Portioning punishment: constitutional limits on successive and excessive penalties.

Author:King, Nancy J.



  1. The Court's Efforts to Define Constitutional

    Limits on Successive and Excessive Punishment 106

    1. Proportionality Review 106

      1. Review of Proportionality Under the

        Eighth Amendment 108

      2. Substantive Due Process Limits on

        Punishment 112

    2. Limits on Multiplicity 114

      1. Deference to Legislative Choice 115

      2. Limiting Legislative Choice 116

      3. The Conflict 117

    3. The Challenge 125 II. Protecting Liberty Without Halper or Grady:

      Double Jeopardy Protection Contingent upon

      Legislative Definitions of Offense 126

    4. The Constitutionally Based Presumption

      Against Multiplicity 128

    5. Misplaced and Misunderstood Functions 130

      1. Prosecutorial Harassment 130

      2. Finality and Repose 135

      3. Risk of Convicting the Innocent 138

      4. Jury Nullification 141

      5. Proportionate Punishment 144

    6. When Seeking the Intent of One Legislature

      Lacks Meaning 146 III. Limits on Proportionality 149

    7. Scope of Protection: Guidelines for Application 150

      1. Proportionality Review for All Penalties:

        Exemptions for None 151

      2. Cumulating Penalties of Separate Sovereigns 154

      3. Cumulating Criminal Sanctions with Civil

        Sanctions: Defining When a Civil Sanction

        Is a "Fine" 158

        1. The General Rule. When Civil Sanctions Are

          "Fines" Under the Eighth Amendment 162

        2. Containing Compensation As a Catch-All

          Remedial Justification 171

        3. When the Government Is Not a Party 179

      4. Cumulating Different "Offences"--

        Defining the Unit of Culpability Under

        the Eighth Amendment? 181

    8. Determining Excessiveness 186

      1. Heightened Scrutiny for Certain Categories

        of Punishment 186

      2. Proportionality Review for All Penalties,

        Including Civil Forfeiture 190

      3. Calibrating Penalties and Culpability

        When Offenses Overlap 193 IV. Cumulative Review As Common Sense 195


        There has been a remarkable increase during the last decade in the imposition of overlapping civil, administrative, and criminal sanctions for the same misconduct,(1) as well as a steady rise in the severity of those sanctions.(2) In response, defendants have balked, arguing that legislators and the juries, judges, prosecutors, and regulators who apply legislatively authorized sanctions have overstepped the bounds of punishment permitted by the Constitution. Claiming that their penalties violate the Double Jeopardy, Due Process, Excessive Fines, and Cruel and Unusual Punishments Clauses in the Bill of Rights, civil and criminal defendants are prompting courts to reevaluate constitutional limits on excessive and successive penalties. Over the past six years, the United States Supreme Court has addressed some of these challenges, but its decisions have been tentative or contradictory.

        The resulting uncertainty surrounding constitutional limits on punishment is most troublesome in cases in which defendants face cumulative or successive penalties for the same conduct. In one or more proceedings, defendants may be convicted of multiple criminal charges, subjected to both civil and criminal penalties, punished by more than one state or by both state and federal governments, or ordered to pay multiple punitive damage awards that are shared between the winning plaintiffs and the states in which plaintiffs bring suit.(3)

        In this Article, I propose an approach for evaluating when these overlapping penalties exceed constitutional limits--an approach that recognizes that the various guarantees of the Fifth, Eighth, and Fourteenth Amendments must be considered together, as a forest rather than as separate free-standing trees. I begin with the premise that the contours of constitutional limits on the amount of punishment that can be inflicted for a particular wrong, traditionally a part of Eighth Amendment and due process law, are inseparable from the constitutional limitations on the frequency with which an offender can be punished for that wrong, typically rooted in double jeopardy doctrine. The two forms of regulation operate in tandem to regulate the totality of punishment.

