Multiplicity in the Military

• Author: Major Thomas Herrington
• Pages: 02

I. Introduction

In federal practice, the double jeopardy protection against multiple punishment for rhe same offense has been described as "one of the least understood" and "most frequently litigated" issues.l In military practice, the protection operates under the nomde-guerre "multipiicity." Even so. multiplicity has assumed an identity unique and independent from federal pracrice. Although federal multiplicity practice has had its detractors, military multiplicity practice has been described as a "mess" and a The United States Court of Mill-tary Appeals has itself admitted rhar its concept of muitipiicity is "confu~ing."~

The COUK~'S kinder critics have deemed military multiplicity practice "problematic."' Others have not been gentle with their criticisms.s An overview of the decisions and analyses by the Court of Military Appeals calls to mind an observation Chief Judge Cuthbert UT Pound made of the New York Court of Appeals: "So two cases are exactly alike A young attorney once found two opinions in the New York Reports where the facts seemed identical although the

'Judge Ad\ocate General's Carps Coiled Staren Army Current13 aiaigoed BI Chief. Admmlrtraflre Lar I Carps. Office af the Staff Judge Advocate Fort Lows Wash. Ingran Formerl) asslgned BQ Cornmlslloner .Army Court a1 \IllItaly Rai,ieu, 1888-1880, Goidrnmlnl Appellare Couniel United States .lllrsl3slppl SmlD Umrerrlly. 1877. J D , Mllaalrslppl College School or Lam IBSZ LL I1 , The Judge Advocate Genersrs School. 1881 Thlr BrllCle IS based upon 8 thew diaserra-f l m that the author submitted Lo satisfy. m part, the degree iequiiemenls of the 39thJudge Advoeafe Officer Graduate Course

' Whslen v Unlfed SfBteS, 415 U S 684, 688-705 (ISSO) (Rehnquiat J , dlllenlmg)

J , dasenrmg) is 'mess

4 Cnired States v Hickson. 22 \I J 387, 382 (C M X 1884) (Cox J , concurring m

tho 'The Umred States Air Farce Court UP \Ilhfarr Revle~ has dended the mlllmry

I_*I"Lt)mulflpllcx) rules In Lhrled Slates 1 Barnard

sa\or of rhleh can onl) be lmagmed and noier expenenred ' Lnlred States 1 Meace, 20hlI 972 872-73(AFC>IR 1881)

law was in conflict, but an older and more experienced attorney pointed out to him that the names of the parties were different

11. "Yultiplicity" in Federal Practice

The United States Court of Military Appeals has identified three forms of objectionable multiplicity: (1) multiplicity in charging: (2) multiplicity in findings: and, (3) multiplicity m sentencing In federal practice, the word "multipiicity," when used as a term of ama refers to the practice of charging the same offense in more than one count Although the military concepts of multiplicity for findings and multiplicity for sen. tencing do not exist as such in federal practice, federal courts apply parallel but nevertheless distinct principles. To understand the federal multiplic~ty rules,Lo one must firit understand the underlying constitutional principles and the system of criminal Justice that American legislatures hare developed from these principles.

1. The Constitutional and Legislative Basesfor Federal Multiplicity

   Two principies of constitutional law define the federal rules of multiplicity. The first is the constitutional doctrine of separation of powers. The second IS the Double Jeopardy Clause of

   the Fifth Amendment, which states that no person "shall be subject for the same offense to be twice put in jeopardy of life or limb."

   1. The Doctrine of Separation of Powers.-The framers of the United States Constitution vested executive, legislative, and judicial powers in three, coordinate branches of government." Aithough the Constitution does not hermetically seal judicial, executive, and legislative powers within each respective branch of this tripartite system,12 the Supreme Court is nevertheless vigilant in guarding against any encroachment of power that might endanger "the integrity and maintenance of the system of government ordained by the Constitution."L3 With respect to the power to enact law, the Constitution provides that "[alll legislative Powers herein granted shali be vested in a Congress of the United States.""

   For purposes of federal multiplicity, one concept defines the interrelationship of the legislative, executive, and judicial branches. "the basic principle that within our federal constitutional framework the legislative power, including the power to define criminal offenses and to prescribe the punishments co be imposed upon those found guilty of them, resides wholly with the Congress."" The powers of the executive and judicial branches may be stated as corollaries of this principle.

