Dual sovereignty, due process, and duplicative punishment: a new solution to an old problem.

Author:Adler, Adam J.

NOTE CONTENTS INTRODUCTION I. THE DUE PROCESS PROTECTION FROM MULTIPLE PUNISHMENTS A. Origins of the Protection B. Scope and Significance of the Problem II. AVOIDING REDUNDANT PUNISHMENTS A. Same Offense B. Non-Conflicting Interests 1. Discerning Interests 2. Evaluating Interests in Light of Punishments 3. "Phantom" Due Process Violations III. THE IMPACT ON PLEA BARGAINS IV. SOME OBJECTIONS A. Legislatures Intend to Assign Multiple Punishments B. Prohibiting Multiple Punishments Will Enable Quashing C. Prosecutorial Discretion 1. Prosecutors, Not Judges, Should Evaluate Interests 2. Selective Charging CONCLUSION INTRODUCTION

The Double Jeopardy Clause provides three types of protection: "[i]t protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." (1) While the protections afforded by the Clause are, in a sense, quite broad, the Clause carries with it a major exception: the dual sovereignty doctrine. The Supreme Court explained this doctrine in Heath v. Alabama:

The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offences." As the Court explained in Moore v. Illinois, "[a]n offence, in its legal signification, means the transgression of a law." Consequently, when the same act transgresses the laws of two sovereigns, "it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable." (2) Under the dual sovereignty doctrine, so long as two offenses are defined by different jurisdictions, (3) they cannot constitute the "same offense." This is true even if the offenses contain identical elements and even if the underlying statutes contain identical language. The result is that the Double Jeopardy Clause does not apply in a multi-sovereign context. For example, a defendant who commits a kidnapping across two states can be charged, convicted, and punished three times--once by each state and once by the federal government.

The dual sovereignty doctrine has been the subject of substantial scholarly criticism. Most opponents believe the doctrine is fundamentally unfair to defendants, that it is directly at odds with the values underlying the Double Jeopardy Clause, and that it lacks historical and constitutional legitimacy. As a result, scholars have argued that the doctrine should be abolished, (4) replaced, (5) or otherwise modified (6) to protect rights and ensure fairness. The problem with most of these criticisms is that they focus too much on the Double Jeopardy Clause and the dual sovereignty doctrine itself, to the exclusion of other provisions of the Constitution that can provide a solution.

In this Note, I will look to the Due Process Clause to show that, notwithstanding the dual sovereignty doctrine, a jurisdiction should not have the unfettered ability to punish a defendant after the defendant has already received punishment for the same crime from another jurisdiction. Specifically, I will argue that when the interests of one sovereign state are fully or partially vindicated by another state, the sovereign should be able to impart only as much additional punishment as is necessary to fully vindicate its interests. Any further punishment would violate a defendant's due process rights.

This Note has four parts. In Part I, I will explore the constitutional protection from multiple punishments for the same offense. I will show how the protection against multiple punishments is rooted not just in the Double Jeopardy Clause, but also in the Due Process Clause. (7) In Part II, I will show how the protection from multiple punishments can limit the punishment a sovereign can impose on a defendant who has already received punishment for the same offense. In Part III, I consider how the protection from multiple punishments can impact the plea bargaining process. Finally, in Part IV, I will introduce and respond to some of the objections that can be levied against my proposal.


    While the Supreme Court has long recognized that the Double Jeopardy Clause protects individuals from multiple punishments for the same offense, the Court's reasoning in multiple-punishment cases suggests that the protection can be found not only in the Double Jeopardy Clause, but also in the Due Process Clause. In this Part, I will show how each of these sources independently provide protection from multiple punishments. In doing so, I will show how the Due Process Clause can protect defendants from multiple punishments even when the Double Jeopardy Clause does not.

    1. Origins of the Protection

      The protection from multiple punishments can be traced back to Ex Parte Lange. (8) In that case, a defendant was charged under a statute that authorized one of two punishments: a fine, not to exceed $200, or imprisonment for up to a year. (9) Despite the fact that the statute authorized only one of these sentences, the trial court imposed both. (10) In an opinion written by Justice Miller, the Supreme Court rejected the punishment. Justice Miller explained his decision using two rationales. First, he argued that the sentence at issue in the case violated the Double Jeopardy Clause and the common law understanding of double jeopardy. (11) Second, he found that the sentence violated Lange's due process right to receive a punishment authorized by Congress. Specifically, he explained that the punishment should be void "because [the judge] had no power to render such a judgment." (12)

      In subsequent cases, the Supreme Court extended both of these rationales. For example, in North Carolina v. Pearce, the Court cited Lange's reference to common law double jeopardy principles when it concluded that a defendant should receive credit for time served when he is resentenced following a successful appeal. (13) Similarly, in Whalen v. United States, the Court extended the due process justification when it found that "the dispositive question" when it comes to multiple punishments is whether the sentence at issue is authorized by the legislature. (14) According to the Whalen court: "If a federal court exceeds its own authority by imposing multiple punishments not authorized by Congress, it violates not only the specific guarantee against double jeopardy, but also the constitutional principle of separation of powers.... (15)

      While the Supreme Court has extended both due process and double jeopardy rationales, the Court has, unfortunately, conflated the two, making it difficult to see how the due process protection differs from the double jeopardy protection. (16) In Ohio v. Johnson, for example, the Court referred to the double jeopardy rationale while applying due process reasoning:

      [T]he final component of double jeopardy--protection against cumulative punishments--is designed to ensure that the sentencing discretion is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are "multiple" is essentially one of legislative intent. (17) Somehow, the double jeopardy protection from multiple punishments, if one ever really existed, (18) morphed into the due process protection. Indeed, one need only replace the phrase "double jeopardy" with "due process" in the quote above to see that the Court's reasoning in Johnson is, to put it mildly, confused. (19) Unfortunately, Ohio v. Johnson is not an isolated incident. The Court's conflation of double jeopardy and due process protections is rather extensive. (20) As Justice Scalia once recognized, the dispositions of the Court's double jeopardy cases is "entirely consistent with the proposition that the restriction [on multiple punishments] derive[s] exclusively from the due process requirement of legislative authorization." (21) As a consequence, there are only a handful of cases following Lange that properly reference the Due Process Clause as a protection from multiple punishments. (22) By and large, it is a forgotten right.

    2. Scope and Significance of the Problem

      It is worth taking a moment at the outset to consider why this is an interesting problem. The fact that a protection from multiple punishments resides in the Due Process Clause means that defendants should receive this protection even when the Double Jeopardy Clause does not apply. More specifically, it means that defendants should have protection from multiple punishments in a dual-sovereign context. (23)

      The protection from multiple punishments can be understood in two parts: first, as a protection from multiple punishments imposed "at a single criminal trial," and second, as a protection from "attempts to secure additional punishment after a prior conviction and sentence." (24) For the most part, courts have focused only on the former, (25) to the exclusion of the latter. (26) On closer inspection, this is not surprising. If the government cannot prosecute a defendant multiple times for the same offense, then it follows immediately that the government cannot punish a defendant across multiple prosecutions for the same offense. After all, if a defendant cannot be tried, he cannot be punished. Viewed in this light, the traditional double jeopardy protection from multiple prosecutions supersedes much of the protection from multiple punishments. The result is that courts have not had much need to explore the contours of the protection from multiple punishments across different trials.

      What makes the dual-sovereign...

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