31 March 2014

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.


JacobBe5 said...

In effect then doesn't Garret pull the teeth from protections of double jeopardy? "nor be put twice in jeopardy for the same offense." unless the legislature really wants to.
From the examples you gave of abduction charges it seems some prosecutors, and compliant courts, are doing their level best to completely avoid the spirit of the law in hopes of stacking charges. I understand it is disfavored, but I also understand the reason why it is disfavored. I propose it is so disfavored because prosecutors have a vested interest in seeing a person convicted, and have already convinced themselves of a person's guilt. A fairly common tactic has become to stack as many charges as possible in order to get a plea bargain or hedge their bets against a jury acquitting the person entirely. It also seems to have a few roots in the desire of politicians to appear tough on crime by pushing for harsher and longer sentences.

But thanks for the description of how it actually works.

Ken Lammers said...

Whether Garrett completely eliminates double jeopardy depends on point of view, I'll try to address this in a post soon. I tend to agree with you, but the courts disagree with us both.

The goal here is to describe how things work. I can't pass statutes or constitutional amendments. All I can do is try to explain their actual implementation.