a death) and one fundamental crime in play (manslaughter). This case has an added 3 years for use of a gun, and that added punishment arguably raises some of the complications you may have in mind. But I continue to be dumbstruck by the notion that a defendant can be given a double max sentence for two ways to describe a single killing that amounts to manslaughter. And I continue to wait to hear a principled explanation about how this makes any sense beyond the formalities of saying that there are technically different elements in each form of the crime.

Posted by: Doug B. | Oct 26, 2017 4:36:28 PM

I missed your original reply Mr. B., but my "complicated" comment is a result of a long comment thread. For instance, tmm's comment noted:

"As to principled reasons for the statutes (and I am making the assumption that legislative bodies actually act on principles as opposed to the fad du jour, a dubious assumption) -- one statute is directed at the harm of a homicide and the other statute is directed at the harm of drive by shootings (which potentially place a large number of people at risk)."

This would in theory not be "a" harm, but two harms. I'm not accepting that argument here, but it suggests the whole thing isn't bloody obvious. My original comment was that I do not wish to defend the government, but the opinion did put forth the arguments made to defend the prosecution and judge. They thought they were being "principled."

The "formalities" point might be talking past them on that point. The opinion seems to place strong importance on that factor. "Where a legislature intends to impose multiple punishments for the same course of conduct, the imposition of multiple punishments does not violate the Constitution." (citing USSC precedent)

Posted by: Joe | Oct 26, 2017 5:40:48 PM

Doug, much as I hate to say this, Joe is probably right that it's more complicated than meets the eye. My gut tells me this violates DJ, but I am not sure about that. I hope it goes up to SCOTUS.

Posted by: federalist | Oct 26, 2017 6:25:02 PM

I appreciate the continued engagement, but I would love to hear a response to my Ohio drunk driving hypo, and I will keep it simple by just focusing on the prospect of a Ohio drunk driver who kills being clearly subject to conviction for (1) involuntary manstaughter, ORC 2903.04(c), and (2) reckeless homicide, ORC 2903.041, and (3) aggravated vehicular homicide, ORC 2903.06(A)(1)(a). Each of these statutes requires proof of something the other does not, but can it really be the case that a prosecutor could (and should?) charge all three in every drunk driving case and that a judge could (and should?) stack max sentences so that every DD death case has a triple max sentence than these counts each provide?

I get the way a person kills might have all sorts of aggravating factors that can prompted extra charges and extra sentences --- indeed, that happened in this VA case with the gun specs that add 3 years to the 10 year manslaughter max sentence. But the fact VA has two different ways to define what makes for "involuntary manslaughter" cannot mean that a defendant can be double punished for one killing using that same label twice under different definitions if there is to be any base logic to what we call "a crime." Perhaps I am putting too much stock in the fact that the state uses the term "involuntary manslaughter" in both settings and I get that VA seemingly has a confusing criminal code layered on top of common law crimes makes this all a mess. But I am still struggling to understand how killing one person in one can lead to a double max sentence as if he killed two people.

Posted by: Doug B. | Oct 26, 2017 8:06:31 PM

In my opinion: Prosecutors are generally illegal in the eyes of the people, their Oath of Office is to preserve, protect and defend the people and their rights according to State and Federal law.

Posted by: LC in Texas | Oct 26, 2017 9:53:57 PM

I believe the case referenced by Erik M was my case. The facts were that my client stabbed the victim one time in the heart. The victim did not die immediately from the wound, but survived another nine months in a persistent vegatative state before dying.
The Virginia Court of Appeals affirmed holding that Blockberger is the default method of analysis in cases where the legislative intent can't be determined. The Virginia Supreme Court affirmed by Order without issueing an opinion. At oral argument, the Supreme Court, although hostile to the prosecution arguments, kept coming back to the fact that the aggregate of the two sentences of 40 years was the statutory maximum for 2nd degree murder, which implied that my client in effect received only one sentence. It would have been nice to have had an opinion to consider rather than trying to infer the Court's reasoning from oral argument.

Posted by: Fred | Oct 26, 2017 10:38:41 PM

The Texas Penal Code seems to handle this in Chapter 3. http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.3.htm That chapter provides that the sentences for multiple offenses in a "criminal episode" shall run concurrently, but carves out a few exceptions.

Many moons ago, it is/was my understanding that the Texas Penal Code was closely modeled on the Model Penal Code, but with some definite Texas twists. As dysfunctional as Texas often appears to be (and is) legislatively and politically, we have a pretty solid and well-thought out and organized set of statutory laws.

On the rare occasion that I am forced to cull through another states' statutory laws, I am usually appalled at the lack of organization.

Posted by: Fat Bastard | Oct 27, 2017 12:10:22 AM

Doug, I have been in trial and am late in coming to the discussion of double jeopardy overreaching by the State. It happens frequently, and certain prosecutors think they are so clever. For example, for years our appellate courts have approved consecutive sentences for attempted murder and assault with a deadly weapon with intent to kill for the same victim in the same incident. Seems to me one is a common law crime and the other a statutory crime, both dealing with trying to kill someone and not succeeding.

In my opinion, we need to abandon the Blockburger test and instead employthe more functional standard in Brown v Ohio. Brown says that if the proof of one crime automatically proves another crime, the two offenses are the same for Fifth Amendment purposes.

