1. U.S. Const. amend. V. Henceforth, I will use the modern spelling, “offense,” except when quoting early sources.
2. In re Vitale, 375 N.E.2d 87 (Ill. 1978).
3. Illinois v. Vitale, 447 U.S. 410, 419–20 (1980) (noting “substantial” claim of double jeopardy if state follows traffic conviction with homicide prosecution based on same conduct).
4. United States v. Ursery, 518 U.S. 267 (1996).
5. Bartkus v. Illinois, 359 U.S. 121 (1959).
6. Downun v. United States, 372 U.S. 734 (1963).
7. The mistrial doctrine is discussed in detail in chapter 8.
8. See the discussion of Richardson v. United States, 468 U.S. 317 (1984), in chapter 8.
9. Id. at 325–26.
10. Burks v. United States, 437 U.S. 1 (1978), discussed in chapter 1 & chapter 8.
11. The example is Justice Souter’s. United States v. Dixon, 113 S.Ct. 2849, 2883 (1993) (Souter, J., dissenting).
12. Grady v. Corbin, 495 U.S. 508 (1990).
13. United States v. Dixon, 509 U.S. 688 (1993). I discuss Grady and Dixon in more detail in chapter 2.
14. Id. at 713 (Rehnquist, C.J, concurring in part and dissenting in part) (joined by O’Connor & Thomas, JJ.). The difference in the two versions is not important to my point here. For a discussion of the difference, see chapter 5.
15. Id. at 720 (White, J., concurring in the judgment in part and dissenting in part) (joined by Stevens, J., and Souter, J., as to Part I); id. at 741 (Blackmun, J., concurring in the judgment in part and dissenting in part); id. at 743 (Souter, J., concurring in the judgment in part and dissenting in part) (joined by Stevens, J.).
16. George C. Thomas III, An Elegant Theory of Double Jeopardy, 1988 U. Ill. L. Rev. 827.
17. 1 Annals of Congress 753 (statement of Roger Sherman).
1. Benton v. Maryland, 395 U.S. 784, 795 (1969).
2. Note, 65 Yale L.J. 339, 342 n.14 (citing 2 Pollock & Maitland, 470).
3. This is Michael Moore’s modern count of total state and federal crimes. Moore, 4. Double jeopardy applied only to felonies in Blackstone’s day, but today applies much more broadly, as I detail in chapter 4.
4. Distinguishing a criminal from a civil violation is a knotty problem (see chapter 4), but, to keep the argument as simple as possible, I deal here with a violation that is undeniably criminal.
5. Kant, 198.
6. Edmund v. Florida, 458 U.S. 782 (1982) (holding that the Eighth Amendment did not permit imposition of the death penalty on a getaway driver who did not participate in the murders).
7. 459 U.S. 359 (1983).
8. Whalen v. United States, 445 U.S. 684, 701 (1980) (Rehnquist, J., dissenting) (quoting Westen & Drubel, 113).
9. See Montana Department of Revenue v. Kurth Ranch, 511 U.S. 767, 769, n.1 (1994).
10. 432 U.S. 161, 165 (1977). Very few commentators have argued that legislative intent to punish or try twice avoids the double jeopardy problem. The few exceptions include King, Excessive Penalties; Mead; and Thomas, Blameworthy Acts.
11. I plead guilty to the charge of putting the emphasis on successive prosecution theory rather than where (I now see) it belongs: the either/or sentencing decision affecting judges. For my earlier view, see Thomas, Successive Prosecutions.
12. 432 U.S. 161, 166 (1977).
13. Id. at 165 (quoting United States v. Jorn, 400 U.S. 470 (1971) (plurality opinion)).
14. Actually, I do not have to imagine that skeptic. Many of my Rutgers colleagues played the skeptic’s role with a great deal of relish when I presented this theory at a law school colloquium in the fall of 1995. See also McElroy, 399.
15. See, e.g., Olson, 40 (noting that this antipositivism jurisprudence is “alternatively labeled as historicism, usage and custom, and Burkeanism”).
16. Olson, 44.
17. The double jeopardy and criminal law sense of “offense” are, on the argument offered in this book, precisely the same sense.
18. Friedland, 3–4. See also Sigler, 39.
20. See Harmelin v. Michigan, 501 U.S. 957 (1991) (endorsing, at best, an extremely narrow proportionality principle in noncapital cases).
21. The Court’s partial answer is that the death penalty cannot be imposed for any crime that did not itself cause a death. See Coker v. Georgia, 433 U.S. 584 (1977). This approach, of course, is firmly grounded in Kantian (and biblical) principles.
22. Harmelin v. Michigan, 501 U.S. 957 (1991).
23. See Prince v. United States, 352 U.S. 322 (1957) (holding Congress did not intend both penalties to apply).
24. Moore, 339.
25. LaFave & Scott, 605 (noting that the common-law judges had “some help from the legislature” on this task).
26. Comment, 33 Am. Crim. L. Rev. 123, 149. Australia apparently continues to use the Vandercomb rule for measuring the protection offered against successive prosecutions. Id. at 141–42. For a discussion of Vandercomb, see chapter 9.
27. 432 U.S. 197 (1977).
28. 501 U.S. 624 (1991).
29. Id. at 630–31.
30. Id. at 637 (citation omitted).
31. Id. at 637–38.
32. Id. at 638.
33. 467 U.S. 493 (1984).
34. 432 U.S. 161 (1977).
35. Johnson, 467 U.S. at 493.
36. 471 U.S. 773 (1985).
37. The included-offense inquiry is admittedly not as simple as it first appears. While CCE always requires proof of some felonies from a very long list, it does not always require proof of importing marijuana (other felonies will do). These so-called compound-predicate offenses require a decision about how narrowly to read the requirement of “necessarily-included.” But the Court has held that the compound-predicate offense of felony murder is the same offense as the underlying predicate felony. Harris v. Oklahoma, 433 U.S. 682 (1977) (per curiam). I discuss the issue of how best to apply the included-offense test in chapter 6.
38. Id. at 784.
39. See Note, 49 Ohio St. L.J. 773, 811–12 (criticizing this reading).
40. 471 U.S. at 806 (Stevens, J., dissenting). See also Thomas, Successive Prosecutions, 364–69.
41. 471 U.S. at 790.
42. 471 U.S. 773, 788–89.
43. Id. at 804–5 (Stevens, J., dissenting) (joined by Brennan & Marshall, JJ.).
44. 4 Blackstone’s Commentaries *335–36.
45. 1 Britton, 104 & 112.
46. For an excellent analysis of one state’s still-extant “private prosecution” law, see New Jersey Developments, 44 Rutgers L. Rev. 205.
47. 4 Blackstone’s Commentaries *336.
48. Batchelder cites early state cases in his 1883 law review article for the proposition that conviction of a lesser offense bars prosecution of the greater. Batchelder, 738–53. He notes, and disapproves of, a few cases holding to the contrary (most of these cases involve unusual facts or jurisdictional issues). From 1887 to Brown, the line of cases is as follows: In re Nielsen, 131 U.S. 176 (1889) (adultery included within unlawful cohabitation); Grafton v. United States, 206 U.S. 333 (1907) (homicide included within assassination); Prince v. United States, 352 U.S. 322 (1957) (unlawful entry of bank included within bank robbery). See McElroy, 388 (noting “settled” law from Nielsen to 1969, the date of McElroy’s article). The early law review literature confirms the prevalence of the included-offense model of same offense as at least one test to be applied. See, e.g., Note, 45 Harv. L. Rev. 535, 539 (published shortly after Blockburger); Comment, 33 Harv. L. Rev. 110, 111; Note, 11 Ky. L.J. 221, 221; Comment, 40 Yale L.J. 462, 469. Bishop’s Ninth Edition, published in 1923, noted that a jeopardy for the highest or lowest degree of included offenses should bar a second jeopardy. 1 Bishop, 780–82, §§ 1054–57.
49. Amar & Marcus.
50. The omitted exception to former attainder is that an attainted principal can be forced to a second trial to permit the accessories to be convicted, a rule of substantive criminal law that has no relevance today.
51. 4 Blackstone’s Commentaries *336–37.
52. 4 Blackstone’s Commentaries *337.
53. Batchelder, 753. He went on, in point 4, to condemn the exception for crimes that become more serious when the assaulted party dies after the conviction of assault. The Supreme Court later endorsed this exception. Diaz v. United States, 223 U.S. 442 (1912). Otherwise, Batchelder stated rules for same offense that the Supreme Court would recognize today.
54. Sigler, 100.
55. Comment, 45 J. Urban L. 405.
56. 2 Hale, 241–250.
57. For commentary on these cases, see Horack; see also Note, 32 Mich. L. Rev. 512 (1932); Note, 24 Minn. L. Rev. 522 (1940).
58. Comment, 75 Yale L.J. 262, 276.
59. In this context, the critique is devastating. Some states have statutory bars against more than one punishment or trial for the same act. Courts have tended to seek a metaphysical definition of “act,” with no success. See, e.g., Johnson, Reflections on the Neal Doctrine (recounting California courts’ experience); Comment, 32 S. Cal. L. Rev. 50 (same); Note, 56 Minn. L. Rev. 646 (Minnesota experience).
60. Chapter 5 discusses the “rule of lenity” in detail. As the name implies, it is a rule that resolves doubts about the scope of the proscribed act in favor of a lenient construction. If the question is how many violations of the Mann Act occur when a defendant takes two women across a state line at the same time, the answer is that the scope of the proscribed act is crossing the state line (with however many women) unless Congress has made clear its intent that the number of women determine the number of violations. See Bell v. United States, 349 U.S. 81 (1955).
61. See Gore v. United States, 357 U.S. 386 (1958).
62. Whalen v. United States, 445 U.S. 684 (1980).
63. United States v. Scott, 437 U.S. 82 (1978).
64. Rudstein, 620–35. Professor Rudstein rejects the treatise view in favor of a bright line rule that an acquittal is an acquittal, thus saving courts from having to delve into allegations of fraud months or years later. “Given the relatively few cases in which a defendant obtains her acquittal through fraud, the game hardly seems worth the candle.” Id. at 651. For a more detailed discussion of the acquittal-by-fraud issue, see chapter 8.
65. 1 Bishop 747, § 1009.
66. Burks v. United States, 437 U.S. 1 (1978).
67. Ashe v. Swenson, 397 U.S. 436 (1970).
68. Schulhofer, 491.
69. Crist v. Bretz, 437 U.S. 28 (1978).
70. Downum v. United States, 372 U.S. 734 (1963).
71. Richardson v. United States, 468 U.S. 317 (1984).
72. Id. at 323.
73. Id. at 325–26.
74. Witte v. United States, 515 U.S. 389 (1995).
75. The Court simply read its precedents broadly to hold that enhancement “does not constitute punishment for that conduct within the meaning of the Double Jeopardy Clause.” 515 U.S. at 399. Professor Peter Henning would draw a distinction between sentencing guidelines’ “relevant conduct” that “relates to the quality of the first offense” and conduct that is “external to the criminal activity that is the subject of the charges used in sentencing.” Henning, 42. The latter kind of enhancement would require expanding the original charge to include the elements of the external criminal activity and thus would make the first offense include the later one via a lesser-included-offense analysis. On my account, neither enhancement would be a verdict unless Congress meant it to be, and thus double jeopardy would not be a bar to a later trial based on “relevant conduct.” For a commentator who agrees that legislative authorization answers all double jeopardy questions under the sentencing guidelines, see Supreme Court Review, 86 J. Crim. L. & Criminology 1539.
76. See United States v. Watts, 117 S.Ct. 633, 644 (1997) (Kennedy, J., dissenting) (noting that this procedure raises “concerns about undercutting the verdict of acquittal”).
77. United States v. Watts, 117 S.Ct. 633 (1997) (per curiam), relied on the difference in proof required to convict and that required to enhance. Because the government had to prove the relevant conduct beyond a reasonable doubt to convict but only by a preponderance of the evidence to enhance, it was possible that the jury acquittal did not resolve those facts in the defendant’s favor—the jury might have found a preponderance but less than beyond a reasonable doubt. While that is correct, it misses the larger point that sentencing is not a verdict.
78. Tateo v. United States, 377 U.S. 463 (1964); Ball v. United States, 163 U.S. 662 (1896).
79. North Carolina v. Pearce, 395 U.S. 711 (1969).
80. Id. at 721.
81. Pearce created a due process right in some circumstances not to be sentenced to a longer term following appeal and reconviction. See also Alabama v. Smith, 490 U.S. 794 (1989).
82. Ricketts v. Adamson, 483 U.S. 1 (1987).
83. United States v. Halper, 490 U.S. 435 (1989).
84. Id.
85. Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767 (1994).
86. See Hudson v. United States, 118 S.Ct. 488 (1997).
88. Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820).
89. Cassell, 708–15.
90. 432 U.S. 161 (1977).
91. Id. at 165.
92. David Schuman is less charitable, commenting on the “incoherence, confusion, and intellectual dishonesty” of the Court’s search and seizure jurisprudence. Schuman, 591.
93. Cohen, 833.
94. Kafka, In the Penal Colony, 224.
95. Peller, 1174. There have been many skeptical responses to this robust claim of indeterminacy. See, e.g., Hegland; Posner; Solum; Thomas, Gravitational Effect.
96. See, e.g., Kelman; Williams.
97. Fiss, 741. Fiss did not subscribe to the account but was merely summarizing it.
98. For an analysis of Justice O’Connor’s penchant for balancing tests in the double jeopardy area, see Thomas, Elegant Theory, 832–34.
99. Posner, 862.
100. This would qualify as an “exigent-circumstance” exception to the general requirement that police must have a warrant to search a house. See Warden v. Hayden, 387 U.S. 294 (1967) (by implication).
101. 434 U.S. 497 (1978).
102. Ronald Dworkin, Law’s Empire.
1. See, e.g., 1 Select Pleas of the Crown 33 & 79–80.
2. Ashe v. Swenson, 397 U.S. 436, 447 (1970). Ashe is not a paradigm double jeopardy case because the two trials did not involve the same robbery. Six men were robbed at the same time, and each trial charged robbery of a different victim. Technically, the second trial was thus not for the same offense, but the Court held that the state was estopped from proceeding because the first verdict necessarily meant that the defendant was not one of the robbers. See chapter 7. My point for the present discussion is that the prosecutor in this case saw nothing wrong with asking a second jury to reexamine the crucial fact already found in the defendant’s favor. To file a second charge for the exact same offense after an acquittal is no more invasive of the repose and finality inherent in a double jeopardy protection. Prosecutors do not violate the paradigm application of double jeopardy, however, because the double jeopardy rule is clear on that set of facts.
3. See Ashcraft v. Tennessee, 322 U.S. 143 (1944) (holding a confession produced after thirty-six hours of relentless question to be involuntary and thus a violation of due process).
4. See United States v. Jenkins, 420 U.S. 358 (1975), overruled by United States v. Scott, 437 U.S. 82 (1978), discussed chapter 2.
5. See Amar & Marcus.
6. 355 U.S. 184, 187–88 (1957).
8. See United States v. Scott, 437 U.S. 82, 100–1 (1978); Illinois v. Somerville, 410 U.S. 458, 466 (1973); United States v. Jorn, 400 U.S. 470, 484 (1971); Wade v. Hunter, 336 U.S. 684, 689 (1949).
9. Schulhofer, Jeopardy and Mistrials.
10. Id. at 473.
11. Id. at 514–19.
13. Compare Model Penal Code § 1.07 (1) & (2). The text oversimplifies these provisions, but the technical nuances are not important for my point, which is that the MPC provides a greater limitation on trials than on convictions. Because I cite Bishop when he agrees with me, I should note that, on this point, Bishop seems to agree with the two-tier approach, though his statement of the rule is less than clear. 1 Bishop 785, § 1060.
