SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 1SUMMER 2000
Double Jeopardy and Punishment: Why an As Applied Approach, As Applied to Separation of Powers Doctrines, Is Unconstitutional
Todd W. Wyatt(fn*)
I. Introduction
Andre Young lives on McNeil Island, a small, mostly wooded island about four miles across Puget Sound from Tacoma, Washington. A six-time rapist,(fn1) Young has served time for all his crimes, but he is not free to leave McNeil Island. This is because Andre Young is a sexually violent predator, involuntarily committed pursuant to the Washington State Sexually Violent Predator Statute.(fn2)
Some form of sexual predator statute exists in every state; some states require notification and registration, some states allow involuntary civil commitment, and some prescribe both notification and commitment.(fn3) Various provenances exist behind these statutes, which have been discussed in detail by other commentators.(fn4) These laws, regardless of the state or exact statute, are frequently challenged on double jeopardy grounds. The functional premise is simple: a person has served his sentence for his crime. This sexual predator statute, whether committing the person or requiring him to register with law enforcement, inflicts punishment for a second time. In other words, the challenge to these laws is that they inflict multiple punishments for the same crime in violation of the Double Jeopardy Clause of the United States Constitution.(fn5) What is not simple, however, is the way courts determine whether a statute inflicts unconstitutional punishment for a second time in violation of the Double Jeopardy Clause.
In Hudson v. United States,(fn6) the United States Supreme Court discussed the test used to determine whether a statute is criminally punitive or nonpunitive for double jeopardy purposes.(fn7) An in-depth analysis of the Supreme Court's logic appears later in this Comment, but what is important at this point is that the Hudson Court specifically overruled the Supreme Court's prior decision in United States v. Halper(fn8) In Halper, the Supreme Court departed from precedent and determined the punitive/nonpunitive nature of a statute (whether it inflicts punishment or not) by examining how the statute was applied to the defendant in that case.(fn9) In other words, the Halper court held that the statute was punitive, not because of the purpose or language of the statute itself, but because of how it was specifically applied to the defendant in that case. This approach to the punitive/nonpunitive inquiry is dependent on the facts of a specific case. The facts of each case describe how a statute is being applied, and therefore, whether a statute is punitive. This is an "as applied" double jeopardy approach; as applied to the defendant, is this statute punitive?
Hudson specifically overruled Halper(fn10) by mandating that the punitive/nonpunitive nature of a statute be determined solely by analyzing the statute on its face,(fn11) and not as applied to the defendant.(fn12) In other words, the facts of the specific case are irrelevant to the punitive/nonpunitive inquiry, and instead the analysis focuses on the words and purposes of the statute itself. This is an "on its face" double jeopardy approach.
It is important to reemphasize what these approaches determine. They do not decide whether an act by a governmental agency or actor is punitive or nonpunitive. Rather, the two double jeopardy approaches determine the nature of the statute itself. The analysis turns on whether the statute is punitive, not whether certain actors carrying out the statute are acting punitively. If the latter were the case, a plaintiffs claim would be asserted against an actor for misusing the statute.(fn13) If the former, the claim would ask the court to find that the statute itself is punitive, and thus in violation of the Double Jeopardy Clause when applied to a defendant who has already been punished. It is the punitive or nonpunitive nature of a statute that both the as applied and on its face approaches determine.
Though the Court in Hudson attempted to settle the question regarding which of the two approaches to take, controversy remains, which leads us back to Andre Young. In 1995, Young petitioned the United States District Court for the Western District of Washington for a writ of habeas corpus.(fn14) His case has subsequently been heard by the Ninth Circuit twice,(fn15) and in a recent decision, the Ninth Circuit held that, for Double Jeopardy and Ex Post Facto purposes, an examination of "the conditions of Young's confinement" would determine the punitive/nonpunitive nature of the Washington State Sexually Violent Predator Statute.(fn16) The examination of the conditions of confinement are an expedition into the specific facts of the case, and thus the as applied approach, extinguished by Hudson, has been rekindled by the Ninth Circuit in the Young decision.
Though rekindled, the as applied fire did not spread. Soon after the Young decision was announced, the Washington State Supreme Court considered the same sexual predator law that was addressed by the Ninth Circuit in Young. In both In re Detention of Turay,(fn17) and In re Detention of Campbell,(fn18) sexual predators who were involuntarily committed brought personal restraint petitions (the Washington equivalent of a writ of habeas corpus) to the Washington State Supreme Court, claiming the Washington State Sexually Violent Predator Statute violated their individual double jeopardy rights.(fn19) Thus, the Washington State Supreme Court was faced with the same question the Ninth Circuit faced in Young: is the statute punitive or nonpunitive? The Washington State Supreme Court did not follow the Young court's departure from Hudson. Instead, the Turay and Campbell courts insisted that the on its face approach is the proper way to determine the punitive/nonpunitive nature of a statute, and thus determine if the statute violates the Double Jeopardy Clause.(fn20) The Turay court (on which Campbell relied for its analysis(fn21)) noted the Young court's decision to use an as applied approach, but expressly declined to follow the Ninth Circuit on this issue.(fn22)
Campbell and Turay's refusal to follow Young created a conflict between the Washington State Supreme Court and the Ninth Circuit. With this conflict looming, the United States Supreme Court granted certiorari to Washington State's appeal of the Young decision.(fn23) The case will be heard in the 2000-2001 term, and it presents a prime opportunity for the United States Supreme Court to specifically articulate why an as applied approach is impermissible.
This Comment will argue that an as applied approach allows the executive branch, whether at the state or federal level, to encroach into the legislative realm by rendering a statute unconstitutional as a result of the way the statute is administered. An as applied approach allows an otherwise constitutional statute to be robbed of its constitutionality solely by the dictates of the executive branch. This kind of as applied veto violates the separation of powers principles that underpin the federal, and many state, constitutions. In other words, an as applied approach allows the executive branch to undermine the constitutionality of a law by administering it in an unconstitutional way. Instead of holding the executive branch responsible for its actions, an as applied approach shifts the blame to the statute itself and holds that the statute is unconstitutionally punitive. Thus, an as applied approach extends the executive power to invalidate laws beyond its normal veto power. The United States Supreme Court should therefore use Young to reject as applied approaches in the double jeopardy context.
Reaching this conclusion, however, will require several analytical steps. Section II of this Comment will begin by examining the history of the as applied and on its face double jeopardy approaches during the last 20 years. After a close examination of the decisions in Halper and Hudson in sections II.B and II.C, this Comment will explain why the holding of Hudson, though correct in its result, was not based on sound reasoning. In section II.D, this Comment will examine the Young decision and its departure from the mandates of Hudson. With the Ninth Circuit's holding in Young in direct conflict with the Washington State Supreme Court's holdings in Cambpell and Turay, section III will argue that the United States Supreme Court should overturn Young on separation of powers grounds. Finally, section III will also address the differences between an as applied challenge in the double jeopardy context and an as applied challenge in other constitutional contexts.
II. What Is Punishment for Double Jeopardy Purposes?- Recent History
A. Pre Halper Formulations
The Double Jeopardy Clause states: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."(fn24) The United States Supreme Court has held that this clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.(fn25) In the first two instances, it is assumed that the "prosecution" in a criminal context is the pursuit of a criminal...