   The executive power to prosecute derives solely from legislative enactments because "[ill 1s the Congress, and not the prosecution, which establishes and defines offenses ''l6 Accordingly, the executive branch exercises its congressionally-created authority to prosecute free from judicial supervision. This notion is premised on the principle that "[tlhe Government, and not the courts, is responsible for initiating a criminal prosecution, and, subject to applicable constitutional

   "Imrnlgrarian and haturalliafmn S e w v Chadha. 462 US 010, 862 (1882) (Pou-ell d . cmcurnn8 in the jud%meoll

   IID""1s Field s Clark. 143 US 648 682 (1882)

   limitations it IS entitled to choose those offenses for which It wishes to indict and the evidence upon which It wishes to base the prosecution.""

   The judiciary's role in adjudging and reviewing the canstnu. tional permissibility of punishments 1s iimlted to ascertaining the punishments authorized by Congress because "once the legislature has acted courts may not impose more than one punishment for the same offense."lB In this respect. the Double Jeopardy Clause has been described as an "embodiment" of the doctrine of separation of powers.1s

   2 The Double Jeopardy Clallse-The Double Jeopardy Clause is "cast explicitly in terms of" protecting against successive trials for the same offense.20 Nevertheless. the Supreme Court interprets the Double Jeopardy Clause as a prohibition against multiple punishments for the same offense at a single trial In this respect, the clause "does no more than prevent the sentencing court from prescribing greater punishment than the legislature Several constitutional provmons restrict the power of legislatures to create and de. fine offenses,23 but "[flew If any. limitations are imposed by the Double Jeopardy Clause on the legislatwe power to define

   offenses."?' As the Supreme Court has described the iegisia. tive power to create and define offenses, "[tlhere is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction."z3 Accordingly, "[tjhe question of what punishments are constitutionaliy permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. Where Congress intended . . to impose multiple punishments, imposition of such sentences does not violate the Constitution."z6 In effect, the double jeopardy protection from multiple punishments is coextensive with legislative limitations on the courts and prosecutors under the separation of powers doctrine. This redundancy is illustrated by two early decisions.

   In the 1873 decision Ex parte Lave,$' the Court first suggested that the Double Jeopardy Clause includes an implicit prohibition against multiple punishment for the same offense. Lange was convicted of a single violation of a single statutory offense. The trial court sentenced Lange to a term of confinement and a fine: the statute authorized punishment in terms of confinement or a fine. The Lange Court first discussed a "maxim of the common law"

   If there is anything settled in the jurisprudence of Eng-land and America, it LS that na man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, . . . there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the Same facts, for the same statutory offense $8

   2'Sannbna 137 U S 81 68 Some federal C O U ~ hale gone IO far to ray that the

   Double Jeopardy Clause glaeen m lUml13 0" the power of Congress to define rho allorable unh of proircurmn and puniihmenf where all the charaen are brought mone IUI~" United Stares 7 Johnion. 000 FZd ,517, 1518 (DC Cir IOODj (quoting Cnltsd State8 s McDonald 682 F26 376, 377 (5th Cir 1882))

   The Court stared that [his principle of common law was "very clearly" embodied within the "sprit'' of the Con~titution.'~ The Court concluded, "The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tned for it ''13

   Fourteen years later, the Court decided In re Sno~.j-

   Al-

   though the case differed from Lange factually. those facts raised an issue within the scope of the Court's prerious pronouncement on the Double Jeopardy Clause The Court, how-. ever. referenced neither Lange nor the Double Jeopardy Clause The Court considered the matter solely as a question of whether Congress had authorized separate punishments In other nords. the case turned an the principle of separation of powers

   Snow received three separate con\ ictions for unlawful cohabitation with the same woman One alleged unlawful cohabitation from January 1, 1883, through December 31, 1883; another alleged unlawful cohabitation from January 1. 1884, through December 31, 1884; the last alleged unlawful cohabitation from January 1. 1885, though December 31, 1886.3' In holding that Snow had committed but a single, continuous violation of the statute, the Court relied on the English case...