Double jeopardy and the United States sentencing guidelines.

• Author: Wiet, Elizabeth J.
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In Witte v. United States,(1) the Supreme Court held that where the legislature has authorized a particular punishment range for a given crime, a sentence within that range constitutes punishment only for the convicted offense for purposes of the Double Jeopardy Clause.(2) In this case, the United States Sentencing Guidelines required sentencing courts to consider relevant conduct when computing a sentence within a particular range.(3) The Court held that a defendant could be convicted and sentenced for an offense that a sentencing court had considered as relevant conduct in a previous sentencing.(4)

   This Note concludes that the majority correctly ruled that subsequent conviction of "relevant conduct" does not result in double punishment for the same crimes under the Double Jeopardy Clause. First, this Note contends that the Sentencing Guidelines require the same Double Jeopardy analysis as the one used traditionally. Second, this Note argues that the majority's decision was consistent with congressional intent regarding "relevant conduct" and multiple convictions. Finally, this Note respects Justice Stevens' dissenting argument(5) that the distinction between the character of the defendant and the character of the offense barred a second sentence for actions considered as "relevant conduct" for a previous offense. This Note asserts that Justice Stevens' distinction is unworkable for federal sentencing courts.

2. BACKGROUND

   1. OVERVIEW OF THE DOUBLE JEOPARDY CLAUSE

      The Double Jeopardy Clause provides that no one shall "be subject for the same offense to be twice put in jeopardy of life or limb."(6) The Double Jeopardy Clause protects against both a subsequent prosecution for the same offense after acquittal or conviction(7) and multiple punishments for the same offense.(8) The Double Jeopardy Clause principally restrains courts and prosecutors, while leaving the legislature free to define crimes and fix punishments.(9) Once the legislature has defined crimes and fixed punishments, courts cannot impose more than one punishment for the same offense and, ordinarily, prosecutors cannot attempt to secure that punishment in more than one trial.(10) Courts must assume, absent evidence to the contrary, that Congress did not intend to punish the same offense under two different statutes.(11)

      1. Evolution of the Double Jeopardy Clause Analysis.

         In 1932, the Supreme Court, in Blockburger v. United States,(12) set forth a test to determine whether the Double Jeopardy Clause was violated where a defendant was subject to multiple convictions.(13) The defendant in Blockburger was convicted of violating certain provisions of the Harrison Narcotic Act,(14) including three counts in relation to selling morphine hydrochloride to the same purchaser.(15) Two of these counts charged two separate sale transactions of the drug not in its original stamped package.(16) The third count charged the second sale as having been made not in pursuance of a written order of the purchaser as required by statute.(17) The defendant argued that second and third counts constituted one offense, for which only a single penalty could be imposed.(18) The Court held 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."(19) Thus, under the Blockburger test, the Double Jeopardy Clause is violated where the defendant is prosecuted under two statutes that require proof of the same elements.(20)

         The Supreme Court constructed a different Double Jeopardy test forty years later. In Ashe v. Swenson,(21) the defendant was retried following an initial acquittal for robbing participants in a poker game.(22) The Court held that collateral estoppel was part of the Fifth Amendment guarantee against Double Jeopardy.(23) Writing for the majority, Justice Stewart argued that when an issue of ultimate fact has once been determined by a valid and final judgment, the issue cannot be relitigated.(24) Under the majority's "same evidence" test, when there is a general verdict of acquittal, a court must look at the prior proceedings and conclude whether the jury grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.(25) Justice Brennan concurred with the Ashe majority's(26) holding that the Double Jeopardy Clause includes collateral estoppel.(27) However, he advocated the "same transaction" test, where the Double Jeopardy Clause requires the prosecution to join at one trial all the charges against the defendant which "grow out of a single criminal act, occurrence, episode, or transaction."(28) Thus, Ashe offered the "same evidence" test and the "same transaction" test to determine a Double Jeopardy Clause violation.