14. Sigler, 97–98.
15. Model Penal Code §§ 1.07–1.09.
16. Moore, 353.
17. 131 U.S. 176 (1889).
18. I made this argument in Thomas, Successive Prosecutions.
19. 432 U.S. 161 (1977).
20. Brown v. Ohio, 432 U.S. 161, 166–67 n.6 (1977).
21. Id. at 168 (quoting Nielsen, 131 U.S. at 188.)
22. Id. at 166–67 n.6.
23. Illinois v. Vitale, 447 U.S. 410 (1980). For an early discussion of Vitale, see Thomas, RICO Prosecutions, 1389–1404.
24. 495 U.S. 508 (1990).
25. Anne Bowen Poulin observes that Grady “appears to adopt precisely the ‘Vitale two-tiered test’ advocated by Professor Thomas.” Poulin, Muddy Waters, 903–4, quoting Thomas, Successive Prosecutions, at 382. This is now somewhat embarrassing because, as the rest of the chapter makes plain, I no longer believe that the two-tier test is a plausible interpretation of the Double Jeopardy Clause.
26. I simplify Grady in the text. The Court actually held that convictions for drunk driving and failure to keep to the right of the median barred a later trial for reckless manslaughter, criminally negligent homicide, and third-degree reckless assault. For a more detailed examination, and critique, of Grady, see Thomas, Modest Proposal.
27. Poulin, Muddy Waters. Another defense is to draw on dicta in Brown v. Ohio and other cases. See Note, 79 Ky. L.J. 847. Indeed, I used this method to predict Grady. Thomas, Successive Prosecutions.
28. Poulin, Muddy Waters at 910–14.
29. Id. at 914.
30. I should be both fair and candid. I once defended Grady by drawing an equivalence between “offense” and culpability proved by conduct. See Thomas, Modest Proposal. What I failed to see then was that culpability is more than the conduct used to prove the offense; it must begin and end with the offense elements themselves. So while I was correct to draw an equivalence between offense and culpability, I now believe the further reliance on conduct as showing culpability was mistaken.
31. Friedland, 161.
32. See Thomas, Successive Prosecutions, 332 n.52 (collecting authorities). For an excellent discussion and comparison of the mandatory joinder approaches taken by the states, see Vestal & Gilbert, 19–22.
33. Friedland draws the same distinction in English law between offense and transaction. Friedland, 93 (concluding that autrefois convict, autrefois acquit, and issue estoppel should be narrowly construed, with the “rule against unreasonably splitting a case [to] be the main barrier against unwarranted harassment of the accused”).
34. 123 U.S. 372 (1887).
35. Id. at 375. See also Ex parte De Bara, 179 U.S. 316 (1900) (following Henry and reiterating, id. at 322, that the issue of the “ultimate punishment” had been left to the court).
36. Ashe v. Swenson, 397 U.S. 436, 469 (1970) (Burger, C.J., dissenting).
37. Richardson, 158. Richardson agrees that the Double Jeopardy Clause does not bar harassing prosecutions, identifying the Due Process Clause as the home of that protection. Id. at 159–68.
38. See Poulin, Complex Criminal Cases, 124 (noting that Grady “leaves a gap in double jeopardy protection” because it permits the government to craft the relevant transaction and thus often avoid the Grady inclusion).
39. 509 U.S. 688 (1993).
40. As we shall see, Blockburger’s test can be rebutted in the context of a single trial by contrary legislative intent. Still, it is fair to say that the included-offense test is the only general, all-purpose same-offense test.
41. For some thoughts on what Dixon might mean, see Henning, 23–43; Richardson, 135–39; Rudstein, Summary Contempt, 705–14.
42. 509 U.S. at 720 (White, J., concurring in the judgment in part and dissenting in part) (joined by Souter J., as to Part I, and Stevens, J.) (agreeing with Scalia on the two charges which precipitated the dissenting votes from Rehnquist, O’-Connor, and Thomas; disagreeing with Scalia on the other two charges); id. at 741 (Blackmun, J., concurring in the judgment in part and dissenting in part) (refusing to reach the double jeopardy issue on the facts of Dixon but stating that he agreed with White’s and Souter’s resolution of the issue); id. at 743 (Souter, J., concurring in the judgment in part and dissenting in part) (joined by Stevens, J.) (agreeing with White on outcome but defending an even more expansive view of the Double Jeopardy Clause).
43. Id. at 713 (Rehnquist, C.J., concurring in part and dissenting in part) (joined by O’Connor & Thomas, JJ.) (disagreeing with Scalia’s application of Blockburger to two of the four charges).
44. Amar & Marcus, 38.
46. Moore, 353.
47. Moore, 353.
48. Susan Klein cites my early work to support the idea that the Double Jeopardy Clause prohibits vexatious multiple trials. Klein, 243 n.243. I plead guilty to having claimed that double jeopardy barred successive prosecutions and only derivatively limited the number of convictions. By 1988, however, I began to see that the matter was more complex. For example, I saw that double jeopardy theory could be unified by defining its mission as limiting the number of blameworthiness determinations. See, Thomas, Elegant Theory, at 850 (“The double jeopardy clause functions to protect verdicts. Verdicts, of course, determine criminal culpability based on particular conduct and its consequences.”) From that understanding, it was a short move to my legislative-prerogative thesis, presented in this book, which rejects all harassment theories (including my own 1984 version; see Thomas, Successive Prosecutions). A sample of other commentators supporting a two-tier definition of same offense includes Kirchheimer; Remington & Joseph; Note, 11 Stan. L. Rev. 735; Note 52 U. Cin. L. Rev. 467.
49. See, e.g., Ronner, at 776 (unclear whether Ronner envisions that protection in the Double Jeopardy Clause itself or in the Eighth Amendment).
50. Id.
51. King, Excessive Penalties, 115.
52. Richardson, 151.
53. The government was not overreaching in Green as much as it might appear from the text. It would have been flagrant overreaching if the government had sought a first-degree indictment in addition to the second-degree conviction, but this was not the case. Green had secured an appellate reversal of the second-degree murder conviction. With no conviction to bar a second trial, the government could proceed with a murder indictment, and the only issue was whether it could begin again with a first-degree murder indictment.
54. Difficult questions sometimes arise about which conviction is erroneous if more than one is imposed when only one is authorized. But for the present, I need only the general principle.
55. Whalen v. United States, 445 U.S. 684, 688 (1980).
56. Some states permit prosecution appeal of certain legal questions following an acquittal. See Note, 43 Wash. and Lee L. Rev. 295; Palko v. Connecticut, 302 U.S. 319 (1937) (upholding Connecticut statute of this general type). Palko is discussed in detail in chapter 9.
57. United States v. Jenkins, 420 U.S. 358 (1975).
58. Id. at 390, quoting Green, 355 U.S. at 187.
59. United States v. Scott, 437 U.S. 82 (1978).
60. 432 U.S. 161 (1977).
61. Some difficulties in application arise when dealing with compound-predicate offenses. In this category, one offense (the compound) requires proof of another (the predicate)—for example, felony murder. Is robbery a necessarily-included offense of felony murder based on robbery? Yes, on one reading of necessarily included, and no on another reading. See chapter 6.
63. Westen & Drubel, 159–62.
64. Amar & Marcus, 34–35. See chapter 3.
65. Westen and Drubel would require that the punishment imposed on the first conviction be credited to the defendant if he is convicted in the second trial—thus, on at least one reading of what “punishment” means, he is not punished twice. Amar and Marcus would retain Blockburger as a presumption about legislative intent to punish cumulatively and they too would presumably insist that two sentences could not be imposed.
66. Many states have enacted mandatory joinder statutes. See Thomas, Elegant Theory, 868–69 n.240.
67. 1 Bishop 786, § 1061 (1).
68. 1 Bishop 785, § 1060.
69. This is an elaboration of the “verdict finality” argument I first made in Thomas, Elegant Theory.
70. Palko v. Connecticut, 302 U.S. 319 (1937), discussed chapter 9.
71. Missouri v. Hunter, 459 U.S. 359 (1983), discussed chapter 3.
72. 372 U.S. 734 (1963).
73. Green vacated a verdict for first-degree murder. In Price v. Georgia, 398 U.S. 323 (1970), the defendant was convicted of voluntary manslaughter as a lesser-included offense of murder. That conviction was reversed for trial error. The state retried Price for murder; he was again convicted of the lesser offense of manslaughter. The Court reversed the second manslaughter conviction because it had been imposed in a trial that itself violated double jeopardy. Having been acquitted, implicitly or otherwise, of murder, Price could not be tried for that crime regardless of the outcome.
74. Burks v. United States, 437 U.S. 1 (1978).
75. United States v. Scott, 437 U.S. 82 (1978).
76. 432 U.S. at 171 (Blackmun, J., dissenting).
77. Chapter 5 considers the proper scope of the proscribed act in the Ohio joyriding/auto theft statutes.
78. Felony murder requires proof of a felony; premeditated murder requires proof of premeditation. Strictly applied, therefore, the Court’s test would permit two convictions, and two prosecutions, for the same killing. This point is developed in more detail in chapter 6.
79. Whalen v. United States, 445 U.S. 684 (1980).
80. I once titled an article “An Elegant Theory of Double Jeopardy.” I now regret the youthful enthusiasm that led to this somewhat embarrassing title. To make matters worse, as Lloyd Weinreb pointed out to me in a letter, my account, while more elegant than the mess the Court has created, was not fully elegant. So I refrain from claiming elegance for the present restatement of my 1988 article. I do claim, however, that the book’s account solves both the conduct and the definitional dimensions of the “same-offense” problem with a single stroke.
81. Exodus 20.
82. Exodus 18:16 (New English Bible 1970).
83. See Nahum 1:9 (King James).
84. See Bartkus v. Illinois, 359 U.S. 121, 152 n.4 (1959) (Black, J., dissenting), relying on 25 Migne, Patrologia Latina 1238 (1845).
85. 1 Pollock & Maitland 448 (quoting original in Latin).
86. The next verse supports this reading: Nahum 1:10 (stating that God’s enemies “shall be devoured as stubble fully dry”).
87. See Nahum 1:9 (New English version).
88. 4 Blackstone’s Commentaries *336. The use of former attainder to bar prosecution for felonies that were not the same offense, though conceptually sound, did not endure many years after publication of the Commentaries. Parliament soon required that the plea of former attainder be limited to the same offense. See 7 and 8 Geo. IV c. 28 s. 4 (1827).
89. The Babylonian Laws 13.
90. Id. at 15.
92. Demosthenes 20.147 (reprinted in 1 Demosthenes 589).
93. See 1 J.L. Strachan-Davidson, Problems of the Roman Criminal Law 155 (1912).
94. See id. at 127–45.
95. VI Polybius 14.6, quoted in Strachan-Davidson, 127.
96. See The Opinions of Paulus, Title XVII (quoting the Roman jurist Paulus that “after public acquittal a defendant could again be prosecuted by his informer within thirty days, but after that time this cannot be done”); 2 Strachan-Davidson, 177.
97. Theodor Mommsen, Strafrecht 277, quoted in 2 Strachan-Davidson, 177.
98. See Dig. Just. 48.7.2, reprinted in 4 The Digest of Justinian 797 (“the governor must not allow a man to be charged with the same offenses of which he has already been acquitted”); Dig. Just. 49.6, reprinted in id. at 865 (allowing appeal after conviction). The Digest is silent on whether the state can appeal an acquittal, but all the examples of appeals from criminal judgments involve appeals from convictions. See Dig. Just. 49.1.6, 49.1.15, 49.1.18, 49.4.1, 49.4.2.3, 49.5.2, 49.7.1.2 & 3, 49.7.1.5, 49.9.1. reprinted in id. at 865, 866, 867, 869–70, 871, 872, 872–73, 873, 874.
99. 1 Pollock & Maitland, 130.
100. See The Constitutions of Clarendon c. 3 (1164), reprinted in Sources of English Legal and Constitutional History 12.
101. See 1 Pollock & Maitland 448.
102. Id. at 455–56 n.1.
103. See id.
104. 1 Pollock & Maitland, 124, citing 1 Gesta Henrici (Benedictus) 33.
105. Id. at 457.
106. Id.
107. Id. at 455 n.1.
108. Id.
109. Friedland, 7.
110. See 1 Pollock & Maitland, 454–56 (noting that Becket’s double punishment argument “had neither been tolerated by the state nor consecrated by the church,” id. at 454, and that “Becket’s theory about double punishment was condemned by Innocent III” by decree “to this day part of the statute law of the catholic church,” id. at 455). See also Barkus v. Illinois, 359 U.S. 121, 152 n.5 (1959) (Black, J., dissenting) (noting that Becket’s “assertions that Henry’s proposals would result in double punishment for the clerics has been much debated by historians”).
111. This position is, of course, highly controversial. For the traditional, contrary view, see Friedland, 7 (stating, as if obvious, that punishment by both the king and the church is double punishment).
112. 4 Blackstone’s Commentaries *373.
113. By Blackstone’s day, the offender who was granted his clergy could be subject to one or more unpleasant consequences, though Blackstone insisted they were “concomitant conditions” rather than “consequences of receiving this indulgence.” Id. at 373. These “concomitant conditions” included being branded, whipped, fined, or imprisoned for up to one year. Id. at 367–73. Even more unpleasant “conditions” were discretionary with the judge: “the court, in their discretion, instead of such burning in the hand or whipping, may direct such offenders to be transported to America (or … to any other parts beyond the seas) for seven years.…” Id. at 371. While the Supreme Court would surely consider these “concomitant conditions” to be criminal punishments today, see Chapter 4, they were insignificant compared to hanging.
114. I am for the moment using “same act” interchangeably with “same offense,” as Becket and Saint Jerome did. Further evidence on this point can be found in the remaining sections in this chapter.
115. It is not clear whether these pleas evolved in some manner from the Becket-Henry confrontation or were simply bubbling up in the secular courts simultaneously. The existence of four different pleas by 1203 suggests the latter origin. Cf. Sigler, 3 (Becket-Henry disagreement may have “foreshadowed the current legal doctrine,” or pleas in bar “may have derived from the Continent through canon law, rather than being native to England”).
116. 1 Select Pleas Of The Crown 33 (case 76, year 1203) (alternative ground for finding appeal “null”) (other ground that prosecutor “made no mention of sight or hearing”); id. at 79–80 (case 124, date uncertain) (letting one of defendants be “quit” of robbery charge because he was previously “discharged” of same offense).
117. See id. at 21–22 (case 47, year 1202) (asking “by what warrant they outlawed the same man twice for the same death”, id. at 22); id. at 35 (case 79, year 1203) (finding a former “concord” for the same offense); id. at 38–40 (case 82, year 1200) (finding prosecution against at least one defendant null because of proof of prior compromise between prosecutor and that defendant).
118. See id. at 17 (case 40, year 1202) (postponing resolution of plea, because prosecutor denied withdrawing prosecution, until evidence “be had upon this matter”). Withdrawal was recognized by Britton as a bar to a new prosecution in the late thirteenth century. See 1 Britton 103–4 (drawing parallel between withdrawal and acquittal); id. at 113 (establishing plea of former acquittal as bar to new prosecution); id. at xviii (fixing probable date of publication as 1291–92).
119. See 1 Select Pleas of the Crown, 77–78 (case 121, date uncertain) (other defenses were untimely prosecution and improper motives of prosecutor).
120. 1 Bracton (Woodbine ed.), xlii (Translator’s Note).
