They can convict me of both charges?!? Blockburger and Garrett

Question: Can I be convicted of crime X and crime Y for the same act?

I get asked this question often. The only things which vary are the crimes represented by X and Y. The answer is almost invariably yes. Unless one charge is a a lesser included of another or there is a statutory exception, if the facts prove the elements of both crimes you can be convicted of both.

Any analysis of this starts with the double jeopardy clause under the 5th Amendment of the U.S. Constitution: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Article I Section 8 (Criminal Prosecutions) of the Virginia Constitution has similar language, "nor be put twice in jeopardy for the same offense."  However it isn't particularly relevant since "the protections against double jeopardy afforded under the United States Constitution are identical with those embodied in Article I, section 8 of Virginia's Constitution." Bennefield v. Commonwealth, 21 VaApp 729 (1996).

The seminal case in this area is Blockburger v. United States, 284 U.S. 299 (1932). Under Blockburger, the test for whether a person can be charged with more than one crime has nothing to do with the fact that they rise from the exact same set of facts. Instead the test "is whether each provision requires proof of a fact which the other does not." In more modern parlance we would state this as "each crime must have one element that the other does not."

An example of this under Virginia law could be grand larceny and larceny third or subsequent. Both require a larceny, but each has an element the other does not. Grand larceny requires that the theft be of an item worth more than $200. Larceny third or subsequent has the obvious requirement that it be a third or subsequent theft.  Thus, if someone tries to steal a TV from GiantMart he can be charged with both grand larceny (if its value >= $200) and larceny third or subsequent (if he has twice previously been convicted of larcenous acts). This is true despite the fact that at core they both have the same crime (larceny). In Commonwealth v. Hudgins, 269 Va. 602 (2005), the Supreme Court of Virginia ruled that after a defendant had been acquitted of robbery he could thereafter be convicted of grand larceny from a person because robbery requires violence or intimidation while grand larceny from a person requires a theft >= $5.  In so ruling, the Virginia High Court overruled a Court of Appeals opinion which stated that the two crimes could not be charged for the same act because both crimes had petit larceny as a lesser included offense.

However, there is one significant exception to Blockburger. If the legislature has shown an intent to allow prosecution under two statutes despite the fact that one is included in another then both can be prosecuted. The case most often sited for this proposition seems to be Garrett v. United States, 471 U.S. 773 (1985). Garrett was a case in which the defendant tried to use conviction on a predicate offense as a shield against a continuing criminal enterprise charge (a RICO analogue for drug dealers) that required predicate convictions as an element. Instead of making a common sense finding that a predicate crime is not a lesser included offense, the opinion wanders about and stumbles over the finish line. In the process, it specifically excludes crimes wherein the entire time the crime is being committed both the greater and lesser included crimes are being committed. However, it does at one point state specifically "the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history."  In other words, "Where the legislature has authorized cumulative punishments, regardless of whether the offenses are the 'same,' the prosecutor may seek and the trial court may impose cumulative punishments in a single trial." Jordan v. Commonwealth, 2 VaApp 520 (1986).

The case in Virginia which seems to cause this to be raised most often is Brown v. Commonwealth, 230 Va. 310 (1985). In this case, the Virginia Supreme Court ruled that the Virginia General Assembly did not intend abduction to be charged in conjunction with other charges that necessarily require some restraint of the victim such as rape and robbery. As you might imagine, this is a strongly disfavored opinion and courts regularly work around it if the victim is moved half an inch unnecessarily or detained for half a second longer than the absolute bare minimum that a crime requires. A more recent application of this was in Tharrington v. Commonwealth, 58 VaApp 704 (2011), in which the Virginia Court of Appeals held that grand larceny and larceny with an intent to sell could both be prosecuted under the same set of facts because the Virginia General Assembly included the words "A violation of this section constitutes a separate and distinct offense" in the larceny with intent to sell statute. Va. Code Sec. 18.2-108.01.

Yes, Virginia, You Can Steal From Your Spouse

Question: Can you steal from your spouse if you are still married?

This question comes up over and over and over again. Although it usually rises in the waning of a marriage as people are fighting over who gets the stuffed penguin they were given as a wedding gift, it also arises surprisingly often at an earlier stage of the marriage (thereafter often leading to the waning days of the marriage). So, I thought I'd try to clarify the issue.

Let's start with the common law that we took from England as we broke free. In common law, it would seem that the woman maintained her ownership of that realty she came into the marriage owning. Otherwise, the right of curtesy makes no sense. Under that right, upon the wife's death the husband took a life estate in property his wife brought into the marriage, but only if there were children born of the marriage.  I'll not delve further into that topic because it is exceedingly rare that real property is the subject of a larceny (hard to carry it away).

