Federal Criminal Law

• Author: Norman Abrams
• Pages: 982-985

Page 982

In the past two decades, Congress has enacted many new types of criminal statutes, such as the RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT (RICO) and the continuing criminal enterprise and money-laundering offenses. New approaches to criminal penalties and sentencing have also been adopted, including criminal forfeiture, high mandatory sentences, and the sentencing guidelines. Although the government has been prosecuting these new crimes and penalties, often in combination, for many years, with few exceptions their constitutionality has not been tested in the Supreme Court.

The Constitution as applied to the substantive federal criminal law is largely dormant. The Supreme Court infrequently agrees to review cases raising issues of interpretation of federal criminal statutes. Even rarer is the case in which the Court agrees to consider the constitutionality of a substantive criminal statute. And cases in which the Court holds either substantive criminal legislation or prosecutorial action to be unconstitutional are rarer still. This is not for want of a large number of federal criminal cases in which such issues are raised, nor for a lack of applicable constitutional provisions or doctrines against which federal criminal statues and prosecutions can be tested?for example, DOUBLE JEOPARDY, VAGUENESS, and CRUEL AND UNUSUAL PUNISHMENT.

There have been a few recent exceptions to the prevailing pattern. In Grady v. Corbin, a 1990 decision arising out of a state drunk driving-criminal homicide prosecution, the Supreme Court adopted a revised double-jeopardy test that, among its most important effects, may have an impact on federal RICO and continuing criminal enterprise prosecutions.

Before Grady, the principal test for determining whether the Constitution was violated by successive prosecutions under two different criminal statutes for the same criminal act or transaction was the doctrine described in Blockburger v. United States (1932): that the double-jeopardy prohibition is not violated if each of the statutes involved in the two prosecutions requires proof of a fact that the other statute does not.

The effect of Blockburger has been generally to permit separate prosecutions growing out of the same conduct (even if the essence of the charges are similar) as long as they were based on different federal criminal statutes. In the federal criminal context, the Blockburger standard is easily met; there is little coherence or consistency in the way federal crimes are drafted, and the nature of most of these statutory offenses is such that they have elements quite different from all others.

In Grady, the Court ruled that the Blockburger test should still be applied in the first instance. If this standard is satisfied by a comparison of the elements of the two offenses, it is to be followed by a further inquiry under which the subsequent prosecution is barred if "the government, to establish an essential element of an offense charged in that prosecution, ? prove[s] conduct that constitutes an offense for which the defendant has already been prosecuted."

Rather than focusing, as does Blockburger, on the statutory elements alone, this latter test requires a comparison of what the prosecutor attempts to prove at both of the trials. Justice WILLIAM J. BRENNAN, writing for the majority in Grady, took pains, however, to note that "[t]his is not ? [a] same evidence test. The critical inquiry is what conduct the ? [government] will prove, not the evidence ? [it] will use to prove that conduct." Depending on its subsequent interpretation, application of the Grady test could impose an important restriction on the government's ability to prosecute RICO and continuing criminal-enterprise cases. The RICO offense is committed when a person conducts the affairs of an enterprise (a continuing conspiratorial group or legal entity, such as a corporation or a governmental agency) through a pattern of racketeering activity that involves the commission of two or more related predicate offenses.

Before Grady, the government could, and often did, prosecute RICO cases relying on predicate offenses for which the accused had previously been tried and convicted (and even offenses of which the...