121. 2 Bracton, 391.
122. Id. at 397, 398, 400.
123. 2 Fleta 82.
124. Mirror Of Justices 175.
125. 1 Britton 113.
126. Wrote v. Wigges, 76 Eng. Rep. 994, 996–97 (1591).
127. 4 Blackstone’s Commentaries *336.
128. 2 Bracton, 391.
129. Finklestein, 68 (laws 10 & 11). Hammurabi’s Code provided for ordeal of water for sorcery if the accuser was “unable to sustain” the charge. If the accused drowned, the accuser got his house; if the accused survived, the accuser was put to death, and the accused took his house. Code of Hammurabi 2.
130. 4 Blackstone’s Commentaries *342.
131. Finklestein, 188; 4 Blackstone’s Commentaries *342–43; 2 Pollock & Maitland, 599.
132. Though we lack records as far back as 1176, Maitland found only one case between 1201 to 1219 where the accused was not acquitted by the ordeal. Friedland, 6 (citing 1 Maitland, Select Pleas, xxiv, 75). Moreover, Pollock & Mait-land report evidence “from a Hungarian monastery which kept a register of judgments” in the thirteenth century. “This evidence is said to show that it was about an even chance whether the ordeal of hot iron succeeded or failed.” 2 Pollock & Maitland, 599 n.1. Further implicit evidence is that in “certain cases” the procedure “gave the appellee [defendant] a choice between bearing the iron and allowing the appellor to bear it. This seems to show that the result could not be predicted with much certainty.” Id. Finally, anecdotal evidence indicated lack of confidence in the ordeal. See id. at 599 n.2 (noting an occasion in which fifty defendants “escaped” the ordeal of iron).
133. See Assize Clar. c. 14 (1166), reprinted in Sources of English Legal and Constitutional History 15. Outlawry was, in effect, a declaration that the community would “make war” upon an individual. See 2 Pollock & Maitland, 449.
134. Assize North. c. 1 (1176), reprinted in Sources of English Legal and Constitutional History 16. Here, we can more clearly see an evolving confidence in the judgment of jurors and a growing mistrust of the ordeal. See 2 Pollock & Maitland, 599. This trend, of course, culminated in this country with the Sixth Amendment right to trial by jury.
135. See Hunter 12 (citing 22 Ed. IV Fitz. Cor 44 (1482)). Prior practice had been that the king could bring an indictment first, but an acquittal on the indictment barred the private appeal. Id.
136. See 3 Hen. VII, c.1 (1487). This statute worked a change in the common law. Sigler is thus wrong to claim that Coke misstated “contemporary doctrine” when he wrote that an acquittal on an indictment is no bar to a private appeal in murder cases. Sigler, 17–18.
137. 2 Bracton, 391.
138. Friedland, 10.
139. 26 Hen. VIII, c.6 (1534). Friedland views this statute as one of the “significant lapses in the rational development of double jeopardy rules.” Friedland, 10.
140. Hunter, 12–13.
141. 4 Blackstone’s Commentaries *366–67.
142. Id. at *373. The text oversimplifies somewhat. Clerics in orders were entitled to benefit of clergy without punishment of any kind. Lords of parliament and peers of the realm were likewise entitled to benefit of clergy without punishment, but for a first offense only. It was commoners who had to endure a lesser punishment to claim benefit of clergy for their first offenses.
143. 4 Hen. VII, c. 13 (1487).
144. 23 Hen. VIII c.1 (1531).
145. 8 Eliz. c. 4 (1565) & 18 Eliz. c. 7 (1576).
146. 18 Eliz. c. 7 (1576).
147. 4 Blackstone’s Commentaries *374.
148. Lisle’s Case, 84 Eng. Rep. 1095, 1101 (1697).
149. Coke’s Third Institutes, 212.
150. 9 Hen. VII, c.1 (1487).
151. Coke’s Third Institutes, 213. Though Coke used the broader “offense,” it is clear from the context that he limited double jeopardy pleas to felonies. Hale states the plea more accurately as auterfoits attaint de mesme felonie. See 2 Hale, 251.
152. See 2 Hale, 250.
153. Coke’s Third Institutes, 213.
154. Id. at 213–14.
155. See Coke’s Third Institutes, 213. By the time of Blackstone, the plea of former pardon was considered a separate plea in bar. 4 Blackstone’s Commentaries *337. See also 2 Hale, 241 (listing auterfoits attaint of another felony as a plea in bar); id. at 252.
156. Coke’s Third Institutes, 213.
157. Id.
158. Id.
159. Id.
160. See id. at 214; 2 Hale, 241.
161. Prior to 1565, benefit of clergy barred prosecution for any felony formerly committed, even if the felony did not qualify itself for benefit of clergy. Coke’s Third Institutes, 214. A statute of Elizabeth’s limited the effect to former felonies for which clergy was permitted. 8 Eliz. c. 4 (1565).
162. Grady v. Corbin, 495 U.S. 510, 530 (1990) (Scalia, J., dissenting).
163. 4 Blackstone’s Commentaries *336.
164. Id. at *335.
165. 1 Blackstone’s Commentaries on the Laws of England xiv (ed. G. Sharswood 1885) (noting publication date of 1769).
166. 1 Annals Cong. 434 (1789).
167. Presumably, a defendant’s election to end the trial prior to verdict would have been viewed as a waiver, thus permitting a second trial.
168. 1 Annals Cong. 753.
169. 4 Blackstone’s Commentaries *335.
170. “Jeopardy” derives from the Old French jeu parti, “signifying an even, or divided, game, a game in which the chances are even.” Webster’s New International Dictionary of the English Language 1332 (2d ed. 1957).
171. Kepner v. United States 195 U.S. 100, 134 (1904) (Holmes, J., dissenting).
1. Moore, Act and Crime.
2. In re Snow, 120 U.S. 274 (1887), discussed in chapter 3.
3. 22 U.S. (9 Wheat.) 579 (1824).
4. Id. at 579.
5. Id. at 580.
6. Id.
8. 22 U.S. at 580.
9. United States v. Haskell, 26 Fed. Cas. 207, 212 (1823) (holding that a discharge of a jury on grounds of lack of verdict is not a valid double jeopardy plea.)
10. 3 Story, § 1781.
11. Story also cited Rawle on the Constitution, ch. 10, pp 132–33. Id.
12. 437 U.S. 28 (1978). For a discussion of Crist on the merits, see chapter 8.
13. Id. at 34 n.10.
14. Justice Powell, in dissent, saw “manifest necessity” as an “independent [common law] rule barring needless discharges of the jury,” Id. at 44–45 (Powell, J., dissenting).
15. 434 U.S. 497 (1978).
16. Id. at 506 (footnotes omitted).
17. Id. at 511.
18. Id.
19. United States v. Scott, 437 U.S. 82 (1978), discussed in chapter 8.
20. 437 U.S. 1 (1978)
21. Ball v. United States, 163 U.S. 662 (1896).
22. Burks, 437 U.S. at 10 (emphasis in original).
23. Indeed, some state rules of procedure recognize a distinction between reversals of convictions that are not supported by legally sufficient evidence and reversals of convictions that are against the weight of the evidence. The latter standard explicitly puts the trial judge (and later the appellate court) in the position of serving as a thirteenth juror. It is not necessary for a judge to find no legally sufficient evidence to reverse a conviction as against the weight of the evidence; the judge might simply decide that the evidence raises a doubt in her mind, even though a rational jury could find guilt beyond a reasonable doubt. These categories of reversals have different double jeopardy consequences. See Tibbs v. Florida, 457 U.S. 31 (1982), discussed in chapter 8.
24. Burks, 16 (emphasis in original).
25. 1 Bishop 774, § 1048.
26. Sigler, 101.
27. The common law developed some quite good, but largely ad hoc, answers to these questions. See, e.g., 35 Harv. L. Rev. 615 (robbery of two victims is two robberies); 20 Harv. L. Rev. 642, 643 (theft in one transaction of goods belonging to several owners is a single theft). But the nineteenth-century effort to ground an understanding of offense in act or injury to the state was largely abandoned, leaving the way clear for a mindless counting of offense violations. See, e.g., 12 Ky. L. Rev. 249 (approving of case finding that each hand of stud poker was a separate double jeopardy offense of gambling).
28. 2 Hale, 245.
29. Id.
30. 237 U.S. 632, 640 (1915).
31. 120 U.S. 274 (1887).
32. Id. at 276–77.
33. Id. at 282.
34. Id. at 285.
35. 131 U.S. 176 (1889).
36. Id. at 187. Professor Olson points out that the Court read “sexual intercourse” into the cohabitation statute so that it was not really an element to be compared with the elements of adultery. Olson, 48–49. But on this point, I agree with Amar and Marcus: by virtue of statutory interpretation of a federal statute, the net effect of Nielsen is to make “sexual intercourse” an element of cohabitation. Amar & Marcus, 42.
37. 220 U.S. 338, 342 (1911).
38. Id. at 343.
39. The state approach is discussed and compared to my blameworthy act approach in chapter 5.
40. 284 U.S. 299 (1932).
41. The assertion that the other elements in the Blockburger statutes are not blameworthy acts must be defended, as chapter 5 attempts to do.
42. 284 U.S. at 301.
43. Grady, 495 U.S. 529 (Scalia, J., dissenting).
44. 168 Eng. Rep. 455 (K.B. 1796).
45. Grady, at 533 (Scalia, J., dissenting).
46. 168 Eng. Rep. at 461.
47. Brown v. Ohio, 432 U.S. 161, 168 (1977).
48. The English usage of this test ignored the doctrine that permits conviction of lesser-included offenses. The test was a mechanical one which asked whether the proof of the facts in the second indictment would convict of the offense charged in the first indictment.
49. Friedland, 98. To be fair to Vandercomb, the King’s Bench almost certainly intended this test not as an all-purpose same-offense test but, rather, as a test for variance. Id. at 100. Variance occurs when the state proves a different offense than it charged. See chapter 9.
50. Vandercomb, 168 Eng. Rep. at 460 (discussing Turner’s Case, Kely. 30).
51. Id. No second indictment had been procured in Turner’s Case; the decision “was merely a direction from the Judges to the officer of the Court how to draw the second indictment for the larceny.” Id.
52. Gavieres v. United States, 220 U.S. 338, 343–44 (1911).
53. 202 U.S. 344 (1906).
54. Id. at 381 (quoting 1 Bishop, Criminal Law, § 1051).
55. See Grady v. Corbin, 495 U.S. 508 (1990), discussed in chapter 2.
56. Few courts or commentators have stated this truth explicitly, perhaps because it is obvious, perhaps because it is not. For a welcome exception, see Poulin, Complex Criminal Cases, 118.
57. Friedland, 98–99. Continuing: “For example, unnecessary averments in the second might mean that a special plea would succeed, whereas unnecessary averments in the first might mean that it would not.” Id. at 99.
58. See United States v. Dixon, 509 U.S. 688 (1993). To be sure, there is some play in the joints, as five members of the Dixon Court were willing to consider the particular contempt order that the defendant was charged with violating. But this is different from examining the indictments to see whether the allegations are distinct. One state court has stated explicitly that Blockburger “must stand or fall on the working of the statutes alone, not on the indictment.” State v. Close, 623 P.2d 940, 950 (Mont. 1981).
59. 384 U.S. 436 (1966).
60. But not completely. The Court has been divided over the application of Blockburger to several complex statutory offenses. See United States v. Dixon, 113 S.Ct. 2849 (1993) (plurality); Garrett v. United States, 471 U.S. 773 (1985); Whalen v. United States, 445 U.S. 684, 688 (1980); Jeffers v. United States, 432 U.S. 137 (1977) (plurality).
61. Perhaps Miranda is no better than Blockburger. See George C. Thomas III, The Real-World Failure of Miranda: A Plea For More (and Better) Empirical Evidence, 43 U.C.L.A. L. Rev. 821 (1996).
62. Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820).
63. Id. at 23.
65. 438 U.S. 204 (1978).
66. See id. at 226–27 & n.8 (Marshall, J., dissenting).
67. Note, 49 Ohio St. L.J. 773, 799. One might ask why recommend functionalism if the resulting balancing test will be difficult to perform. The commentator explains that “a functional approach will enable the Court to realize when actions by the state interfere with the double jeopardy clause’s protections.” Id. How a balancing test will accomplish this clarity is not explained.
68. Westen has made a similar argument, though he finds the salient distinction between a jury fact-finding and other findings, based on his privileging of jury nullification as the preeminent value protected by double jeopardy. Westen, 1038–39 n.136. The distinction I draw is between a finding accepted by the relevant procedure as final and one that is defined as tentative.
69. They do not. See McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
70. 438 U.S. at 212.
71. Id. at 216 n.14.
72. 273 U.S. 1 (1927).
73. Id. at 11.
74. 432 U.S. 161, 165 (1977).
75. Id. (footnote omitted).
76. Chapter 6 argues that Brown also gets exactly right the difficult issues of how to compare statutory descriptions and how to count violations of a single statute.
77. Jeffers v. United States, 432 U.S. 137 (1977).
78. See Brown, 432 U.S. 166–67 n.6: “The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first.”
79. Whalen v. United States, 445 U.S. 684, 688 (1980).
80. 450 U.S. 333, 344 (1981).
81. Id. at 345 (Stewart, J., concurring in the judgment).
82. Id. (citation omitted).
83. For a discussion of the “cold war” between the Missouri Supreme Court and the United States Supreme Court, see Thomas, Multiple Punishments After Missouri v. Hunter.
84. 459 U.S. 359 (1983).
85. Id. at 362.
86. See Whalen v. United States, 445 U.S. 684 (1980).
87. Justice Stewart had retired by 1983.
88. Hunter, 459 U.S. at 365 (quoting State v. Haggard, 619 S.W.2d 44, 51 (Mo. 1981)).
89. Id.
90. 357 U.S. 386 (1958). For more detail on Gore, see chapter 6.
91. This was the Court’s characterization of the legislative intent in Hunter. 459 U.S. at 368.
92. For the contrary view, see Schwartz, 845–46. Of course, if the multiple collateral consequences are not authorized by the legislature, their imposition would violate double jeopardy. See Ball v. United States, 470 U.S. 856 (1985) (holding that multiple convictions constitute multiple punishment whether or not a sentence has been imposed, in part because of the collateral consequences). I discuss the implications of Ball in Thomas, Sentencing Problems.
93. 85 U.S. (18 Wall.) 163 (1873).
94. For a more detailed examination of Lange, including an analysis of three different theories of multiple punishment raised by the case, see Thomas, Multiple Punishments After Missouri v. Hunter.
95. See Kurth Ranch, 511 U.S. 767, 799 (1994) (Scalia, J., dissenting).
96. Whalen v. United States, 445 U.S. 684, 690 n.4 (1980). The Court noted that the separation of powers doctrine would similarly forbid federal courts from “imposing multiple punishments not authorized by Congress.” Id. at 689.
97. Lange, 83 U.S. (18 Wall.) at 173.
98. See the commentators and Supreme Court dicta cited (approvingly) in Thomas, Successive Prosecutions, 340–59.
99. Moore, 353.
100. The Kurth majority seemed to agree, implicitly holding that the tax collection proceeding was a second prosecution and thus barred regardless of the legislative intent to punish cumulatively. Scalia argued that a tax collection proceeding is not a criminal prosecution. On my view, as I argue in the text, this debate is pointless.