         Grady v. Corbin(29) introduced the "same conduct" test to determine Double Jeopardy violations.(30) In Grady, the defendant pleaded guilty to driving while intoxicated, then was later charged with reckless manslaughter and criminally negligent homicide based on the same incident that gave rise to the misdemeanor charges.(31) The Court emphasized that the Blockburger "same elements" test did not sufficiently protect the defendant against subsequent prosecution,32 and consequently, supplanted the Blockburger test.(33) According to the Grady Court, the Double Jeopardy Clause bars subsequent prosecutions if the government will prove the defendant's conduct from a previously prosecuted offense in order to establish an essential element of an offense.(34)

         The Supreme Court overruled Grady's "same conduct" test three years later in United States v. Dixon.(35) In Dixon, two defendants were tried for criminal contempt of court for violating court orders that prohibited them from engaging in conduct that was later the subject of criminal prosecutions.(36) The Court reaffirmed Blockburger's "same element" test for Double Jeopardy violations,(37) and emphasized that the Double Jeopardy protections do not require that a subsequent prosecution satisfy a "same conduct" test.(38) The Blockburger "same element" test is the current test used to determine Double Jeopardy violations.

      2. Enhancement Statutes and the Double Jeopardy Clause.

         Recidivist statutes and other enhanced-sentence laws have been sustained by the Supreme Court against the contention that they violate the Double Jeopardy Clause.(39) These statutes are directed at defendants who are convicted of criminal offenses following at least one previous conviction.(40) The statutes usually include sentence enhancement, parole preclusion, or delayed parole eligibility based on a prior conviction.(41)

         The Supreme Court rationalized that a sentencing court punishes the last offense committed more severely due to the consequence which the party had previously brought himself.(42) A recidivist statute imposes a higher punishment for the same offense upon a person who proves, by a second or third conviction, that the former punishment has been ineffective in reforming him.(43) Thus, enhanced punishment imposed for a later offense is not a new jeopardy or additional penalty for the earlier crime.(44) Rather, the enhancement is "a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one."(45)

   2. SENTENCING BEFORE THE PROMULGATION OF THE SENTENCING GUIDELINES.

      Even before the promulgation of the Sentencing judges had the discretion to take into account circumstances surrounding a criminal's offense at sentencing. In Williams v. New York,(46) the defendant was convicted of murder, and the jury recommended life imprisonment.(47) The trial judge imposed the death sentence after considering additional information from the court's "Probation Department and . . . other sources."(48) The Supreme Court held that a New York judge, charged with the responsibility of determining a sentence under a New York statute with a broad sentencing range, was not restricted to the information received in open court.(49) Rather, the judge was allowed discretion in fixing the punishment.(50) The Williams Court noted that a sentencing judge may exercise wide discretion in the sources and types of evidence he uses when determining the punishment to be imposed within limits fixed by law.(51) A sentencing judge's task, within statutory and constitutional limits, is to assess the type and extent of punishment after guilt has been determined.(52) Thus, the Court held "highly relevant--if not essential--to [a judge's] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics."(53)

      In Williams v. Oklahoma,(54) the defendant pleaded guilty to a murder charge and received a sentence of life in prison.(55) Subsequently, he pleaded guilty to kidnapping the murder victim and received the death penalty.(56) The defendant challenged the death penalty sentence, claiming that the court punished him twice for the same offense when the judge took the murder of his victim into consideration.(57) The Supreme Court held that the sentencing judge could consider the defendant's murder of a kidnapping victim as an aggravating circumstance in determining the kidnapping sentence.(58) The Court reasoned that this would not punish the defendant a second time for the same offense because though the defendant had previously been convicted of the murder, kidnapping was a separate and distinct crime from murder under Oklahoma law.(59) The Oklahoma statute required the imposition of a sentence within a particular range, as determined by the sentencing judge.(60) Once guilt was established, the sentencing judge could consider responsible "out-of-court" information relative to the circumstances of the crime and to the convicted person's life and characteristics...