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Amdt5.3.7.1 Legislative Discretion as to Multiple Sentences

Fifth Amendment:

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.

A single criminal action may violate multiple laws resulting in multiple sentences.1 The Double Jeopardy Clause does not appear to bar legislatures from splitting criminal actions that occur in a single transaction into separate crimes thereby allowing prosecutors a choice of charges to try and making multiple punishments possible.2 In Missouri v. Hunter, the Supreme Court stated: “Where . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct . . . 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.” 3

The Court has held that the Double Jeopardy Clause establishes a presumption against multiple punishments for the same criminal transaction unless Congress has “spoken in language that is clear and definite” 4 that multiple punishments are to be imposed. Absent clearly expressed congressional intent, courts use the “same evidence” rule to determine whether Congress intended to punish conduct occurring in the same criminal transaction as separate offenses. Explaining the “same evidence” rule in Blockburger v. United States, the Supreme Court stated: “[W]here 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.” 5 For example, in Gore v. United States,6 the Court held that because the defendant’s act of selling narcotics violated three distinct criminal statutes, each of which required proof of a fact not required by the others, the government could prosecute the defendant on all three counts in the same proceeding.7

The Court has also held that the “same evidence” rule does not upset “established doctrine” that, for double jeopardy purposes, “a conspiracy to commit a crime is a separate offense from the crime itself,” 8 or the related principle that Congress may provide that predicate offenses and “continuing criminal enterprise” are separate offenses.9 On the other hand, in Whalen v. United States,10 the Court determined that a defendant could not be punished separately for the crimes of rape and killing in the course of rape when the offenses concerned a single criminal transaction and victim, the statutes required proof of the same facts, and the statutes and legislative history did not indicate that Congress wanted the offenses punished separately.11 A guilty plea ordinarily precludes collateral attack.12

Multiple sentences may arise in (1) “double-description” cases in which conduct arising out of a single transaction violates multiple criminal laws (e.g., Gore v. United States, 357 U.S. 386, 392–93 (1958) (one sale of narcotics resulted in three separate counts: (i) sale of drugs not in pursuance of a written order, (ii) sale of drugs not in the original stamped package, and (iii) sale of drugs with knowledge that they had been unlawfully imported)); and (2) “unit-of-prosecution” cases in which the same conduct may violate the same statutory prohibition multiple times. E.g., Bell v. United States, 349 U.S. 81 (1955) (defendant who transported two women across state lines for an immoral purpose in one trip in same car indicted on two counts of violating Mann Act). See Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 111–22. back
Albernaz v. United States, 450 U.S. 333, 343–44 (1981) (defendants convicted on separate counts of conspiracy to import marijuana and conspiracy to distribute marijuana for the same marijuana). back
Missouri v. Hunter, 459 U.S. 359, 368–69 (1983) (separate offenses of “first degree robbery” defined to include robbery under threat of violence and “armed criminal action” ). back
United States v. Universal C.I.T. Corp., 344 U.S. 218, 221–22 (1952). back
Blockburger v. United States, 284 U.S. 299, 304 (1932). Blockburger was not a double jeopardy case, but it derived the rule from Gavieres v. United States, 220 U.S. 338, 342 (1911), which was a double jeopardy case. See also Carter v. McClaughry, 183 U.S. 365 (1902); Morgan v. Devine, 237 U.S. 632 (1915); Albrecht v. United States, 273 U.S. 1 (1927); Pinkerton v. United States, 328 U.S. 640 (1946); Am. Tobacco Co. v. United States, 328 U.S. 781 (1946); United States v. Michener, 331 U.S. 789 (1947); Pereira v. United States, 347 U.S. 1 (1954); Callanan v. United States, 364 U.S. 587 (1961). back
357 U.S. 386 (1958). back
See also Albernaz v. United States, 450 U.S. 333 (1981); Iannelli v. United States, 420 U.S. 770 (1975) (defendant convicted on two counts, one of the substantive offense, one of conspiracy to commit the substantive offense; defense raised variation of Blockburger test, Wharton’s Rule requiring that one may not be punished for conspiracy to commit a crime when the nature of the crime necessitates participation of two or more persons for its commission; Court recognized Wharton’s Rule as a double-jeopardy inspired presumption of legislative intent but held that congressional intent in this case was “clear and unmistakable” that both offenses be punished separately). back
United States v. Felix, 503 U.S. 378, 391 (1992). But cf. Rutledge v. United States, 517 U.S. 292 (1996) ( 21 U.S.C. § 846, prohibiting conspiracy to commit drug offenses, does not require proof of any fact that is not also a part of the continuing criminal enterprise offense under 21 U.S.C. § 848, so there are not two separate offenses). back
Garrett v. United States, 471 U.S. 773 (1985) ( “continuing criminal enterprise” is a separate offense under the Comprehensive Drug Abuse Prevention and Control Act of 1970). back
445 U.S. 684 (1980). back
The Court reasoned that a conviction for killing in the course of rape could not be had without providing all of the elements of the offense of rape. See also Jeffers v. United States, 432 U.S. 137 (1977) (no indication in legislative history Congress intended defendant to be prosecuted both for conspiring to distribute drugs and for distributing drugs in concert with five or more persons); Simpson v. United States, 435 U.S. 6 (1978) (defendant improperly prosecuted both for committing bank robbery with a firearm and for using a firearm to commit a felony); Bell v. United States, 349 U.S. 81 (1955) (simultaneous transportation of two women across state lines for immoral purposes one violation of Mann Act rather than two). back
United States v. Broce, 488 U.S. 563 (1989) (defendant who pled guilty to two separate conspiracy counts is barred from collateral attack alleging that in fact there was only one conspiracy and that double jeopardy applied). back