        A somewhat imperfect but useful analogy illustrates the point. When Congress first set out to detect and deter the laundering of illegally obtained cash, it insisted that banks report all cash transactions over $10,000. Faced with only a per-transaction limit on amount, money launderers happily laundered just as much tainted cash as they had before by breaking larger transactions into multiple transactions of less than $10,000. It was not long before Congress realized that effective control of this behavior would require, at a minimum, that banks report not only single transactions over $10,000, but also multiple transactions that, when added together, totalled $10,000 or more.(4) It is time that courts attempting to limit punishment under the Bill of Rights learn the same lesson. A per-proceeding or per-charge limit on the size of a penalty leaves the government free to extract as many separate penalties as it wishes. So long as double jeopardy, due process, and common-law preclusion rules permit successive penalties for the same conduct, Eighth Amendment and due process rules limiting the amount of punishment must consider multiple penalties together. The need for some sort of "cumulative excessiveness" review thus varies inversely with the degree of protection against multiple penalties for the same conduct: the less vigorous the protection against multiple penalties, the more vigorous proportionality review must become, and vice versa.

        Building upon this intuitively simple relationship, I propose in this Article several modifications to existing Fifth and Eighth Amendment doctrine. To illustrate the pressing need for attention to this area of the law, I first summarize in Part I the existing constitutional limits on multiplicity and proportionality of punishment and detail some of the puzzles created by the Court's most recent decisions. In Part II, I suggest purging the concept of proportionality from double jeopardy law and scaling back double jeopardy to a bar against multiple punishments for the same offense, as legislatively defined. I argue that legislatures are free to create, and prosecutors and courts are free to enforce, multiple penalties--separate offenses--that punish the same conduct, but that the Eighth Amendment and the Due Process Clause limit the total amount of punishment that legislatures and prosecutors can pile upon one offender in this way. In Part III, I explore how such "cumulative excessiveness" review might work under the Eighth Amendment. In particular, I examine how courts can determine which penalties to cumulate together and when those accumulated penalties exceed the limits of the Eighth Amendment.

  2. The Court's Efforts to Define Constitutional Limits on

    Successive and Excessive Punishment

    Two problems have confounded the Court in its attempts to define constitutional limits on the government's ability to punish. The first is the difficulty of determining when punishment is unconstitutionally disproportionate: How much is too much? The second is the puzzle posed by any theory that limits multiple punishment: What is it that may be punished only once? A legislatively defined offense, a discrete act or transaction, a course of conduct, a collection of evidence, or something else?

    Not only the scope, but also the source of constitutional limits on the amount and repetition of punishment are controversial. Constitutional constraints on penalties could plausibly be attributed to one or all of several cryptic clauses--the Due Process Clauses, the Excessive Fines and Cruel and Unusual Punishments Clauses, or the Double Jeopardy Clause. In disputing which text is the proper source of restrictions on the frequency or severity of penalties, some of the Justices' opinions appear to treat these limits like hot potatoes, tossing them from one clause to the next, hoping they will be cooler to handle somewhere else. Debates over which part of the Bill of Rights is the best doctrinal home for a particular, often novel, theory of constitutional regulation are not uncommon and still dominate, for example, much of the commentary about jury discrimination and abortion. These debates, however, usually enjoy a well-accepted body of precedent that establishes rudimentary boundaries of scope and purpose for at least one of the doctrinal options, providing a settled pivot around which a debate can revolve. Because of the Court's limited or inconsistent declarations about the scope of constitutional prohibitions on excessively severe or duplicative penalties, no such pivot exists.

    1. Proportionality Review

      The Court has recognized that the Bill of Rights contains some limits that require that punishment be proportionate to the wrong punished, but it has done so only with profound reluctance. Often, it has opted not to enforce a penalty because of some flaw in the procedure that produced it, rather than because the penalty itself is unduly severe. For example, Professor Joseph Hoffmann has lamented that the Court's death penalty jurisprudence in the years since Gregg v. Georgia(5) has been a complex tangle of procedural review of death sentencing proceedings, with little substantive review of who deserves death and who does not.(6) Procedure, not proportion, was also the focus of the Court's latest attempt to define limits on punitive damage awards in private litigation.(7) Some Justices prefer to sidestep proportionality review of penalties under both the Cruel and Unusual Punishments Clause and the Due Process Clauses by reading such review right out of these provisions, at least in particular contexts. Justice Scalia and Chief Justice Rehnquist have insisted that the Cruel and Unusual Punishments Clause bars only particular methods of punishment, regardless of offense or offender.(8) Justice Scalia has also argued that the Due Process Clauses contain absolutely no substantive limit on penalties at all.(9) In other cases, the Court has dismissed claims of unconstitutional disproportion...

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