101. See Thomas, Unified Theory of Multiple Punishment, 25–54.
102. Note, 45 Vand. L. Rev. 273, 307. The author lodges a criticism of Block-burger’s dual nature different from my legislative-prerogative critique: If Block-burger is a form of statutory construction, federal courts cannot legitimately apply it to state cases because statutory construction of state statutes is uniquely within the jurisdiction of state courts. Id. at 310. I do not disagree with this view but point out that the Court has applied Blockburger only once to reverse a state court same-offense case and in doing so was at pains to insist that it was following the state court construction of the statute. Brown v. Ohio, 432 U.S. 161 (1977).
103. 4 Blackstone’s Commentaries *336. The use of former attainder to bar prosecution for felonies that were not the same offense, though conceptually sound, did not endure many years after publication of the Commentaries. Parliament soon required that the plea of former attainder be limited to the same offense. See 7 & 8 Geo. IV c. 28 s. 4 (1827).
104. Scalia might respond that the Double Jeopardy Clause did not incorporate the plea of former attainder. Grady v. Corbin, 495 U.S. 508, 530 (1990) (Scalia, J., dissenting). True enough, but the point in the text is contextual and not substantive. The existence of a broad plea of former attainder and a narrow plea of former conviction is significant because it demonstrates that the concern of the common law was punishment and not the number of trials. The contextual understanding that multiple punishment is the same evil as multiple trials was undoubtedly held by the Framers, as Lange implies.
105. Friedland, 171–80.
106. Scalia’s argument here, of course, is that the change in the language effected by the Framers was intended to change this part of double jeopardy protection. All the evidence about why the Framers changed Madison’s language is to the contrary, however. See chapter 2.
107. 83 U.S. (18 Wall.) at 173.
108. 471 U.S. 773 (1985).
109. Chapter 6 discusses the category of “compound-predicate” offenses.
110. For more evidence on this point, see Poulin, Complex Criminal Cases, 108–9, and the authorities she cites.
111. Sigler, 38.
112. Id. at 41.
113. Id. at 67.
114. Id. at 75.
115. Id. at 41.
116. Green v. United States, 355 U.S. 184, 187 (1957).
117. Sigler, 222–23.
118. Comment, 75 Yale L.J. 261, 264.
119. Id. at 266.
120. Simon recommends that mandatory joinder be read into the Double Jeopardy Clause, which technically sets his solution apart from the Model Penal Code’s legislative solution. Unfortunately, trying to read mandatory joinder into the Double Jeopardy Clause is a deeply flawed project, as I seek to demonstrate in chapter 2.
121. See Kirchheimer.
122. Westen & Drubel, 84–85.
123. See McKay, 8–9 (making this criticism of Westen & Drubel).
124. Amar & Marcus, 28–44.
125. Green v. United States, 355 U.S. 184 (1957).
126. 4 Blackstone’s Commentaries *336. Amar believes that the theoretical distinctiveness of murder and manslaughter is implicit in Diaz v. United States, 223 U.S. 442 (1912), where the Court allowed a homicide prosecution to follow an assault conviction. Since assault is a necessarily-included offense of homicide, Amar reads Diaz to permit murder to be prosecuted following conviction of the necessarily-included offense of manslaughter, assuming the second prosecution is not vexatious. In Diaz, the victim did not die until after the assault conviction, thus making the second trial nonvexatious. This interpretation of Diaz seems implausible. The killing had not yet occurred when the assault conviction was imposed, thus making these different acts. Indeed, Diaz makes this point: “At the time of the trial for the [assault] the death had not ensued, and not until it did ensue was the homicide committed.” Id. at 449 (emphasis added).
127. See Batchelder, 738–53, and the cases cited in n.48, chapter 1.
128. 1 Bishop 775, § 1050.
129. Amar & Marcus, 38 n.190.
130. Nancy King has attempted to give content to the Amar-Marcus “vexatious prosecution” standard, but the improvement is, to my mind, only marginal. See King, Three Dimensional.
131. I made this criticism in Thomas, Blameworthy Acts, and Amar responded by claiming that “life or limb” is a “grimly poetic synecdoche,” not meant to be taken literally. To argue otherwise, Amar claims, is to miss the “big difference between plain meaning textualism and tin ear textualism.” Amar, Sixth Amendment Principles, 660 n.76. I suggest that “tin ear textualism” is in the ear of the listener.
132. 471 U.S. at 784.
1. 1 Britton xviii.
2. Id. at 104. See also id. at 112 (noting that an acquittal on “our” suit does not bar a private appeal).
3. See LaFave & Israel, § 17.4(a).
4. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963).
5. 118 S.Ct. 488 (1997).
6. See Thomas, A Modest Proposal.
7. 490 U.S. 435 (1989).
8. See Hudson v. United States, 118 S.Ct. 488 (1997).
9. 116 U.S. 427 (1886).
10. United States v. McKee, 26 F. Cas. 1116 (C.C.E.D. Mo. 1877) (No. 15,688).
11. 116 U.S. at 445.
12. 1 Bishop 733, § 990
13. See McKechnie, 359–367 (discussing chapter thirty-six of Magna Carta, which provided for a writ to test the adequacy of a homicide charge before twelve recognitors and thus to allow unjustly accused defendants to avoid the trial by battle).
14. See Russell, 135.
15. See McKechnie, 366–67 (noting that trial by battle was nonetheless not officially repealed until 1819).
16. See 2 Pollock & Maitland, 461.
17. See 1 Annals Cong. 754.
18. Sigler states that “threat of death or mutilation” was a necessary element of early double jeopardy doctrine, but offers no evidence. Sigler, 39.
20. 4 Blackstone’s Commentaries *335.
21. 1 Annals of Congress 753.
22. Id.
23. 1 S. Jour. 167. Obviously, a mistake was made in omitting “twice” from the Senate language about being put in jeopardy. “Twice” appeared in an earlier Senate motion to amend the House language. Id. at 154.
24. Sigler has an excellent summary of the drafting and approval of the Double Jeopardy Clause. Sigler, 27–34.
25. 1 S. Jour. 209.
26. 85 U.S. (18 Wall.) 163, 168–73 (1873).
27. Moore, 1.
28. Cox, 1307.
29. Id. at 1238.
30. For law review commentary on state cases raising this issue, see Note, 18 Campbell L. Rev. 391; Comment, 44 U. Kan. L. Rev. 1009; Note, 29 Loy. L.A. L. Rev. 1273; Note, 23 New Eng. J. on Crim. & Civ. Confinement 239.
31. For law review commentary on state cases, see Kravitz, 29 Akron L. Rev. 123; Note, 23 Fordham Urb. L.J. 923; Casenote, 4 Geo. Mason L. Rev. 521; Comment, 65 UMKC L. Rev. 104.
32. See Annual Survey, 5 Widener J. Pub. L. 809.
33. See Pasley, 114 Banking L.J. 4. The Supreme Court has since corrected this corner of Halper and sent a signal that Halper is essentially dead.
34. See Survey of Recent Developments, 27 Seton Hall L. Rev. 1161.
35. See Comment, 26 Cumb. L. Rev. 231.
36. 511 U.S. 767 (1994).
37. Id. at 784.
38. Id.
39. 1 Bishop 733–734, § 990 (emphasis added). See also Gooch, 22 (relying on Bishop).
40. 372 U.S. 144 (1963).
41. Id. at 168. Compare Halper’s definition of a criminal sanction: where the sanction “cannot fairly be said solely to serve a remedial purpose, but rather can be explained only as also serving either retributive or deterrent purposes.” 490 U.S. at 448.
42. Id. (citations omitted).
43. See Supreme Court Review, 85 J. Crim. L. & Crim. 936, 957 (arguing that the Montana tax fails only two of the seven tests).
44. See chapters 3 & 6.
45. King, 183–84.
46. Some evidence of the startling nature of the Halper-Kurth Ranch doctrine is the quantity of law review commentary and the sometimes forced humor of the titles. For examples of the latter, see Casenote, The Tax Man Cometh, But Fear Not, 28 Creighton L. Rev. 475; Note, The Supreme Court Assaults State Drug Taxes with a Double Jeopardy Dagger: Death Blow, Serious Injury, or Flesh Wound?, 29 Ind. L. Rev. 695; Note and Comment, Is the DUI Defense D.O.A.?, 29 Loy. L.A. L. Rev. 1273; Casenote, Department of Kurth Ranch: Double Jeopardy. A: Multiple Punishment Component. Q. What Is Confusion?, 15 N. Ill. U. L. Rev. 433; Note, Up In Smoke, 28 Tex. Tech. 923; Note & Comment, Enlarging the Sargasso Sea of Double Jeopardy, 17 Whittier L. Rev. 477.
Other examples of commentary on the Halper doctrine include Hall, 32 Idaho L. Rev. 527; Klein, 82 Iowa L. Rev. 183; Neafsey & Bonanno, 7 Fordham Envtl. L.J. 719; Note, 23 Am. J. Crim. L. 431; Case Comment, 75 B.U. L. Rev. 505 (1995); Casenote, 30 Creighton L. Rev. 235; Case Note, 73 U. Det. Mercy L. Rev. 117; Case Comment 7 U. Fla. J.L. & Pub. Pol’y 385 (1994); Summary, 25 Golden Gate U. L. Rev. 331; Supreme Court Term, 110 Harv. L. Rev. 206; Symposium, 32 Idaho L. Rev. 545; Note, 81 Iowa L. Rev. 775; New Decisions, 83 J. Tax’n 316; Comment, 71 St. John’s L. Rev. 153; Casenote, 5 Seton Hall Const. L.J. 1231; Comment, 48 S.C.L. Rev. 405; Note; 4 S. Cal. Interdisciplinary L.J. 323; Comment, 21 S. Ill. U. L.J. 149; Comment, 26 Stetson L. Rev. 373 (1996); Note, 48 Tax Law. 911; Note and Comment, 71 Wash. L. Rev. 489 (1996).
47. Rudstein, Civil Penalties. Susan Klein, among others, insists that Halper was correctly decided and thus that no correction is needed. In part, this may be because she values history less than I do. Klein, 257 n.309.
48. Henning, 43–71.
49. Id. at 69. Henning contrasts the inflexible nature of double jeopardy protection with the Excessive Fines Clause in the Eighth Amendment, which, by definition, requires proportionality. It also permits a court to reduce the fine to an acceptable level. If Halper had been decided as an Eighth Amendment case, the Court could have remanded for a determination of the appropriate amount of the fine. This approach can satisfy both defendants, who pay only a fine that is proportional to the harm caused, and the government, which is permitted to recover a reasonable amount of damages.
50. One could, of course, analyze cases like Halper and Kurth Ranch under the Excessive Fines Clause of the Eighth Amendment. See Supreme Court Review, 85 J. Crim. L. & Criminology 936.
51. 118 S.Ct. 488 (1997).
52. Id. at 491.
53. Id. at 497 (Stevens, J., concurring in the judgment).
54. Kansas v. Hendricks, 117 S.Ct. 2072 (1997).
55. Hudson, 118 S.Ct. at 497 (Stevens, J., concurring in the judgment).
56. 518 U.S. 267 (1996). Susan Klein does not share my view that Ursery is a favorable development. Klein, 233–41.
57. See also Hall, at 542 (noting, prior to Ursery, the “unique role of civil forfeiture statutes as a tool for recovery of the proceeds of crime, and for other remedial purposes”).
58. The Court also had to distinguish Austin, which held that a civil forfeiture is a “punishment” for purposes of the Eighth Amendment prohibition of “cruel and unusual punishment.” Austin v. United States, 509 U.S. 602 (1993). The Court’s distinction is clever, but thin, and illustrates the difficulty in assuming that all “punishment” is a “life or limb” penalty.
59. Cassella, 594.
60. 490 U.S. at 448. One commentator noted that the best definition of “remedial” may be “not criminal.” Comment, 45 U. Miami L. Rev. 911, 947.
61. For a thorough examination of the license revocation issue, see Comment, 46 Emory L.J. 329.
62. Henning, 51. See also Comment, 46 Emory L.J. 329, 355 (concluding that the license revocation issue must be resolved on a case-by-case basis, requiring “each state to look at its laws carefully to determine whether the sanctions imposed by the administrative license revocation statutes are in fact serving a remedial purpose or whether they are a punishment imposed without trial and masked as a civil sanction”).
63. 118 S.Ct. at 494.
64. Three members of the Hudson Court refused to join the part of Chief Justice Rehnquist’s majority opinion requiring “clearest proof,” but that requirement commanded a majority of the Court.
65. See 2 Pollock & Maitland, 451.
66. Id.
67. Id. at 462.
68. See id. at 452 (noting that even homicide was emendable at times by payment of money, horses, or oxen) & 456 (noting “signs” that the line between emendable and unemendable “fluctuated from time to time and still fluctuates as we pass from district to district”).
69. See Duncan v. Louisiana, 391 U.S. 145, 160 (1968) (quoting District of Columbia v. Clawans, 300 U.S. 617, 628 (1937) (internal citation omitted).
70. See Baldwin v. New York, 399 U.S. 66 (1970) (plurality).
71. 407 U.S. 25 (1972).
72. Scott v. Illinois, 440 U.S. 367, 373 (1979).
73. Abney v. United States, 431 U.S. 651 (1977) (deciding the issue as one of statutory construction of the federal interlocutory appeal statute).
74. For a more general argument that incarceration is generically different from all other consequences of the legal system, see Colb, Freedom from Incarceration.
75. Breed v. Jones, 421 U.S. 519, 529 (1975).
76. Halper, 490 U.S. at 449.
77. Moore, 353.
78. See chapter 2 for a discussion of why legislative intent should control in successive prosecutions as well as single trials.
79. Kurth Ranch, 511 U.S. at 801 (Scalia, J., dissenting).
80. See Thomas, Elegant Theory, 873–82 (describing a theory of election that works against the prosecutor as well as defendants).
81. See, e.g., Fugate v. New Mexico, 470 U.S. 904 (1985) (equally divided Court affirming lower court’s refusal to bar homicide prosecution following traffic convictions) (Powell, J., not participating); Thigpen v. Roberts, 468 U.S. 27 (1984) (holding traffic convictions a due process bar to manslaughter trial; not reaching double jeopardy question); Illinois v. Vitale, 447 U.S. 410, 419–20 (1980) (noting “substantial” claim of double jeopardy if state follows traffic conviction with homicide prosecution based on same conduct).
82. See, e.g., Illinois v. Zegart, 452 U.S. 948 (1981) (Burger, C.J., dissenting from denial of certiorari) (state court had held that traffic conviction barred homicide prosecution).
1. Mead, 874.
2. See Bentham, 71–81 (using somewhat different terminology).
3. Feinberg, Harm to Others; Offenses to Others; Harm to Self; Harmless Wrongdoing.
4. Feinberg, Harm to Others, 105–6.
5. Mead, 874.
6. For an innovative argument that criminal liability does not require a volitional movement, see Husak, 78–111. For the opposite view, see Moore, 18–59.
8. These requirements are usually referred to, respectively, as actus reus and the principle of legality. See, e.g., Husak, 7–11.
9. See, e.g., Moore, 360 (noting a class of cases in which most courts have rejected the metaphysically correct view because of “a moral insight (that they have not known how to conceptualize in terms of action-identity)”).
10. See Thomas, Unified Theory of Multiple Punishment, 15.
11. Model Penal Code § 1.13 (9).
12. Robinson & Grall, 719–25.
13. Robinson & Grall, 719.
14. Id.
15. Moore agrees. Moore, 207.
16. Moore uses a similar method. Moore, 208.
17. Akhil Amar stated to me that a statute limited to killing the president would, in his view, manifest significantly greater blameworthiness than a generic murder statute. I’m not sure I agree but, in any event, police officer status is not similarly unique.
