12 September 2023

In Virginia You Can Be Punished Twice for Exactly the Same Crime

  . . . but only if the General Assembly says so.

The Virginian Courts Appellate have been rather clear on this:

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.  Tharrington v. Commonwealth, 58 Va.App. 704 (2011).


If the legislature expressly declares its will to inflict multiple punishments on the same conduct, the courts must respect its intent to do so—even if the two statutory offenses fail the Blockburger test. Commonwealth v. Gregg, 295 Va. 293 (2018).

To clean this up a bit, I think what the courts are saying here is that if the General Assembly evinces an intent to impose two punishments for the same crime under two different statutes it has actually shown an intent of one punishment which can be imposed for the crime, but split that one punishment between two statutes. In other words, if (1) snipe hunting is punished under 18.2-3000 (snipe hunting: 5 years) and 18.2-3050 (snipe hunting with a pocket knife: 10 years) and (2) the General Assembly expresses an intent to convict and punish under both at the same time, then (3) the cumulative punishment of the two statutes is actually the punishment which can be imposed (15 years).

So, how does the General Assembly evince this intent? Well, the appellate courts haven't defined a magic formula, but they have approved "a violation of this section constitutes a separate and distinct offense." Tharrington. Also, statutes fairly often uses "felony" instead of "offense." As best I can tell, these are the statutes which have that language:

§ 18.2-23(B) - Conspire to larceny
§ 18.2-46.2 - Doing a predicate act (crime) for a criminal street gang *
§ 18.2-46.10 - Applies this to all terrorist crimes  *
                    (Article 2: 18.2-46.4 thru 46.10) 
§ 18.2-50.3 - Entice person into a house to commit felony
§ 18.2-51.7 - Female genital mutilation *
§ 18.2-53.1 - Use a firearm in a felony
§ 18.2-57.02 - Disarming a law enforcement / correctional officer
§ 18.2-108.01 - Larceny with intent to sell
§ 18.2-152.15 - Criminal encrypting
                    (separate and distinct from predicate criminal activity)
§ 18.2-178.2 - Financial exploitation of a vulnerable adult *
§ 18.2-248.01 - Transporting drugs into Virginia
§ 18.2-308.3 - Use illegal ammunition while committing a crime
§ 18.2-308.4 - Possess Firearm and Drugs
§ 18.2-348.1 - Promoting travel for prostitution
§ 18.2-356.1 - Purchasing or selling minors *
§ 18.2-357.1 - Commercial sex trafficking
§ 18.2-376.1 - Use computer to send obscenities
                    (separate and distinct misdemeanor)
§ 18.2-461.1 - False call for emergency personnel *
§ 18.2-514 - Racketeering
§ 46.2-817 - Eluding a police stop
§ 46.2-341.19 - Use of a commercial vehicle to distribute drugs

In some of these the "separate and distinct" language stands on its own and in others the General Assembly has added and we really mean this language emphasizing the point (the statutes with *).

The interesting question is whether that's the only language that can indicate this intent. The cases don't seem to say so and there is other language in statutes which could indicate the same intent. For instance, in Virginia there are two statutes which I'll call aggravated methamphetamine distribution statutes. The first is part of the normal criminal distribution statute 18.2-248 and the other is a statute applying only to meth, 18.2-248.03. 18.2-248 has a 5-Life punishment for 10g+ pure meth or 20g+ impure meth (5 year mandatory minimum); 18.2-248.03 has a 5-40 year punishment (3 years mandatory minimum) for 28g+ of impure meth. Neither of the statutes have the "separate and distinct" language. However, the language of 18.2-248.03 begins with "Notwithstanding any other provision of law."

A general reading of that statute could be that we don't care what other statutes about illegal drugs say THIS is the statute that determines the punishment for aggravated meth distribution. This is done when there is a generalized crime, but the General Assembly wants to set out a specific punishment for a specific violation within that generalized crime. A quick overview of Virginia's statutes shows this use of "notwithstanding" to go from general to specific as a general pattern throughout the code. The problem here is that there was already a specific crime which had been created two years earlier. 18.2-248.03 was passed in 2008 while the punishment under 18.2-248 had been put in place in 2006. It clearly doesn't follow that this is a diversion from a general crime to a more specific one. 

Thus, we are left to look for guidance from the appellate courts. "Courts construe statutes so as to not render other statutory language superfluous."  Commonwealth v. Jefferson, 60 Va.App. 749 (2012).  As well, "the words chosen by the legislature in drafting a statute derive meaning from both definition and context and, therefore, we divine legislative intent by construing an enactment as a whole, together with companion statutes, if any. Legislative purpose can best be ascertained from the act itself when read in the light of other statutes relating to the same subject matter. The doctrine of pari materia teaches that statutes are not to be considered as isolated fragments of law, but as a whole, or as parts of a great, connected homogenous system, or a simple and complete statutory arrangement.  Department of Motor Vehicles v. Wallace, 29 Va.App. 228 (1999). See also Chauncey Hutter Inc. v. Vec, 50 Va. App. 590 (2007).

With all that in mind, and considering the fact that both these crimes have been on the books for 15 years without change, it seems the General Assembly means and expects them to be read in harmony - not as one superceding the other. The aggravated meth distribution punishment under 18.2-248 still exists, but "notwithstanding" its punishment the defendant is also to be punished for aggravated meth distribution under 18.2-248.03. So, assuming a defendant had 28g+ of meth his actual sentencing range - although split across two statutes - is 10 to Life+40 years with 8 years of that being a mandatory minimum sentence.

Admittedly, I've never seen this done. I'm not sure many prosecutors even think about 18.2-248.03. They're used to dealing with 18.2-248 and individually it carries a stiffer sentence so they default to it and don't try defendants under both statutes because most people, including prosecutors and judges, have a basic understanding of double jeopardy. They're okay with the punishment they're going to get and they don't have to make a nuanced argument (which is always a pain in the derriere).