As for real property, let's go where every good American jurist goes to get our common law, Blackstone (Book 1 Chapter 15):

By marriage, the husband and wife are one person in law : that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband : under whose wing, protection, and cover, she performs every thing [. . .] Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. [. . . ] If the wife be indebted before marriage, the husband is bound afterwards to pay the debt ; for he has adopted her and her circumstances together.

Nothing too terribly surprising there. Back in the day, the husband had almost all the rights in a marriage and he took possession of every item of personalty his wife brought into the marriage or obtained thereafter. As "one person in law" the requirement that one take the property "of another" would seem to have made it impossible for married people to steal from each other.

However, Virginia changed all that a long time ago:

§ 55-35.  How married women may acquire and dispose of property 
A married woman shall have the right to acquire, hold, use, control and dispose of property as if she were unmarried and such power of use, control and disposition shall apply to all property of a married woman which has been acquired by her since April 4, 1877, or shall be hereafter acquired. Her husband's marital rights shall not entitle him to the possession or use, or to the rents, issues and profits, of such real estate during the coverture; nor shall the property of the wife be subject to the debts or liabilities of the husband.

So, by statutory creation, women and men while married have separate property rights. This all came about as part of the Married Woman's Act of 1876-77 and means women in Virginia have had a statutory right to own personal property while married since at least the passage of the statute. Of course, the converse of that is the fact that men now have separate personal property as well. The "one person in law" barrier was gone and spouses could no longer steal from each other with impunity.

Probably the earliest criminal case in which this may at least indirectly apply is Ambrose v. Commonwealth, 129 Va. 763 (1921). Ambrose was given a car to sell by the wife without the husband/owner's knowledge or permission. Without "one person in law", Ambrose was convicted of larceny. However, Ambrose is not as clean as one might wish. The Court does not mention § 55-35 and bases its reasoning on the fact that Ambrose and wife were eloping. Under the common law that opened up certain rights for the husband. Still, it's an early criminal case wherein the husband and wife clearly did not own the property jointly. If they did the fact that the wife gave it to Ambrose would have protected him from a larceny conviction because it's not larceny if an owner gives it to you willingly.

The case most often cited in this area is Stewart v. Commonwealth, 219 Va. 887 (1979). Stewart took his wife's car before a divorce was granted.  He tried to rely on the common law "one person in law" barrier and the Court shot him down relying on § 55-35. It concluded:

Marriage no longer gives a husband any legal interest in his wife's tangible personal property.. . . The purpose of the Married Woman's Act would be frustrated if a husband could steal with impunity from his wife, and we hold, therefore, that he may be prosecuted as any other thief for the larceny of her property. 

That's about as black and white as it can get. Still, there is confusion. Mostly this comes because everyone thinks of property owned during marriage as "marital property" subject to distribution during a divorce.  This of course, is a civil concept and it is not shared in criminal law. This has been addressed directly in McDuffie v. Commonwealth, 49 Va. App. 170 (2006).

In McDuffie the defendant took a car solely titled to and paid for by his wife without permission and wrecked it. He argued that he could neither be convicted of destroying another's vehicle nor of unauthorized use of another's vehicle. He claimed he had an ownership interest in the vehicle under the equitable distribution provisions of § 20-107.3, a statute laying out how property is distributed in a divorce proceeding. The Court rejects this argument stating: 

Any interest a spouse may have in marital property is an inchoate right that becomes vested only upon entry of a decree of equitable distribution in a divorce proceeding. Because no divorce proceeding was pending and, thus, no decree of equitable distribution had been entered with respect to the relative property interests of appellant and wife, appellant had only an inchoate and unvested interest, if any, in wife's automobile.

That draws the line when any personal property might become marital pretty clearly. Unless there's a decree of equitable distribution giving one spouse an interest in the property of another it does not exist and criminal charges involving the abuse or larceny of the property of another can go forward.

These cases can be everything from burglaries with the house cleaned out by one spouse all the way down to extremely minor thefts such as taking two cassette tapes. Ward v. Commonwealth, APR03, VaApp No. 2799-01-3 (U). Generally, they seem to involve a lot of car thefts. I think this is because the magistrates do not issue many low level warrants in this area, either from confusion over the difference between civil and criminal sides or just because they don't want to encourage every person getting a divorce to run to their office and charge their soon to be ex-spouse with stealing a broom, or hat, or dish towel.

Virginia Deaths by Drugs

I realized that I hadn't looked at the last Medical Examiner's report on drug deaths in Virginia (2011), so I thought I'd do a quick breakdown.

First, the municipalities with the most per capita deaths by drugs.

Now the municipalities with the most per capita deaths by legal drugs.

Now the municipalities with the most per capita deaths by illegal drugs.

DEATHS PER 100,000 BY DRUGS

	Overall		Legal Drugs		Illegal Drugs
1	Dickenson 57.2		Dickenson 44.5		Madison 15.2
2	Tazwell 49.2		Russell 38.3		Danville 9.3
3	Russell 48.7		Tazwell 35.8		Lancaster 8.9
4	Bland 44.0		Bland 29.3		Essex 8.9
5	Buchanan 38.2		Page 29.2		Richmond City 8.3

Tell me again how legalizing and regulating drugs will make things so much better?