18. 4 Blackstone’s Commentaries *336 (noting that murder and manslaughter are the same offense).
19. Moore, 339–40.
20. Thanks to David Griffin, one of my excellent research assistants.
21. See Model Penal Code § 2.02 (5).
22. Grady v. Corbin, 495 U.S. 508, 526 (1990) (Scalia, J., dissenting).
23. Moore, 330–49.
24. Moore, 342.
25. When pressed, Moore finds support in “our practices with regard to double-jeopardy adjudication … how we both do and should adjudicate double-jeopardy cases.” Id. at 335. This may be a way of conceding defeat on the philosophical point. I note a certain linguistic oddness about partial identity. We would hardly say, “My garage is the same structure as my house” because this entails the more problematic “My house is the same structure as my garage.” Rather, we would say, “My garage is part of the structure that is my house.” Thus, as a matter of terminology, I prefer act-type inclusion to partial identity.
26. Cf. Prince v. United States, 352 U.S. 322 (1957) (holding bank robbery the same offense as entry of a bank with intent to rob).
27. 495 U.S. 508 (1990).
28. United States v. Adams, 281 U.S. 202, 204 (1930), discussed in chapter 5 Holmes’s short points are one paragraph; mine are a little longer.
29. Telephone conversation with Michael Dwyer, Assistant Public Defender, Eastern District of Missouri and Southern and Central Districts of Illinois. Commentators generally agree. See Mead, 882–83; Remington & Joseph, 546–47; Note, U.Cin. L. Rev. 467, 487 n.135; Comment, U. Cin. L. Rev. 79, 82.
30. See Johnson, Conspiracy.
31. District of Columbia v. Buckley, 128 F.2d 17, 21 (D.C. Cir. 1942) (Rutledge, J., concurring).
32. Selman v. State, 406 P.2d 181 (Alaska 1965).
33. See the cases cited in nn. 34–39 and 41.
34. People v. Lowe, 660 P.2d 1261, 1271 (1983).
35. Gray v. State, 463 P.2d 897, 911–12 (Alaska 1970) (holding that two convictions for first-degree murder, and convictions for first- and second-degree murder, “could not be allowed to stand”).
36. Ubelis v. State, 384 So.2d 1294 (Fla. Ct. App. 1980); Franks v. State, 323 N.E.2d 221 (Ind. 1975).
37. State v. Gilroy, 199 N.W.2d 63, 68 (Iowa 1972) (citing 21 Am. Jur. 2d, Criminal Law § 546; C.J.S. Criminal Law § 1567(5)).
38. Loscomb v. State, 416 A.2d 1276, 1285 (Md. App. 1980). See also People v. Sparks, 266 N.W.2d 661, 665 (Mich. App. 1978) (“There was only one murder and hence one crime …”).
39. People v. Pitsonbarger, 568 N.E.2d 783 (Ill. 1990).
40. Ferguson v. Caldwell, 452 F.2d 1011 (6th Cir. 1971); McFadden v. United States, 395 A.2d 14 (D.C. App. 1978); People v. Miller, 412 N.E.2d 175 (Ill. App. 1980), cert. denied, 454 U.S. 871 (1981); People v. Leonti, 222 N.E.2d 591 (N.Y. Ct. App. 1966), cert. denied, 389 U.S. 1007 (1967).
41. Thacker v. United States, 599 A.2d 52 (D.C. Ct. App. 1991); People v. Mack, 473 N.E.2d 880 (Ill. 1984).
42. Loscomb, 416 A.2d at 1285.
43. Id. at 1286.
44. The act-token question is, of course, different from the act-type question, and counting violations is sometimes different from both act-type and act-token questions, as I seek to show. The Loscomb result is consistent with finding a single act-type; nonetheless, the court seemed to signal approval of two convictions of either act-type because two victims died in the car accident. Id.
45. Laws of the Earliest English Kings 11 (laws 46 & 47).
47. 284 U.S. at 302 (quoting Wharton’s Criminal Law § 34 (11th ed.)).
48. 1 Bishop 785, § 1061 (1). See also Comment, 7 Minn. L. Rev. 348, 349 (suggesting a “one-act” test that produces one murder when a single shot kills two victims because it “seems to conform to the spirit of the rule as to double jeopardy).
49. See Ashe v. Swenson, 397 U.S. 436 (1970).
50. Ciucci v. Illinois, 356 U.S. 571 (1958).
51. 2 Hale 245.
52. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218 (1952).
53. Friedland, 213.
54. Id. (quoting Blake, 45 Cr. App. R. 292, 295 (1961)).
55. Friedland, 205.
56. Brown, 432 U.S. at 169 n.8.
57. Moore agrees, finding “no legally usable answer to the question ‘How many acts?’, until we know what morally salient type of act is involved with a given statutory offense.” Moore, 385. Morally salient, on Moore’s account, is roughly what I mean by blameworthy. Id. at 385–90.
58. 432 U.S. at 163 nn. 1 & 2.
59. See Thomas, Unified Theory of Multiple Punishment, 15–22 & 37–44.
60. Id. at 41–44 & 90–93.
61. Prince v. United States, 352 U.S. 322, 329 (1957).
62. In re Snow, 120 U.S. 274, 283–85 (1887) (discussing Crepps v. Durden, Cowp. 640 (K.B. 1777)).
63. 432 U.S. at 169.
64. Id. at 169 n.8 (noting that hypothetical statute making each day of joyriding a different offense presents different case). See also Friedland, 217 & n.4 (citing examples of English statutes “which provide specifically for cumulative penalties, such as a certain penalty for each day that the offence continues”).
65. 223 U.S. 442 (1912).
66. Moore, 281–301.
67. 223 U.S. at 449 (emphasis added).
68. State v. Broder, 90 Mo. App. 169 (1901) (holding that each sale was a separate offense) (appeal involved only two convictions). Since there were no photocopy machines in 1901, one wonders how even an industrious prosecution produced 1,800 pieces of paper charging the beer sale violation—presumably, the prosecutor had a printer set type and print 1,800 copies.
69. Horack, 822.
70. 237 U.S. 625 (1915).
71. Id. at 629.
72. 20 Harv. L. Rev. 642 (1907).
73. Id. at 643.
74. 37 Harv. L. Rev. 912, 912. But see Johnson v. Commonwealth, 256 S.W. 388 (Ky. Ct. App. 1923) (holding that each hand is a separate double jeopardy offense); Comment, 12 Ky. L. Rev. 249, 250 (approving of Johnson and concluding that it is “in accord with the weight of authority”).
75. 1 Bishop 779, § 1053 (11).
76. 1 Bishop 789, § 1062.
77. 237 U.S. at 631 & 629.
78. 237 U.S. at 629.
79. Prince v. United States, 352 U.S. 322, 329 (1957).
80. Moore concedes that the individuation of intentions may be relevant to the same offense question but limits his analysis to action theory. Moore, at 305 n.1. Despite his concession that intent may play a role in individuating offenses, Moore later rejects the “same-intent” test as having any philosophical validity or manifesting double jeopardy policies in any useful way. Id. at 381–83 & 388–90.
81. Horack suggests that the cases do not support twelve larceny convictions for stealing a dozen eggs from a sack by twelve muscular contractions. Horack, 810.
82. The hypothetical is Heidi Hurd’s. Bishop noted that, whatever the English rule, the American rule is to find only one larceny if multiple items belonging to the same owner are taken at one time. 1 Bishop § 1061 (3). See also Note, 20 Harv. L. Rev. 642, 643 (arguing that the result is the same even if the items had different owners).
83. Moore, 389.
84. By “single intent,” I mean the thief formed a plan to steal two of X’s horses prior to stealing the first one. It would be different if the thief stole the first one and then decided to steal the second one, a mens rea that would justify finding two larcenies. I put “single intent” in quotations marks because I am aware of the difficulties inherent in dividing or quantifying intent. See Horack, 813 (“The ‘number of intents,’ both as an evidentiary and as a psychological problem, seems more for the conjurer than for the judges.”). See also chapter 5.
85. 284 U.S. at 302 (quoting Wharton’s Criminal Law sec. 34 (11th ed.)).
86. It is also seven larcenies on Moore’s view. He avoids the singularity of act-token here by finding multiple act-types.
87. If doubt exists that this imputed congressional intent is the way Congress would have answered the question about six mailbags in one spot, the rule of lenity resolves the question in favor of lenity. Because it is plausible to infer the intent to punish Ebeling’s conduct just once, and because that inference results in a less harsh treatment, it must be accepted.
88. Badders v. United States, 240 U.S. 391 (1916). See also Ex parte Henry, 123 U.S. 372 (1887) (holding that each mailing was a separate offense).
89. 240 U.S. at 394 (emphasis added).
90. 281 U.S. 202 (1930).
91. Id. at 204.
92. Bell v. United States, 349 U.S. 81 (1955).
93. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 224 (1952) (quoting Blockburger v. United States, 284 U.S. at 302, quoting Wharton’s Criminal Law §34 (11th ed.)).
94. Moore, 359.
95. See, e.g., Owens (criticizing the Alabama rule that a single act can give rise to only one conviction).
96. Moore, 365.
97. The Court contemplated this outcome in Ladner v. United States, 358 U.S. 169, 178 (1959) (dictum) (suggesting that but a single assault is committed if one shot wounded two federal officers).
98. Moore, 362.
99. See, e.g., State v. Pa. R.R., 9 N.J. 194 (1952).
100. Moore, 363–64 n.13.
101. Moore, 359.
102. Id. at 363. If there was any doubt about Moore’s premise in this case, it is dispelled in the next paragraph, where he summarizes the second hypothetical as “the killer who in fact kills two but only negligently risked death to one.” Id.
103. Id. at 362.
104. See, e.g., State v. Irvin, 603 S.W.2d 121 (Tenn. 1980) (overruling precedent to adopt rule that each dead body is a different homicide as long as the defendant had the requisite intent as to one of the victims); Vigil v. State, 563 P.2d 1344 (Wyo. 1977) (surveying jurisdictions applying multiple-victim rule).
105. Moore, 364–65.
106. 1 Bishop § 1061 (3). Horack agrees that this should be only one larceny. Horack, 810.
107. See Brickey, 1141 (concluding that, under the ancient law, “[p]roof of guilt was secondary to obtaining specific restitution,” while the modern crime of larceny manifests the “interest of the sovereign in suppressing theft and punishing wrongdoers”); id. at 1128 (“Instead of abolishing that ancient institution [of recovery], the crown created an alternative and strictly penal procedure” for the crime of larceny.).
108. I posed this hypothetical to Moore at a criminal law colloquium at the University of Pennsylvania law school in December 1995, and he agreed that it would have to be one million larcenies on his view.
109. See Cooper v. State, 595 P.2d 648 (Alaska 1979) (holding that five shots fired in the direction of three police officers can be three counts of assault only if the defendant intended to injure all three officers); People v. Bigsby, 367 N.E.2d 358 (Ill. App. 1977) (finding an intention to kill two victims and thus upholding multiple prosecutions based on single act); Jackson v. State, 492 A.2d 346 (Md. App. 1985) (multiple prosecutions for shooting at two police officers permissible only if defendant intended to harm each officer); Herron v. State, 805 P.2d 624, 627 (N.M. 1991) (statute did not evince legislative intent to punish each penetration of a single orifice if multiple penetrations occur “within sufficient temporal proximity” to show “a single criminal intent bent on a single assaultive episode”); People v. Warren, 1 Park. Crim. 338 (N.Y. 1832) (single act of poisoning two people will support two prosecutions if defendant intended to poison both).
110. This is the California Neal test, which, while on the right track, quickly sank beneath the troubled sea of metaphysics: what constitutes a “single objective”? See Johnson, Reflections on Neal.
111. See Sigler, 107 (single offense if single act and single intent). For a critique of the thoroughgoing single intent test, see Moore, 305 n.1, 381–83, 389 n.50; Philip Johnson, Reflections on Neal, 369 (noting the “inconsistencies and ambiguities inherent in” the “single intent and objective formula”). See also Ho-rack, 812; Note, 32 Mich. L. Rev. 512, 516 (1932); Note, Minn. L. Rev. 522, 552 (1940).
112. Moore, 381.
113. United States v. Daughtery, 269 U.S. 360 (1926).
114. See H.R. Rep. No. 98-1030, 98th Cong. 2d Sess., reprinted in 1984 U.S. Code Cong. & Ad. News 3490 (concluding that two of the Court’s decisions “negated the section’s use” in “precisely the type of extremely dangerous offenses for which a mandatory punishment for the use of a firearm is the most appropriate”). I discuss these cases in chapter 6.
1. The legal-realist view does not use a test at all; the identity required by Amar and Marcus is not a plausible alternative; Scalia is correct that a “same transaction” or “same conduct” definition fails to come close to defining “same offense.” Moore’s test also uses blameworthy (“morally salient,” in his terms) acts to construct a same-offense test. Moore, 385–90.
3. Note, 7 Brooklyn L. Rev. 79, 82. See also Note, 65 Yale L.J. 339, 349.
4. For a few examples, see Friedland, 110 (Blockburger “totally inadequate”); Carroway, 108 (“deficiencies” of Blockburger “are manifold”); Fisher, 87 (“mistake” to rely entirely on Blockburger); McElroy, 392 (noting the mechanical application of “an abstract formula at the sacrifice of meaningful constitutional and factual analysis”); Note, 10 New Mexico L. Rev. 195, 204 (Blockburger “virtually annuls the constitutional guarantee against double jeopardy”); Note, 19 U.C.L.A. L. Rev. 804, 817 (Blockburger “entirely inappropriate”); Comment, 75 Yale L.J. 262, 274 (“insensitive to the policies of the double jeopardy clause”).
5. Mead, 874.
6. Haddad & Mullock, 533.
7. Kirchheimer, 58 Yale L.J. 513.
8. Comment, 2 De Paul L. Rev. 263, 266; Comment 21 La. L. Rev. 615, 622.
9. See discussion later in this chapter.
10. 328 U.S. 781 (1946).
11. Id. at 788.
12. 609 A.2d 1280 (N.J. 1992).
13. Because the statutes are cited in the Preciose opinion, 609 A.2d at 1281–82, I see no need to cite to each statute as I discuss the particular New Jersey offense.
14. Milanovich v. United States, 365 U.S. 551 (1961).
15. 397 U.S. 400 (1970), discussed in chapter 7.
16. Armed robbery, of course, requires a distinct element from any assault offense—theft.
17. 609 A.2d at 1282.
18. The method of act-type inclusion used in this analysis is to examine the way an offense is charged if the statute sets out alternative means of proof. So, for example, armed robbery charged as threatening bodily injury includes aggravated assault (which requires attempted bodily injury), even though armed robbery can be proved in other ways. As we see later in this chapter, the Court has used this “specific” approach to statutes written in the alternative in compound-predicate cases. As a test, I applied a “specific” version of Blockburger to the Preciose offenses, but only three counts dropped out, leaving seventeen different offenses. The reader is spared the details, which occupy several paragraphs. The apt comparison is, however, the one used in the text—nonspecific Blockburger (twenty offenses committed) and specific act-type inclusion (six offenses committed)—because the Court has not made clear whether it will extend the specific approach outside the compound-predicate context while I explicitly adopt use of the “specific” approach to act-type inclusion.
19. 469 U.S. 105 (1985).
20. 18 U.S.C. § 1001.
21. The federal courts have narrowly construed “trick, scheme, or device” to require concealment by affirmative act. 449 U.S. 108 n.5 (citing United States v. London, 550 F.2d 206 (5th Cir. 1977)). This construction supports viewing “trick, scheme, or device” as part of the act-type.
