07 May 2014

Back to Double Jeopardy:
Charge or Punishment?

A couple weeks back, on a prior post about double jeopardy, a commenter took exception with Garrett v. United States, 471 U.S. 773 (1985). At the time, I promised to try to examine this more closely in a subsequent post. This happens to be a subsequent post.

Let's start by laying out what the double jeopardy clauses are in the federal and Virginia constitutions:
"Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const., 5th Amendment.  

"He shall not . . . be put twice in jeopardy for the same offense." Va. Const. Article I Section 8.
The key to both of these is the term "same offense."  So, let's look at Webster's definition of offense:
5.     a :  a breach of a moral or social code
        b :  an infraction of law
This  is further clarified if we look to specifically legal definitions:
A crime or punishable violation of law of any type or magnitude. law.com
A crime or misdemeanor; a breach of the criminal laws. The Law Dictionary 
It seems fairly clear that the constitutions both meant for a particular crime, represented by a particular set of elements, to be punished only once - no matter how many times the legislatures, courts, and prosecutors desire to punish the offender.

So, how did we go from this to the point that the Virginia Court of Appeals could declare in Tharrington v. Commonwealth that it is perfectly acceptable to convict a defendant of larceny with intent to sell and the fully included lesser offense of larceny and punish the defendant for both?

I think it all starts with predicate offenses as applied in racketeering type offenses. An older example of this is Albrecht v. U.S., 273 U.S. 1 (1927):
There is a claim of violation of the Fifth Amendment by the imposition of double punishment. This contention rests upon the following facts. Of the nine counts in the information, four charged illegal possession of liquor, four illegal sale, and one maintaining a common nuisance. The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offenses. One may obviously possess without selling, and one may sell and cause to be delivered a thing of which he has never had possession, or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offense. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit, and punishing also the completed transaction.
The rationale here is solid up to the last dictum sentence which creates a much broader rule than the one the case actually followed.  The rule the case followed seems to be that if the completed transaction (sale) could be done without an actualized potential act (possession) then both the actualized potential act and the completed transaction can be charged as crimes. This applies perfectly in almost any racketeering type offense. Almost all of them them use actualized potential acts (murder, drug sales, human trafficking) to prove a completed scheme (usually the running of a big or small criminal organization). While each actualized potential act is not in and of itself required to prove the scheme, discrete acts in the same or similar category are. Therefore, the both the actualized potential acts and the completed scheme can be prosecuted.

Garrett is a perfect example of this. Garrett had previously been convicted of drug trafficking and in a subsequent prosecution that previous prosecution was used as proof of a continuing criminal enterprise. The prior conviction was an actualized potential act. It was not a lesser included offense because Garrett could have completed any number of potential acts to fulfill the requirements of the continuing criminal enterprise statute. Therefore, there was no double jeopardy issue.

Unfortunately, the Court in Garrett latched onto that dictum in Albrecht and expanded it even further.
Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature—in this case Congress—intended that each violation be a separate offense. If Congress intended that there be only one offense—that is, a defendant could be convicted under either statutory provision for a single act, but not under both—there would be no statutory authorization for a subsequent prosecution after conviction of one of the two provisions, and that would end the double jeopardy analysis.
. . . 
Insofar as the question is one of legislative intent, the Blockburger presumption must of course yield to a plainly expressed contrary view on the part of Congress.
That has no logical mooring in the 5th Amendment and makes no sense in interpreting whether a prosecution is in violation of double jeopardy. Under that language, the only time double jeopardy adheres to any offense is if the legislature specifically intends it too. To be fair, I don't think it's actually been applied that way; I think it is mostly applied as "If the legislature says a person can be prosecuted for two crimes with exactly the same elements (for a single act) then they can."

And thus we come to Tharrington. Tharrington was convicted of grand larceny and grand larceny with intent to sell. This would never pass the Blockburger test because they both have exactly the same elements until grand larceny with intent to sell adds the intent element. In other words, grand larceny is entirely a lesser included offense of grand larceny with intent to sell and anyone prosecuted and convicted of both will be twice punished for the exact same behavior. 

Tharrington lifts the rule laid out in Lane v. Commonwealth, 51 VaApp 565 (2008):
When considering multiple punishments for a single transaction, the controlling factor is legislative intent. The legislature may determine the appropriate unit of prosecution and set the penalty for separate violations. Therefore, although multiple offenses may be the same, an accused may be subjected to legislatively authorized cumulative punishments. It is judicial punishment in excess of legislative intent which offends the double jeopardy clause.
Although the Virginia Court of Appeals doesn't refer to the US Supreme Court, that's a distillation of the reasoning in Garrett.  In fact, it sets out the Garrett rule about as simply as it could be set out. Using this distillation of the Garrett rule, the Virginia Court of Appeals finds that the grand larceny with intent to sell statute has language indicating that the Virginia General Assembly intends for anyone who falls afoul of that particular statute to be punished twice for the same offense and upholds the dual convictions. As ridiculous as I think that result is, I can't blame the Virginia Court of Appeals; it was just following bad precedent set out by the US Supreme Court.

Having examined all that, here's the current state of double jeopardy protections. Perhaps uniquely under constitutional standards, legislatures determine whether prosecution under any two or more statutes violate double jeopardy protections - not the courts. Consequently, the "same offense" language has been interpreted out of this protection. In its place, the courts have substituted a maximum punishment standard. If the legislature passes 17 statutes which all punish a person for exactly the same act and states in each statute that it can be prosecuted even if it has the same elements as another offense then the person can be prosecuted and convicted of all 17 statutes despite the fact that their elements are all exactly the same.

Only if the legislature has failed to take a stance do the courts actually apply the "same offense" language from the double jeopardy clauses and try to determine whether the prosecuted offenses are duplicative in violation of double jeopardy protections.

The only conceptual framework which I can come up with in support of this is to not view the 17 criminal charges as 17 offenses, but as one offense and 17 aggregate punishment statutes. As much of a stretch as that model is, it has to be the one the courts are using, otherwise the deference given to the legislatures' decisions to make exactly overlapping crimes prosecutable against a single person for a single incident is entirely indefensible.

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