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.
Successive prosecutions raise double jeopardy concerns. It is more burdensome for a defendant to face charges in separate proceedings, and if those proceedings occur over a lengthy period, the defendant must live in a continuing state of uncertainty. At the same time, multiple prosecutions allow the state to hone its trial strategies.1
In Brown v. Ohio,2 the Court applied the “same evidence test” to bar successive prosecutions 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 overturned the second conviction,3 observing that each offense required the same proof and for double jeopardy purposes met the “same evidence” test in Blockburger v. United States.4 The Court later applied the same principles to hold that a conviction for failing to reduce speed to avoid an accident did not preclude a second trial for involuntary manslaughter. In reaching this conclusion, the Court reasoned that failing to reduce speed was not a necessary element of the manslaughter offense.5
The Brown Court noted some limitations to its holding6 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.” 7 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.8 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.9
-
Footnotes
- 1
- For discussion on this dynamic, see Grady v. Corbin, 495 U.S. 508, 518–19 (1990), overruled by United States v. Dixon, 509 U.S. 688 (1993) ( “We therefore accept the Government’s invitation to overrule Grady, and Counts II, III, IV, and V of Foster’s subsequent prosecution are not barred.” ).
- 2
- 432 U.S. 161 (1977). Cf. In re Nielsen, 131 U.S. 176 (1889) (prosecution for adultery held impermissible following the defendant’s conviction for cohabiting with more than one woman, even though second prosecution required proof of an additional fact—that he was married to another woman).
- 3
- See also Harris v. Oklahoma, 433 U.S. 682 (1977) (defendant who had been convicted of felony murder for participating in a store robbery with another person who shot a store clerk could not be prosecuted for robbing the store, since store robbery was a lesser-included crime in the offense of felony murder).
- 4
- 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).
- 5
- Illinois v. Vitale, 447 U.S. 410 (1980).
- 6
- The Court suggested that if the legislature had provided that joyriding is a separate offense for each day the vehicle is operated without the owner’s consent, so that the two indictments each specifying a different date on which the offense occurred would have required different proof, the result might have been different, but this, of course, met the Blockburger problem. Brown v. Ohio, 432 U.S. 161, 169 n.8 (1977). The Court also suggested that an exception might be permitted where the state is unable to proceed on the more serious charge at the outset because the facts necessary to sustain that charge had not occurred or had not been discovered. Id. at 169 n.7. See also Jeffers v. United States, 432 U.S. 137, 150–54 (1977) (plurality opinion) (exception where defendant elects separate trials); Ohio v. Johnson, 467 U.S. 493 (1984) (trial court’s acceptance of guilty plea to lesser included offense and dismissal of remaining charges over prosecution’s objections does not bar subsequent prosecution on those “remaining” counts).
- 7
- United States v. Felix, 503 U.S. 378, 389 (1992). The fact that Felix constituted a “large exception” to Grady was one of the reasons the Court cited in overruling Grady. United States v. Dixon, 509 U.S. 688, 709–10 (1993)
- 8
- Witte v. United States, 515 U.S. 389 (1995) (consideration of defendant’s alleged cocaine dealings in determining sentence for marijuana offenses does not bar subsequent prosecution on cocaine charges).
- 9
- Monge v. California, 524 U.S. 721, 728 (1998).