22. Bell v. United States, 349 U.S. 81 (1955). See also United States v. Universal C.I.T. Credit Corp., 344 U.S. 224 (1952).
23. Prince v. United States, 352 U.S. 322 (1957).
24. 352 U.S. 322 (1957).
25. For a more detailed discussion of Prince, see Thomas, Unified Theory of Multiple Punishment, 37–42.
26. 424 U.S. 544 (1976). The Court also held that entering the bank with intent to rob it and possession of the proceeds of the robbery were included offenses of the bank robbery. The first holding follows directly from Prince. The second follows from our understanding of “continuous” offenses in chapter 5. The act-type of possession continues indefinitely, and thus it does not matter that the robbers continued to possess the proceeds days, weeks, or months later. Though Gaddis was unclear about the precise remedy required when the four convictions carried concurrent sentences, this issue was later resolved by United States v. Ball, 470 U.S. 856 (1985). A single offense can support only a single con viction; in a Gaddis situation, three of the convictions must be vacated. For a more detailed discussion of this double jeopardy problem, see Thomas, Sentencing Problems.
27. 435 U.S. 6 (1978).
28. For a more detailed discussion of Simpson, see Thomas, Unified Theory of Multiple Punishment, 62–65.
29. Actually, I know Moore rejects that equation because he said so during a December 12, 1995, criminal law workshop at the University of Pennsylvania.
30. 445 U.S. 684 (1980).
31. 433 U.S. 682 (1977) (per curiam).
32. 445 U.S. at 708 (Rehnquist, J., dissenting).
33. Whalen, 445 U.S. at 694.
34. 509 U.S. 688 (1993); see chapter 2.
35. Whalen, 445 U.S. at 713 (Rehnquist, J., dissenting). Rehnquist reached this result by applying Blockburger to the felony-murder statute as a whole, rather than to specific ways of committing felony murder. “One can commit felony murder without rape and one can rape without committing felony murder.” Id. at 710.
36. Note, 9 Buffalo L. Rev. 378, 380.
37. 459 U.S. 359 (1983).
38. 694 S.W.2d 934, 937 (Tenn. 1985). See also People v. Williams, 195 Cal. App. 3d 398 (1987), cert. denied, 488 U.S. 832 (1988); State v. Greco, 579 A.2d 84 (Conn. 1990); State v. Enmund, 476 So.2d 165 (Fla. 1985); State v. Gonzales, 783 P.2d 1239 (Kan. 1989); State v. Close, 623 P.2d 940 (Mont. 1981); Talancon v. State, 721 P.2d 764 (Nev. 1986); State v. McCovey, 803 P.2d 1234 (Utah 1990); Fitzgerald v. Commonwealth, 292 S.E.2d 798 (Va. 1982). For the opposing view of relevant legislative intent, see Cook v. State, 841 P.2d 1345 (Wyo. 1992).
39. Whalen, 445 U.S. at 710 (Rehnquist, J., dissenting) (emphasis added) (quoting D.C. Code §22-2401 (1973)).
40. For the same reason, my account diverges from the earlier case that reached the same result on state charges of robbery and felony murder. Harris v. Oklahoma, 433 U.S. 682 (1977) (per curiam).
41. Schad v. Arizona, 501 U.S. 624, 639 (1991) (plurality). Though only four members of the Court joined this part of the Court’s opinion, the other five did not disagree with the plurality’s reading of felony murder. Other issues divided the Court. Schad is discussed in more detail in chapter 1.
42. Id. at 640.
43. 21 U.S.C. § 848(b)(2).
44. See Garret v. United States, 471 U.S. 773 (1985).
45. 18 U.S.C. § 1962 et seq.
46. Thomas, RICO Prosecutions, 1377–86.
47. Poulin, Complex Criminal Cases.
48. 397 U.S. 436 (1970), discussed in chapter 7.
49. 432 U.S. at 166 n.6 (referring to Ashe v. Swenson, 397 U.S. 436 (1970)).
50. Ashe, at 464 (Burger, C.J., dissenting) (arguing that Blockburger is satisfied because the second charge required proof of a fact that the first did not—robbery of a different person).
52. 120 U.S. 274 (1887), discussed in chapter 3.
53. Id. at 285.
54. 450 U.S. 333 (1981).
55. 317 U.S. 49 (1942).
56. 471 U.S. at 784.
57. 317 U.S. at 50 n.1.
58. Perkins & Boyce, 683.
59. Theis, 306.
60. Id. at 303.
61. If two conspiracies define different blameworthiness, it must be true that conspiracy and a substantive offense define different blameworthiness. The Court has long held this to be true. United States v. Bayer, 331 U.S. 532 (1947). A plausible rule-of-lenity challenge did not cause the Court to change its mind on this point. Callanan v. United States, 364 U.S. 587 (1961).
62. 273 U.S. 1, 11 (1927).
63. United States v. Michener, 331 U.S. 789 (1947) (per curiam).
64. Heflin v. United States, 358 U.S. 415 (1959).
65. Milanovich v. United States, 365 U.S. 551 (1961); cf. id. at 558 (Frankfurter, J., dissenting) (while disagreeing that an accomplice should benefit, noting “hornbook law that a thief cannot be charged with committing two offenses—that is, stealing and receiving the goods he has stolen”). United States v. Gaddis, 424 U.S. 544 (1976), was self-evident after Milanovich; robbery and possession of proceeds of robbery are the same offense.
66. 5 Wheat. 1 (1820).
67. Id. at 72 (Story, J., dissenting). Story did not include the Double Jeopardy Clause as an offended principle, probably because of his view that the state penalty did not put the defendant’s “life or limb” in jeopardy. See chapter 4.
68. Houston, 5 Wheat. at 23.
69. Id. at 33. Johnson did not mean that the same offense could be punished by both the state and federal governments; he saw that as restrained by the Double Jeopardy Clause in appropriate cases. Id. at 34. Obviously, he did not think the case before the Court was an appropriate case for double jeopardy protection, presumably because the penalty was minor and thus the defendant’s “life or limb” was not in jeopardy.
70. See Fox v. Ohio, 5 How. 410 (1847) (holding that the state statute was not unconstitutional because of the possibility that prohibited dual punishment might arise); see also Moore v. Illinois, 55 U.S. (14 How.) 13 (1852); Wilkes v. Dinsman, 48 U.S. (7 How.) 89 (1849).
71. Abbate v. United States, 359 U.S. 187 (1959). See also United States v. Lanza, 260 U.S. 377 (1922).
72. Bartkus v. Illinois, 359 U.S. 121 (1959). Of course, Bartkus was decided before the Court clearly established the collateral estoppel principle in Ashe v. Swenson, 397 U.S. 436 (1970)—see chapter 7—but if the very same crime can be reprosecuted, as it can under Bartkus, there would be no reason to treat a collateral estoppel bar differently.
73. Heath v. Alabama, 474 U.S. 82 (1985).
74. United States v. Wheeler, 435 U.S. 313 (1978).
75. Waller v. Florida, 397 U.S. 387 (1970).
76. Friedland, 426.
77. See, e.g., Amar & Marcus; Cassell; Guerra; Herman, Dual Sovereignty; Hoffman; McElroy.
78. Note, 102 Yale L.J. 281.
79. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 23 (1820).
80. Id.
81. See Moore, 4.
82. See 4 Blackstone’s Commentaries *335.
83. Friedland, 411. This issue does not appear to arise very often in Australia because federal crimes are largely “conducted in State or Territory courts, using the criminal procedure of the State or Territory.” Comment, 33 Am. Crim. L. Rev. 123, 152 (quoting Deborah Sweeney & Neil Williams, Commonwealth Criminal Law 38 (1990)). To the extent it arises when states prosecute first, it may be that the Vandercomb common law pleas would bar the second trial. Id.
84. Waller v. Florida, 397 U.S. 387 (1970).
85. United States v. Wheeler, 435 U.S. 313 (1978).
86. Pryor v. Coleman, 97 U.S. (7 Otto) 509 (1878).
87. Id. at 518–19.
88. See Hoffman. Not all scholars want this outcome, of course. Susan Herman steadfastly rejects any form of dual sovereignty exception, but she also rejects legislative intent as having any relevance on the scope of double jeopardy protection. Herman, Triple Play; Herman, Dual Sovereignty. See also Cassell (arguing for an originalist interpretation that would bar all dual sovereign prosecutions).
89. See Note, 102 Yale L.J. 281, 294 n.94 (listing twenty-three state statutes); see also Colo. Rev. Stat. Ann. 18-1-103 (West 1994); Kansas Crim. Code Ann. 21-3108(3) (Vernon 1993); Nevada Rev. Stat. Ann. 171.070 (Michie 1993) (three states not listed in the student note). This is a total of twenty-six states.
90. See, e.g., Alaska Stat. sec. 12.20.010 (“act”); Cal. Penal Code sec. 656 (“act or omission”); Ind. Code sec. 35-41-4-5 (“same conduct”); Mont. Code Ann. sec. 46-11-504 (“same transaction”).
91. 359 U.S. 121 (1959).
92. See United States Attorney’s Manual 9-2.142 (IV) (revised December 14, 1994).
93. Id. at I.C.
94. Abbate v. United States, 359 U.S. 187 (1959), decided on March 30, 1959. The federal policy was announced on April 7, 1959. See 27 U.S.L.W. 2509 (April 7, 1959). The first Supreme Court case to address this policy was Petite v. United States, 361 U.S. 529 (1969), dismissing a federal prosecution when the Department of Justice determined it had been brought in violation of the administrative policy, which is now often called the Petite policy. See also Rinaldi v. United States, 434 U.S. 22 (1977), holding that a judge could not deny a Department of Justice motion to dismiss a prosecution brought in violation of the Petite policy.
95. Guerra, Myth of Dual Sovereignty.
96. Task Force Meeting of April 16, 1994 (attended by Harry Litman, Deputy Assistant Attorney General). The Task Force ultimately called, instead, for tightening the substantive and procedural requirements of the policy. To this recommendation, the Department of Justice responded warmly, as it had already begun a review of the administrative policy. When the revised policy was issued on December 14, 1994, it incorporated many of the recommendations of the Task Force and was an improvement over the vague commands of the previous policy statement. To say that it is improved is not, of course, to say that prosecutorial discretion has been removed or that judicial review has been imposed.
97. 420 U.S. 770 (1975).
98. 18 U.S.C. § 371 and 18 U.S.C. § 1955, respectively.
99. Id. at 773–74 n.5, quoting R. Anderson, Wharton’s Criminal Law and Procedure § 89 (1957).
100. For further discussion of Iannelli and Wharton’s Rule, see Thomas, RICO Prosecutions, 1424–30; Comment, 71 Nw. U.L. Rev. 547.
101. 435 U.S. 6 (1978).
102. The Court also cited adoption of the House version rather than the Senate version. The sponsor of the Senate version had stated that his version would permit imposition of both penalties. Id. at 14. The Court also cited the rule of construction to give “precedence to the terms of the more specific statute where a general statute and a specific statute speak to the same concern, even if the general provision was enacted later.” Id. at 15–16. See also Busic v. United States, 446 U.S. 398 (1980) (applying Simpson to another offense that had its own enhanced sentencing provisions).
103. See discussion earlier in this chapter.
104. Comment, 33 Am. Crim. L. Rev. 123, 149.
105. H.R. Rep. No. 98-1030, 98th Cong. 2d Sess., reprinted in 1984 U.S. Code Cong. & Ad. News 3490 (concluding that the Simpson doctrine “negated the section’s use” in “precisely the type of extremely dangerous offenses for which a mandatory punishment for the use of a firearm is the most appropriate”).
106. See chapter 2 for a defense of the unity of same offense in different procedural contexts.
107. 471 U.S. 773, 778 (1985).
108. The Court also offered a fact-dependent reason to permit a second trial, holding that Garrett had continued his CCE activity beyond the date of the predicate felony trial, thus engaging the “subsequent-conduct” exception to double jeopardy protection. In a sense, the Court viewed the subsequent conduct as tantamount to waiver.
109. Id. at 788–89.
110. Id. at 789.
111. Reading the predicate as proof of mens rea, there is no common act-type; thus they are not the same offense. My act-type account disagrees with Jeffers v. United States, 432 U.S. 137 (1977). The Court found that Congress did not intend to create cumulatively punishable offenses in CCE and conspiracy to distribute narcotics. The Court could cite to no specific evidence of congressional intent, relying instead on vague notions about the “comprehensive penalty structure” of CCE that allowed “little opportunity for pyramiding of penalties” from other provisions of the same congressional act. Id. at 156.
112. 357 U.S. 386 (1958).
113. Id. at 391. See also Harris v. United States, 359 U.S. 19 (1959) (applying the Gore analysis).
114. IRC 4705(a) & 4704(a) (1954), respectively.
115. 21 U.S.C. 174 (1952).
116. 357 U.S. at 394 (Warren, C.J., dissenting).
117. 459 U.S. 359 (1983).
118. 459 U.S. 359 (1983).
119. Id. at 368.
120. Id. at 369.
121. Id. at 366.
122. Id. at 369 (Marshall, J., dissenting).
1. See Amar & Marcus, 31.
2. Friedland, 121 (quoting 1 Chitty, Criminal Law 454). See also McLaren, 203–4.
3. Glanvill 96 (Book VIII, 3). Glanville’s Treatise was the earliest English treatise, published around 1187, id. at xi (dating treatise at 1187–89).
4. 2 Pollock & Maitland, 519.
5. Glanvill, 100 (Book VIII, 8–9).
6. See, e.g., Rex v. Duchess of Kingston, 20 How. State Tr. 355, 542 (1766); Kirchheimer, 532; Vestal & Coughenour, 698–99. Friedland cites other sources. Friedland, 154.
7. Id. at 155.
8. Obviously, a defendant cannot assert the double jeopardy or collateral estoppel rights of another defendant. See Standefer v. United States, 447 U.S. 10 (1980).
9. See Paulsen.
10. 20 How. State Tr. 355 (1766).
11. Id. at 538.
12. 16 U.S. (3 Wheat.) 246 (1818).
13. Id. at 319.
14. Id. at 320.
15. 20 Howell’s State Tr. at 372.
16. 186 U.S. 413 (1902).
17. Whether Hotema’s hung jury should constitute a jeopardy bar is considered in chapter 8.
18. 213 U.S. 115 (1909).
19. Id. at 124 (emphasis in original).
21. 242 U.S. 85 (1916).
22. Id. at 87.
23. Id.
24. Id. at 88.
25. 356 U.S. 464, 471 (1958).
26. 397 U.S. 436, 445 (1970).
27. See United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984).
29. For some speculations about the distribution of criminal verdicts along a spectrum of 0 percent guilty to 100 percent guilty, see Thomas & Pollack, Rethinking Guilt, 21–23. We speculated that the distribution might be normal and centered around a mean between 60 percent and 80 percent. The percentage of acquittals is, of course, inversely related to the guilty percentage. A mean of guilty percentage near 60 percent suggests that almost as many acquittals are below 50 percent as are above 50 percent.
30. 116 U.S. 427 (1886). Coffey was decided one year prior to the Court’s first same-offense case, In re Snow, 120 U.S. 274 (1887), and both were written by Justice Blatchford. Snow is discussed in chapter 3.
31. Id. at 443.
33. 404 U.S. 55 (1971) (per curiam).
34. Id. at 56–57. See also Turner v. Arkansas, 407 U.S. 366 (1972) (holding that an acquittal for murder barred prosecution for robbery committed during the same episode).
35. Simpson v. Florida, 403 U.S. 384 (1971).
36. 469 U.S. 57 (1984).
