Term Paper: Double Jeopardy and Legislative Limitations

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[. . .] Some tests, such as the "essence of offense" test, place limits on the legislature's ability to define a single criminal act as more than one crime, while other tests, such as the "same statutory elements" test, allow the legislature to authorize as many criminal trials for the same misconduct as creative draftsmanship will permit. Similarly, the Court has shifted back and forth on the question of what limits the Double Jeopardy Clause places on the legislature's ability to determine when a jeopardy is "second" (DiBianco, 140). For example, while the Court has absolutely forbidden prosecutorial appeals of acquittals, it has allowed the legislature to authorize prosecutorial appeals of sentences, reasoning that (as mentioned earlier) there could be no second punishment where the statutorily authorized appeal prevented a defendant from forming a legitimate expectation that the original sentence was "final." Permitting defendants free appeal while handicapping prosecutorial appeal is asymmetrical. Asymmetrical appeal deviates from the adversarial system's archetype. In a criminal justice system in which accuracy is the primary goal, barring some other asymmetry, appeals of acquittals and convictions should be roughly equal. Because they are unbalanced, asymmetrical appeals are less reliable determinations of culpability. For example, when courts abandoned the mutuality doctrine in civil actions, inaccurate determinations became more likely. The asymmetrical apportionment of the capacity to appeal skews the likelihood of success in the criminal adjudication process in favor of the defendant (Algona, 1131).

The argument that Double Jeopardy limits congressional ability to create new and different punishments and crimes is a substantial one. If we interpret this limit then Congress is able to define and create crimes, authorize punishments, and put these into law only if the result of those laws does not allow for multiple punishments of the same crime. This interpretation is reinforced by the very structure of the court system itself - when a person is tried for murder, it is either in Federal or Local courts, under the punishment guidelines unique to each, but never in combination. A person convicted of murder, such as Timothy McVeigh, would not be tried at the city, county, state, and Federal levels all at the same time and receives individual punishments from each jurisdiction.

This is because jurisdictional law enforces that limit. Just as those limits are enforced, no law, then, should be enacted that allows for multiple layers of law to punish the same person more than once. The problem, however, is that the language of the Double Jeopardy Clause does not actually guide us in either direction in this argument. If the legislature gives authorization to a fine and a jail term for the exact same offense, is the court authorized to impose both, or is it a choice that is made at the discretion of the court? If the court does impose both, does that not imply a multiple punishment for the same crime?

Sentencing theory, then, is at the crux of this problem. Clearly, there is no hard and fast rule here. Some might argue the impossibility of determining how to determine the units of a punishment so as to make all things equal. For example, most punishments of jail time are meted out in terms of months or years, thereby making months and years individual units of punishment. So, certain crimes come with the possibility of imposing a range of units of punishment. Our legislative history can provide no help here as what is considered to be a crime and subsequent punishments are constantly shifting. The legislative branch has the sole responsibility of determining what is the correct punishment to give out for a particular crime. The courts simply carry out decisions and inflict punishments as per the legislated limits of the crime.

Determining the appropriate amount of punishment that is applied to an offense is difficult and should be left up to the legislative branch. But, there is the problem of different descriptions that have an effect upon Double Jeopardy decision. A common example of the different description problem arises in homicide. Are the various forms of murder and manslaughter the same offenses for double jeopardy purposes? The courts have generally answered in the affirmative. Though differently named and defined, homicide offenses count as the same offense for double jeopardy. Thus, a defendant may be convicted of the first-degree murder of an individual or second-degree murder of that individual, but not both. The interesting question is why (Pillsbury, 54). The Fifth Amendment does not prohibit a quantity of punishments imposed during a single criminal trial on a single criminal offense. Instead, it states that no person shall be "Subject for the same offense to be put twice in jeopardy of life or limb." Legislatively, the Double Jeopardy clause does not need to limit legislation on multiple punishments, because the Eighth Amendment's clauses on Excessive Fines and Cruel and Unusual Punishment does. In effect, these other clauses enact the limits that prevent multiple punishments on the same crime from being excessive. Therefore, if legislative decisions have allowed for a court to impose both a fine and jail time for the same crime, then the law itself is constitutional and thus the punishment does not violate the Double Jeopardy clause (the logic of this is simple, punishments are not single faceted, they never are, because they have effects upon the punishee's life. Therefore, a single facet punishment or a multi-faceted punishment only results in the process of creating a whole-punishment.

What has been demonstrated is that Double Jeopardy as it applies in court prevents the Judicial and Executive branches of government from prosecuting a person more than once for the same crime and that while it does not spell out exactly that the Legislative branch cannot impose multiple punishments, the Eighth Amendment does.

Double Jeopardy protects people from vindictive and unjust prosecution systems that, once defeated, would like to try the person again.

Once found guilty or not guilty of a crime, the issue is closed, for all parties.

Works Referenced

Algona, Forrest G. "Double Jeopardy, Acquittal Appeals, and the Law-Fact Distinction." Cornell Law Review. July, 2001. v86. i5. p1131.

DiBianco, Gary. "Truly Constitutional? The American Double Jeopardy Clause and its Australian Analogues." American Criminal Law Review. Fall, 1995. v33. n1. p123(40).

Chenoweth (a), P.R. "Criminal Practice - Appeals -- Double Jeopardy - Prosecutors" New Jersey Law Journal. Dec 11, 2000. v162. i11. p84.

Chenoweth (b), P.R. "Criminal Practice - Appeals - Double Jeopardy - Drunk Driving - Search and Seizure." New Jersey Law Journal. Nov 4, 2002. v170. i5. p70(1).

Kappeler, Amy J. "Changing the Tide of Double Jeopardy in the Context of the Continuing Criminal Enterprise." Journal of Criminal Law and Criminology. Spr, 1997. v87. n3. p967(22).

Limbaugh, Stephen N. Jr. "The Case of Ex-Parte Lange." American Criminal Law Review. Wntr, 1999. v36. i1. p53.

Pillsbury, Samuel H. "Double Jeopardy: The History, The Law."… [END OF PREVIEW]

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