I remember vividly the lecture by professor Peter Low at UVa law school forty five years ago. He said Blockburger is a great example of a case which has come to stand for the headnotes, not the text of the opinion. The opinion talks about same facts, the headnotes talk about elements. (I recall your antipathy for the term "element" in a conversation we had in Raleigh many years ago)\

Since you know my tendency to find Apprendi issues under every bush, I'll submit there is a connection between Apprendi and the double jeopardy issue of bootstrapping punishment. Apprendi, in my opinion, ushered in the functional era of criminal jurisprudence, rejecting the formalistic, angels on a pin ideas of Blockburger. Stevens wrote, "Our inquiry is one not of form but of effect."

Under the functional approach I suggest the following scenario. Think of the jury room deliberation of a charge of Attempted Murder and Assault with intent to kill. Attempted Murder has two "elements" an intent to kill and an overt act designed to bring about the killing. Suppose the overt act is an assault. The foreman asks people to deliberate on the charge of attempted murder and they all agree that the def is guilty of attempted murder, so the foreman checks guilty on the attempted murder verdict sheet.

Then the foreman picks up the Assault with Intent to kill verdict sheet and says we'll now deliberate whether the def assaulted the victim with the intent to kill. In an Emperor has no clothes moment, some juror says, "We have already decided that the def assaulted the victim with intent to kill, so let's check that verdict sheet "guilty" and all go home.


Posted by: bruce cunningham | Oct 27, 2017 3:40:27 AM

The "eminently sensible" ruling said this:

"Where a legislature intends to impose multiple punishments for the same course of conduct, the imposition of multiple punishments does not violate the Constitution." (citing USSC precedent)

Does Mr. B. agree with this statement?

Posted by: Joe | Oct 27, 2017 10:24:20 AM

I think, Joe, this is a reasonable way to approach legislative intent, but not constitutional limits if the "course of conduct" cannot or is not described by the legislature as involving multiple harms. I definitely think it fine, to use one of many possible examples, for the feds to say that downloading child porn carries a mandatory 1 year sentence for each image downloaded and then to say the downloading of 5 images with one click of a file calls for 5 of these 1-year sentences to run consecutively. Here, as I see it, the course of conduct involves 5 harms that can be allowed to carry 5 punishments.

But I do not think a legislature should be allowed to describe/punish the downloading of a single image as one crime committed five different ways by one act --- e.g., the legislature should not be able to say it is a crime "possess" CP of a kid who under 18, or under 16, or under 14, or under 12 and/or under 10 and then stack sentences for these 5 crimes if/when an offender has a single pic of a naked kid aged 9.

I want to make clear, as many comments reinforce, that this can get real complicated in a lot of setting when the statutory/legal descriptions of crimes are distinct and can be reasonably thought to reflect legislative efforts to address distinct harms. But in this case, the guy is going down and getting punished for two count of involuntary manslaughter for causing one single death. I have never seen or heard of a case in which a single killing leads to TWO consecutive max punishments for homicide offenses. Can anyone point to any case in US history in which a defendant killed one person as got max punished under homicide laws (not assault laws) as if he killed two?

Posted by: Doug B | Oct 27, 2017 10:50:24 AM

tmm offered a possible way for "multiple harms" to be present.

Anyway, it seems to me that you have a strong opinion on the matter that I'm not refuting as such. But, it isn't clear to me that it overlaps current Supreme Court doctrine. Bruce's comment reinforces my inclination there to the degree he thinks the doctrine needs to be clarified. What "should" be the case is not clearly what is the case.

And, what is the case under current doctrine is what is being applied, especially to the degree a prosecutor and lower court judge can be "principled" if wrong.

Posted by: Joe | Oct 27, 2017 11:29:29 AM

What sets apart American jurisprudence from the rest of the world is the notion that the "intent of the legislature" is irrelevant to whether or not a statute offends the Constitution.

One of my favorite zingers penned by Justice Scalia is from his concurrence in Ring v Arizona. "I believe that the fundamental meaning of the jury trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives--whether the statute calls them elements of the offense, sentencing factors, or Mary Jane- must be found by the jury beyond a reasonable doubt."

The legislature can be crystal clear that they intend for double punishment under a certain scenario, but if it violates the Fifth Amendment, it is unenforceable.

This is what Marbury v Madison is all about. And Apprendi for that matter.

Apprendi was the "course correction" for the misguided McMillan v Pennsylvania, which invented the term "sentencing factor." Chief Justice Rhenquist defended the Pennsylvania system by saying, "The statute gives no impression of having been tailored to permit the visible possession finding to be THE TAIL THAT WAGS THE DOG of the substantive offense."

Justice Scalia, in Blakely, unmercifully, and humorously, destroyed Rhenquist's faulty logic. He wrote "To be sure, Justice Breyer and the other dissenters would forbid those increases of sentence that violate the constitutional principle that tail shall not wag dog. The source of this principle is entirely unclear. It precise effect, if precise effect it has, is presumably to require that the ratio of sentencing factor add-on to basic criminal sentence be no greater than the ratio of caudal vertebrae to body in the breed of canine with the longest tail. Or perhaps no greater than the average such ratio for all breeds. Or perhaps the median. Regrettably, Apprendi has prevented full development of this line of jurisprudence."

We all need to eliminate any concern of the intent of the legislature from our minds.


Posted by: bruce cunningham | Oct 27, 2017 12:39:40 PM

I'm no fan of people who kill people.

That said, isn't there some principle that unless the law is clear, you go with the more lenient interpretation?

Seems like that ought to apply here.

Posted by: William Jocksuch | Oct 29, 2017 11:37:13 PM

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