37. Id. at 68. To the same effect is Dunn v. United States, 284 U.S. 390, 394 (1931), in which Justice Holmes wrote, “That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” See also Harris v. Rivera, 454 U.S. 339 (1981) (per curiam) (holding permissible inconsistent verdicts as between two defendants); Friedland, 146–53 (English rule the same).
38. Friedland, 143.
39. For an extended argument that fairness requires an exacting examination of inconsistent verdicts, see Mueller. Even were I to agree with Mueller about fairness, my double jeopardy account is based on blameworthiness. If an outcome is unfair but tells us nothing about the jury’s view of blameworthiness, my account would not find any bar to affirming that outcome.
40. Poulin, Collateral Estoppel, 44–48.
42. Jill Hunter, 12.
44. For an analysis of res judicata and dual sovereignty that defends the same-parties requirement without the hesitation shown in the text, see Paulsen.
45. Friedland, 416–17.
46. Id. at 417.
47. Bartkus v. Illinois, 359 U.S. 121 (1959). The defendant was acquitted of federal bank robbery and then tried for the same bank robbery in state court. The Court did not mention collateral estoppel, which had not then been held applicable to the states, but the analysis focuses on the separateness of the two systems of law and procedure.
48. Amar & Marcus, 31.
1. Two of the four pleas in bar were former acquittal and former conviction. The other two pleas in bar, former attaint and former pardon, required a conviction as a triggering mechanism.
2. Rex v. Perkins, 90 Eng. Rep. 1122 (K.B. 1698).
3. Sigler, 83–84.
4. 22 U.S. (9 Wheat.) 579 (1824).
5. Kepner v. United States 195 U.S. 100 (1904).
6. Smalis v. Pennsylvania, 476 U.S. 140, 145 (1986).
7. Strazzella, Prosecution Appeals.
8. Strazzella, at 20 (citing Wyoming as a “leading example”).
9. For a discussion of a case involving these facts, see Poulin, Judicial Accountability; Rudstein, Fraudulently Obtained Acquittal.
10. Poulin, Judicial Accountability, 990.
11. Id. at 989.
12. Rudstein, Fraudulently Obtained Acquittal, 651.
13. 4 Blackstone’s Commentaries *335.
14. 437 U.S. 54 (1978).
15. Lee v. United States, 432 U.S. 23 (1977).
16. See also Fong Foo, 369 U.S. 141 (1962). For an argument that the Court’s double jeopardy jurisprudence implicitly accepts even an acquittal produced by fraud as a bar to further proceedings, see Rudstein.
17. Westen & Drubel, 165.
18. In Sanabria v. United States, 437 U.S. 54 (1978), the trial judge directed the verdict of acquittal. In this role, however, the trial judge is operating as the fact finder.
19. Westen, 1008.
20. For a discussion of the differences between former attaint and former conviction, see chapter 2.
21. 4 Blackstone’s Commentaries *390.
22. Id. at 391.
23. Id. at 393.
24. Id.
25. Friedland’s discussion of this point is excellent, and he recommends adopting the United States rule. Friedland, 221–74.
26. 377 U.S. 463 (1964).
27. Id. at 466.
28. 163 U.S. 662 (1896).
29. Westen & Drubel, 150–51 n.303 (citing United States v. Tateo, 377 U.S. 463, 466 (1964)).
30. To be distinguished from codefendant John C. Ball.
31. If anything, the English authorities favored the finality of convictions over acquittals. See chapter 9.
32. Ball, 163 U.S. at 672.
33. Id. at 669–70 (brackets added).
34. Thomas, Elegant Theory.
35. See Murphy v. Massachusetts, 177 U.S. 155, 158 (1900) (discussing Ball and noting that Murphy “set the proceedings in question in motion” that led to reversal). See also Montana v. Hall, 481 U.S. 400, 404 (1987) (distinguishing Brown v. Ohio from a case in which the defendant obtained an appellate reversal because Brown “did not overturn the first conviction; indeed, he served the prison sentence assessed as punishment for that crime”); Hill v. Texas, 316 U.S. 400, 406 (1942) (noting that a defendant “whose conviction is reversed by this Court need not go free if he is in fact guilty, for Texas may indict and try him again”) (reversal for denial of equal protection in selection of grand jury members).
36. Although Bishop states that double jeopardy should bar a new trial after an appellate reversal, he seems to assume that the convicted defendant was “entitled to an acquittal.” 1 Bishop, 772, § 1047. Given that assumption, of course, the reversal could be viewed as an acquittal equivalent, as the Court did many years later in Burks v. United States, discussed in § 8.03 [D].
37. For a discussion of the Westen-Drubel hierarchy, see chapter 3.
38. See discussion later in this chapter.
39. See Richman, Bargaining About Future Jeopardy.
40. Tollett v. Henderson, 411 U.S. 258 (1973).
41. Menna v. New York, 423 U.S. 61 (1975).
42. The only other similar error admitted to this subset to date is a due process violation based on the prosecutor’s motives for initiating a second trial. Blackledge v. Perry, 417 U.S. 21 (1974).
43. The superfluity must be ascertainable from the face of the record—that is, a court must be able to rule from the record whether the offenses in question are the same offense. If the guilty plea defendant’s claim requires further proceedings to resolve, the normal rule applies and the guilty plea waives the double jeopardy claim. This exception was recognized in United States v. Broce, 488 U.S. 563 (1989), where the defendants pleaded guilty to two separate conspiracy indictments and then later sought to vacate the convictions and sentences under one indictment on the ground that there was but one conspiracy for double jeopardy purposes. The Court held that the defendants’ double jeopardy challenge was foreclosed by their guilty pleas.
44. 483 U.S. 1 (1987).
45. Id. at 9.
46. See Thomas, Elegant Theory, 851–52.
47. I assume here that Adamson was accountable for the breach. The Supreme Court was divided on that issue.
48. 355 U.S. 184 (1957), overruling Trono v. United States, 199 U.S. 521 (1905).
49. Ohio v. Johnson, 467 U.S. 493 (1984).
50. Figuring out which conviction to vacate is not always as easy as it sounds. In most cases, the appellate court vacates the lesser-included offense, which almost always carries a lesser sentence. In this way, the length of the sentence imposed by the trial court is not changed unless the sentences are consecutive. But even when sentences are concurrent, problems arise if the “lesser” offense carries a greater punishment. See, e.g., Sours v. State, 593 S.W.2d 208, 223 (Mo. 1980) (vacating the “greater” conviction, which carried a lesser sentence).
51. These variations, and others, are discussed in Thomas, Sentencing Problems.
52. Ball v. United States, 470 U.S. 856 (1985). The effect of Ball on the multiple punishment sentencing doctrine is considered in more detail in Thomas, Sentencing Problems.
54. For a full discussion, see Thomas, Sentencing Problems.
55. These facts are a simplified version of the facts in United States v. Henry, 709 F.2d 298 (5th Cir. 1983) (en banc).
56. The due process issue is whether rearranging the concurrent sentences into consecutive sentences on the remaining valid convictions violates the “retaliatory motivation” doctrine of North Carolina v. Pearce, 395 U.S. 711 (1969). The difficulty of this due process/double jeopardy issue is suggested by the division of the Fifth Circuit Court of Appeals in the case that suggested the hypothetical. United States v. Henry, 709 F.2d 298 (5th Cir. 1983) (en banc). The plurality opinion reversing conviction C, with a windfall for the defendant, was joined fully by five judges. Two judges filed separate opinions “specially concurring.” Six judges joined the dissent, arguing that double jeopardy and due process permitted resentencing.
57. North Carolina v. Pearce, 395 U.S. 711 (1969).
58. Pearce held that the Due Process Clause provided a presumption of judicial vindictiveness unless the new sentence is based on “identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Id. at 726. This due process aspect of Pearce was steadily eroded until, in Alabama v. Smith, 490 U.S. 794 (1989), the Court overruled the presumption of vindictiveness, while still allowing for actual proof of vindictiveness.
59. 395 U.S. at 721 (emphasis deleted).
60. 115 S.Ct. 2199 (1995).
61. United States v. Watts, 117 S.Ct. 633, 636 (1997) (characterizing the holding in Witte).
62. Gryger v. Burke, 334 U.S. 728, 732 (1948). The earliest case to permit this form of sentence enhancement was Moore v. Missouri, 159 U.S. 673 (1895). See also Graham v. West Virginia, 224 U.S. 616 (1912); McDonald v. Massachusetts, 180 U.S. 311 (1901).
63. 117 S.Ct. 633 (1997).
64. The Court has never held what I say in the text, though it is the only sensible way to put together the mistrial cases and the dismissal cases. The Court did explicitly hold, in United States v. Scott, 437 U.S. 82 (1978), and Lee v. United States, 432 U.S. 23 (1977), that the characterization of the outcome as a dismissal does not, by itself, create a jeopardy bar to another trial. I argue that any substantive distinction between mistrial and dismissal is superficial and should be ignored. Some mistrials can be acquittal equivalents just as surely as some dismissals.
66. 7 How. St. Tr. 79 (1678).
67. Id. at 82.
68. Id. at 86.
69. Id. at 120.
70. Id. at 585–86.
71. Id. at 316–17 (rejecting the jeopardy plea “because there was no condemnation or acquittal”).
72. The trial judge intimated that the evidence was sufficient in quantity, the only defect being the technical requirement of two witnesses. Nonetheless, under the substantive law of England, the only verdict possible was acquittal. Thus, whether Fenwick and Whitebread were factually innocent, they were legally entitled to an acquittal.
73. 355 U.S. 184 (1957), overruling Trono v. United States, 199 U.S. 521 (1905).
74. Brantley v. Georgia, 217 U.S. 284 (1910) (per curiam), had earlier rejected this argument as “absolutely without merit,” though the Court did not bother to state why it was meritless. Brantley was decided before the Court extended the Double Jeopardy Clause to the states, and part of the defendant’s argument was that the Supreme Court should overrule the state court construction of the Georgia Constitution. Thus, the basis for Brantley may simply have been respect for state courts.
75. 1 Bishop 745, § 1004.
76. Price v. Georgia, 398 U.S. 323 (1970) (defendant convicted of same lesser-included crime at both trials; held, second trial violated double jeopardy because he was in jeopardy of greater offense, of which he had been implicitly acquitted).
77. 449 U.S. 117 (1980).
78. Id. at 137.
80. Arizona v. Rumsey, 467 U.S. 203 (1984); Bullington v. Missouri, 451 U.S. 430 (1981). Compare Poland v. Arizona, 476 U.S. 147 (1986) (no double jeopardy verdict occurs when appellate court overrules trial court’s basis for death penalty and later affirms death penalty on grounds that trial court first rejected).
81. 420 U.S. 358, 370 (1975).
82. 355 U.S. 184, 187–88 (1957).
83. 437 U.S. 82, 100–101 (1978) (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)).
84. Id. at 86–87. The “vastly increased exposure” to double jeopardy issues resulted from a change in the Act authorizing federal appeals. Congress shifted in 1971 from an intricate statutory formulation to a rule permitting appeal in all cases “except no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.” Id. at 85. This development, naturally, “shifted the focus of the debate from issues of statutory construction to issues as to the scope and meaning of the Double Jeopardy Clause.” Id.
85. Id. at 87.
86. Id. at 95–96.
87. Id. at 97 (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977) (brackets added by the Court in Scott)). Justice Brennan, in dissent, argued that the distinction between acquittal equivalents and other dismissals favorable to the defendant cannot be maintained. While close cases will of course exist, I disagree with Brennan that the distinction is any more difficult to maintain than any of the countless others that exist in law.
88. 420 U.S. 332 (1975). See also United States v. Morrison, 429 U.S. 1 (1976).
89. See Fed. R. Crim. P. 29(c). Dismissals after verdict are rare because the judge will have had an opportunity to rule on the underlying issues prior to verdict. If the judge rules against the defendant at that earlier point, there is little reason to expect a different outcome after the jury has returned a verdict of guilty.
90. The Supreme Court has suggested as much. See United States v. Scott, 437 U.S. 82, 92 n.7 (1978); United States v. Jenkins, 420 U.S. 358, 365 (1975). See also Shellenberger & Strazzella, 157–59.
91. Srazzella, 21–27.
92. State v. Avcollie, 384 A.2d 315 (Conn. 1977), involving the same statute that the Court approved in Palko v. Connecticut, 302 U.S. 319 (1937). See chapter 9.
93. 437 U.S. 1 (1978).
94. 163 U.S. 662 (1896), discussed in chapter 8.
95. The trial judge can return a not guilty verdict in bench trials or, if the rules of procedure permit it, in response to a motion for directed verdict of acquittal.
96. 361 U.S. 416 (1960).
97. Compare Hudson v. Louisiana, 450 U.S. 40 (1981) (legally insufficient evidence constituting a jeopardy bar) with Tibbs v. Florida, 457 U.S. 31 (1982) (finding no jeopardy bar in legally sufficient evidence which is nonetheless against the weight of the evidence).
98. Tibbs v. Florida, 457 U.S. 31, 51 (1982) (White, J., dissenting) (joined by Brennan, Marshall, and Blackmun, JJ.).
99. Lockhart v. Nelson, 488 U.S. 33 (1988). The Court upheld a sentence that required four prior felony convictions even though one of the convictions had been pardoned; the judge considered the pardoned conviction because the defense did not object to it. Once the pardon was proven, however, only three convictions could be used under state law, and the defendant raised an insufficient evidence challenge to the sentencing. The Court held that the state could introduce evidence of another conviction on resentencing because Burks did not apply to bar further action.
100. Id. at 41–42. There should be an exception to this principle when the prosecutor intentionally introduces tainted evidence, and the error is not discovered until after conviction. Here, I agree with a commentator who argues that double jeopardy should forbid a second trial if, with the tainted evidence excluded, insufficient evidence remains to support the conviction. Note, 94 Mich. L. Rev. 1346, 1363. As the commentator correctly concludes in the cases of intentional prosecutorial misconduct, the “appropriate presumption … is that the prosecutor had no equivalent evidence of equivalent value to introduce at trial.” Id. at 1366.
101. 615 A.2d 321 (Pa. 1992).
102. Poulin, Limits of Double Jeopardy.
103. Poulin, Limits of Double Jeopardy, 629.
104. 372 U.S. 734 (1963). The defendant also won United States v. Jorn, 400 U.S. 470 (1970) (plurality). The losing mistrial cases are Richardson v. United States, 468 U.S. 317 (1984); Oregon v. Kennedy, 456 U.S. 667 (1982); Arizona v. Washington, 434 U.S. 497 (1978); Dinitz v. United States, 424 U.S. 600 (1976); Illinois v. Somerville, 410 U.S. 458 (1973); Gori v. United States, 367 U.S. 364 (1961); Wade v Hunter, 336 U.S. 684 (1949); Lovato v. New Mexico, 242 U.S. 199 (1916); Keerl v. Montana, 213 U.S. 135 (1909); Dreyer v. Illinois, 187 U.S. 71 (1902); Thompson v. United States, 155 U.S. 271 (1894); Logan v. United States, 144 U.S. 263 (1892); Simmons v. United States, 142 U.S. 148 (1891); United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824).
105. 1 Bishop 768–69, §§ 1037–40.
106. 1 Bishop 768, § 1037.
107. 1 Bishop 753, § 1016.