And, before anyone starts arguing that this is all about statistical anomalies because of smaller populations, remember that it has been going on for quite a while now (posts from 2010 and 2011 A & B).

This may actually change in the future. Synthetic drugs, such as alpha-PVP (gravel), seem to be cutting into the pills' market share.

Shaming and the "Meh" Factor

Every few years the press discovers  that somewhere in America judges are "shaming" defendants rather than just acting as automatons who hand out the usual sentence:

Though the practice was abandoned in the 1800s, over the last decade judges have been reviving shame-based sentencing in pockets across the country, doling out alternative punishments designed to humiliate the criminal and send a stern message to the public.  Chicago Tribune 2000.

Lately it hasn't been all that unusual either. The Gementera sentence -- taken last month to the Supreme Court -- is one of a growing number of "creative punishments" being handed down across the country by judges who want to use shame or humiliation to deter people from committing further offenses.  Washington Post 2005.

But what's the alternative? In recent years, a number of judges have ordered what amounts to public shaming instead of prison time. Punishments have included shoveling manure, being made to sleep in a dog kennel, or standing on a busy street corner wearing a sign to tell the public of the crime you committed.  NPR 2013.

The news articles almost all follow the same pattern.  They list a series of shaming punishments handed down by various judges.  Then they state how the low born, common hoi polloi love these kinds of punishments.  Finally, a law professor is quoted bemoaning these punishments as inconsistent with normal punishments and therefore violations of the 8th Amendment's prohibition against cruel and unusual punishment.  If they are ever so PC and progressive, sometimes you even hear the words "human rights violations."

Of course, these arguments are spurious.  They make for interesting copy in a slow news cycle and give some few law professors  an issue that they can write papers about and get media attention from, but there's nothing more cruel in these punishments than there is in sending someone to jail.

In theory, sending someone to jail is a shaming punishment. We're all taught five purposes for imprisonment: (1) rehabilitation, (2) disability, (3) teaching the offender not to re-offend, (4) deterring others from offending, and (5) punishment. It's arguable that among these only disability does not involve shaming. The others involve a mixture of actual harm - loss of income, separation from family, inability to go to the local high school football game - with the shame involved from being sent to jail as a sign of societal disapproval. In rehabilitation, teaching an offender not to re-offend, and deterrence of others the shaming is motivational. In punishment only do we find shaming for shaming sake.

Of course, once anything becomes too familiar it loses its shame factor and this has happened with imprisonment.  LawProf does not even consider the shame angle in sending someone to jail because it is the regular way that someone is punished.  And anyone who spends time practicing criminal law quickly comes to realize that for a significant portion of the defendants going to jail is inconvenient or painful (especially when it forces them to go cold turkey), but being locked in jail doesn't shame them any more than they are ashamed to sit at home and watch reality TV night after night.

The same thing would happen if the judge ordered everyone who shoplifted to stand outside the door of the local MegaMart with a placard saying "I'm a thief." At first people would pay a lot of attention to the twenty guys standing outside and most of the offenders would be mortified.  Give it a year or two (probably much sooner) and the public would be ignoring the offenders and most of the offenders would be treating it like an opportunity to stand around and talk to like souls.

So, while shaming may be, and probably is, an excellent motivator for offenders, it must be unusually applied in order to be effective.  Using shaming against someone who has been a repeat offender for the last 25 years is not likely to be effective.  Additionally, using a shaming technique so often that it becomes the expected norm will blunt its effectiveness.  When might shaming work?  First time offenders would seem to be those against whom shaming would have the most affect.  A guy in high school shoplifts? Make him stand in a pink jumpsuit and paper party hat outside the local MegaMart from 10 - 6 Saturday and Sunday handing out pamphlets about how shoplifting harms the community. Will it guarantee that he won't re-offend? No, because nothing can guarantee that.  However, it is bound to have more affect on him and other potential offenders than hiding him in a detention center for the same weekend would.  And the shaming punishments should not be the same every time.  One time it should be the pink jumpsuit at MegaMart.  Another time it should be sitting on a bench in front of the courthouse with a sign saying "I am a THIEF" from 9-5 on a day court is in session. A third time an offender should be required to write a single page apology for driving under the influence and walk door to door handing it to whomever answers the door. etc. Varying the punishment keeps it from becoming usual and ineffective.

Will people scream bloody murder about these punishments? Of course they will.  And why will they scream bloody murder? Because they will notice the punishments and if a punishment is noticed it must be cruel because it actually affects people. Which, of course, is the point of any punishment - to affect people.  They are uncomfortable with these punishments because they notice them and that uncomfort must mean the punishment is wrong.  Better to just lock people in jail where everyone can forget about them.