108. Perez, 22 U.S. (9 Wheat.) at 580.
109. See Comment, 69 Nw. U.L.Rev. 887, 893 (1975).
110. See, e.g., Note, 15 Am. Crim. L. Rev. 169, 189 (noting lack of “predictability” of mistrial standard); Note, 49 N.Y.U. L. Rev. 937, 948 (noting that “manifest necessity” standard “does mightily favor the interest of the state in prosecuting criminals when balanced against the rights of the accused”); Comment, 69 Nw. U.L. Rev. 887, 904 (noting that “ambiguity” of “manifest necessity” standard “has permitted the evolution of two distinct standards—standards which may give opposite results when applied to the same situation”).
111. Schulhofer, 491.
112. 372 U.S. 734 (1963).
113. 410 U.S. 458 (1973).
114. Id. at 469.
115. The Court’s conclusion about the error seems right; why would a prosecutor intentionally create uncorrectable error in the indictment in order to preserve the option to move for a mistrial? If the trial proceeds to the prosecutor’s liking, the resulting conviction is still automatically reversible.
116. 456 U.S. 667 (1982).
117. See State v. Kennedy, 619 P.2d 948, 949 (Or. App. 1980)
118. 456 U.S. at 669.
119. Id. at 670.
120. Id. at 676.
121. Id. at 688 (concurring in the judgment). For other criticism of the Kennedy test, see Ponsoldt, 94–100.
122. 456 U.S. at 689 (Stevens, J., concurring in the judgment) (joined by Brennan, Marshall, and Blackmun, JJ.). This is similar to the standard articulated in dicta in Dinitz v. United States, 424 U.S. 600, 611 (1976) (whether the prosecutor engaged in tactics in bad faith to goad the defendant into requesting a mistrial or to prejudice his prospects for an acquittal).
123. See 456 U.S. at 680 (Powell, J. concurring) (noting this difficulty and arguing that a reviewing court should “rely primarily upon the objective facts and circumstances of the particular case”).
124. Illinois v. Somerville, 410 U.S. 458, 469 (1973).
125. Downum, 372 U.S. at 737–38 (quoting Cornero v. United States, 48 F.2d 69, 71 (9th Cir. 1931)).
127. 400 U.S. 470 (1971) (plurality). See Illinois v. Somerville, 410 U.S. 458, 469 (1973) (characterizing conduct of trial judge in Jorn as “erratic”).
128. 400 U.S. at 472–73.
129. Id. at 473.
130. Id. at 487.
131. Id. at 488 (Black, J. & Brennan, J., concurring in the judgment).
132. Id. at 478 n.7.
133. Id. at 485.
134. 344 U.S. 424 (1953).
135. Id. at 425.
136. Id. at 426.
137. Id. at 427, quoting Palko v. Connecticut, 302 U.S. 319, 328 (1937).
138. Id. at 442 (Douglas, J., dissenting).
139. Though the Court was using the two unhelpful standards I detailed in the text, it was unanimously of the view that the “crook” question should not have created a jeopardy bar. Justices Stevens, Brennan, Marshall, and Blackmun concurred in the judgment. See id. at 679 & 680.
140. Thanks to Nick Costantino, one of my excellent research assistants, for this idea.
141. United States v. Martin Linen Supply Co., 430 U.S. 564 (1977).
142. 186 U.S. 413 (1902).
143. If the trial judge grants the motion for acquittal, presumably there can be no appeal because no verdict exists to reinstate if the trial judge is reversed. See discussion earlier in this chapter. So at least in the federal system, and in the states which do not permit appeals from acquittals, the judge’s grant of an acquittal following a hung jury operates just like a jury acquittal.
144. See Richardson v. United States, 468 U.S. 317 (1984); Logan v. United States, 144 U.S. 263 (1892); United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824). The hung jury doctrine is critiqued quite effectively in Findlater, Retrial After Hung Jury. See also Schulhofer, 522–24 (arguing that retrials after hung juries should be tested by strictest standard of mistrial review).
145. 468 U.S. 317 (1984).
146. See Burks v. United States, 437 U.S. 1 (1978).
147. Jackson v. Virginia, 443 U.S. 307 (1979).
148. Marsha Wenk argued this point in the context of Richardson until I finally saw its merit.
149. 468 U.S. at 323.
150. Id. at 325–26.
151. Id. at 327 (Brennan, J., concurring in part and dissenting in part).
152. I understand that, practically speaking, a defendant would probably prefer a hung jury to a conviction. But, in the world of double jeopardy theory, we can assume that an appellate court will recognize the insufficient evidence leading to the conviction, and this recognition will create a jeopardy bar to a second trial.
153. 468 U.S. at 326 (Brennan, J., concurring in part and dissenting in part) (joined by Marshall, J.).
154. 468 U.S. at 322. Only Justice Stevens dissented from that part of the Court’s opinion. Id. at 332.
155. Id. at 322.
156. Id. at 326 n.6 (citations omitted).
157. Id. at 323.
158. 431 U.S. 651, 662 (1977).
159. 429 U.S. 14 (1976) (per curiam).
160. 437 U.S. 28 (1978). The Court had stated that rule in dicta seventy-five years earlier. Kepner v. United States, 195 U.S. 100, 128 (1904).
161. 437 U.S. at 49 (Powell, J., dissenting).
162. Id. at 36 (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949).
163. Id. at 38.
164. Id. at 39 (Blackmun, J., concurring).
165. Id.
166. Schulhofer, 512–24.
167. Westen & Drubel, 99 (quoting Crist v. Bretz, 437 U.S. 28, 37 (1978)).
168. For example, the Court has held that the dismissal of an indictment does not bar the government from bringing a second indictment. Ex parte United States, 287 U.S. 241, 250–51 (1932). While this is consistent with the Court’s attachment doctrine, it is also consistent with a blameworthiness conception of double jeopardy. The dismissal of an indictment is not a judgment on the merits of the prosecution’s case because the grand jury is a screening mechanism, and the government is not required to present its entire case.
169. See Illinois v. Somerville, 410 U.S. 458, 466 (1973); United States v. Jorn, 400 U.S. 470, 484 (1971); Wade v. Hunter, 336 U.S. 684, 689 (1949).
170. Perez, 22 U.S. at 580.
171. Thomas, Elegant Theory.
172. In Keerl v. Montana, 213 U.S. 135, 138 (1909), for example, the Court quoted Justice Story’s language about the discretion of the trial judge as the “settled law of the Federal courts.” In the next paragraph, however, the Court discussed the facts which gave rise to the mistrial before “finding no error” in that decision.
173. In Lovato v. New Mexico, 242 U.S. 199, 201 (1916), the Court did not quote from Perez and seemed to review the merits of the claim: “Whether or not, under the circumstances, it was a necessary formality to dismiss the jury in order to enable the accused to be again arraigned and plead, the action taken was clearly within the bounds of sound judicial discretion.”
174. Though the defendant lost in Wade v. Hunter, 336 U.S. 684 (1949), the Court contemplated that the right kind of manifest necessity mistrial claim would win. After discussing the facts for several pages, the Court wrote, “Measured by the Perez rule to which we adhere, petitioner’s second court-martial trial was not the kind of double jeopardy within the intent of the Fifth Amendment.” Id. at 690.
175. See Richardson, 159–68 (proposing use of Due Process Clause to replace double jeopardy as protection against harassing prosecutions). I agree with Richardson’s general observation that due process is, after all, “intended to spawn vague standards” and the Double Jeopardy Clause is not. Id. at 167. It is thus better to locate necessarily vague protections (against retrials after mistrial, or against harassing prosecutions in general) in the Due Process Clause.
176. Although Justice O’Connor has used a balancing test in double jeopardy cases, she has never been joined by another Justice. See Garrett v. United States, 471 U.S. 773, 796 (1985) (O’Connor, J., concurring).
177. Shellenberger & Strazzella, 191.
178. Schulhofer, Jeopardy and Mistrials.
179. Id. at 516.
180. Id. at 517.
181. See my discussion earlier in this chapter.
182. Sigler, 223.
1. 302 U.S. 319 (1937).
2. See State v. Lee, 30 A. 1110, 1113 (1894) (discussing Conn. Gen. Stat. § 1637 (1888)).
3. Sigler, 79 (listing Maryland, Massachusetts, North Carolina, and Vermont as other states without a state constitutional double jeopardy provision).
4. See State v. Lee, 30 A. at 1112.
5. See, e.g., United States v. Martin Linen Supply Co., 430 U.S. 564 (1977).
6. See Lee, 30 A. at 1110–11.
7. State v. Palko, 186 A. 657, 660 (Conn. 1936).
8. Today, this would be recognized as an implicit acquittal of the more serious offense, which the Court explicitly recognized twenty years later in Green v. United States, 355 U.S. 184 (1957). Thus, today the issue would be whether Palko could be retried for second-degree murder following a successful state appeal.
9. United States v. Wilson, 420 U.S. 332, 352 (1975) (rejecting unlimited governmental appeal).
10. Justice Butler dissented without opinion. 302 U.S. at 153.
11. Incorporation would come thirty-two years later in Benton v. Maryland, 395 U.S. 784 (1969), discussed in this chapter.
12. Palko, 302 U.S. at 328 (quoting Hebert v. Louisiana, 272 U.S. 312, 316 (1926)).
13. Id. (citation omitted).
14. Id.
15. See id. at 323.
16. Id. at 328.
17. Id. at 323.
18. For an earlier expression of the same theory, see Thomas, Elegant Theory.
19. Note, 43 Wash. & Lee L. Rev. 295.
20. The Court has stated that the Constitution does not require states to have appellate systems, McKane v. Durston, 153 U.S. 684 (1894), and has clearly held that the right to appointed counsel exists in only the first level of review, Ross v. Moffitt, 417 U.S. 600 (1974).
22. Comley, 677. See also Note, 15 Ky. L.J. 46, 51–52 (noting existence of state statute authorizing state appeals).
23. Of course, the defendant who pleads autrefois acquit has other potential arguments—implied acquittal of higher degree and collateral estoppel. But on the basic issue of the scope of protection arising from the plea of autrefois acquit, that defendant is in the same position as if pleading autrefois convict.
24. Exodus 18:18–22.
25. See Mendelsohn, citing Sifre II, section 144; Sanh. 32(a).
26. See Gemara, Sanhedrin, 33b.
27. S. Mendelsohn, 150–51 & n.358 (1968) (citing Sifre II, section 144; Sanh. 32(a)) (noting an exception for instigating idolatry). See also Goldin, 109 & 109–10 n.6 (1952) (citing and quoting Talmudic book of Sanhedrin) (noting no exceptions).
28. See Commentary to Model Penal Code § 1.09, 48. I thus take Sigler’s recommendations in favor of state appeal to be limited to errors of law. Sigler, 115, 224. Indeed, he discusses the Model Penal Code Commentary suggesting that appeal in the absence of an error of law probably violates the federal Constitution. Sigler, 208.
29. This leaves unsettled whether the facts underlying an acquittal can be reviewed if the trial was to the judge. Westen and Drubel would be sympathetic to this distinction.
30. S. Mendelsohn, 150–51 & n.358 (1968) (citing Sifre II, section 144; Sanh. 32(a)) (noting an exception for instigating idolatry). See also H. Goldin, Hebrew Criminal Law and Procedure 109 & 109–10 n.6 (1952) (citing and quoting Talmudic book of Sanhedrin) (noting no exceptions).
31. Comley argues that American courts forbade appeals of acquittals because they erroneously assumed that this practice was embedded in the English common law. Comley, 678.
32. 2 Hale at 244–45.
33. Id. at 244.
34. 168 Eng. Rep. 455 (K.B. 1796). See chapter 3 for the discussion of whether Blockburger follows from Vandercomb.
35. 168 Eng. Rep. at 461.
36. 168 Eng. Rep. at 456–57.
37. Id. at 461. Friedland agrees that Vandercomb is a variance case. Friedland, 100. See also Carroway, 110; Comment, 75 Yale L.J. 262, 274.
38. United States v. Nickerson 58 U.S. (17 How.) 204 (1854).
39. Id. at 212.
40. A notable exception is Shellenberger & Strazzella, 165.
41. 131 U.S. 176, 187 (1889).
42. 195 U.S. 100, 134 (1904) (Holmes, J., dissenting).
43. 302 U.S. at 323.
44. 195 U.S. at 135 (Holmes, J., dissenting).
45. 144 U.S. 310, 318 (1892).
46. Id.
47. 302 U.S. at 328.
48. “The fundamental nature of the guarantee against double jeopardy can hardly be doubted…. This underlying notion has from the very beginning been part of our constitutional tradition. Like the right to trial by jury, it is clearly ‘fundamental to the American scheme of justice.’” 395 U.S. 784, 795–96 (1969) (quoting Duncan v. Louisiana, 391 U.S. 145, 149 (1968).
49. Id. at 795.
50. Id. at 813 (Harlan, J., dissenting).
51. 163 U.S. 662 (1896). See chapter 8.
52. Maryland was another of the five states without a double jeopardy provision in its state constitution. Sigler, 79.
53. 395 U.S. at 813 (Harlan, J., dissenting).
54. See Conn. Gen. Stat. § 54-96 (West 1997). Among the few reported cases is State v. Avcollie, 384 A.2d 315 (Conn. 1977), where the issue arose when the trial court set aside a jury verdict of guilty and entered an acquittal. Because the Supreme Court has suggested that the Double Jeopardy Clause permits an appeal in that context (see chapter 8) the application of the state statute to overrule the acquittal would not likely cause a double jeopardy problem. The state court so held.
55. Sigler seems to agree, drawing the same distinction between Palko and Hoag v. New Jersey, 356 U.S. 464 (1958). Sigler, 54. Benton had not been decided when Sigler’s book went to press.
56. Brock v. North Carolina, 344 U.S. 424, 438 (1953) (Vinson, C.J., dissenting), discussed in chapter 8.
57. Discussed in this chapter.
58. 199 U.S. 521 (1905).
60. 199 U.S. at 532 (N.Y. Const. art. 1, para. 6).
61. Id. at 531, quoting New York Code of Criminal Procedure 544.
62. 107 U.S. 221 (1883).
63. Id. at 225.
64. 438 U.S. 204 (1978).
66. 467 U.S. 493 (1984).
67. Id. at 500 (“Presumably the trial court, in the event of a guilty verdict on the more serious offenses, will have to confront the question of cumulative punishments as a matter of state law …”).
68. Thomas, Elegant Theory, 870–71.
69. Foog Foo v. United States, 369 U.S. 141 (1962).
70. United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). This case must be distinguished from United States v. Sanford, 429 U.S. 14 (1976), where the defendant lost on very similar facts because jeopardy had not attached. The only distinction is that in Martin Linen, but not in Sanford, the motion for acquittal was within the time period permitted by Rule 29(c) of the Federal Rules of Procedure. In effect, the Court is saying that a post-trial motion for acquittal contemplated by the rules of procedure is still within the original jeopardy, a view that accords with a legislative-intent view of jeopardy.
71. This, of course, is Brown v. Ohio, 432 U.S. 161 (1977).
72. 467 U.S. at 501. See also Montana v. Hall, 481 U.S. 400, 403 n.1 (noting that an implied acquittal occurs only when the factfinder is presented with both charges and chooses to convict of only one).
73. See also United States v. Scott, 437 U.S. 82 (1978) (calling the outcome a “dismissal” does not create a jeopardy bar); Lee v. United States, 432 U.S. 23 (1977) (same).
74. Green v. United States, 365 U.S. 301 (1961). The defendant was convicted of three offenses in a single trial, later held to be the same offense. The issue in Green was whether the appellate court could choose which conviction to affirm. The defendant argued that double jeopardy barred affirming any conviction but the one on which the judge first pronounced sentence, on the theory that the judge’s authority to sentence on the other convictions had been somehow exhausted by the sentence on the first conviction. The Court did not accept the argument. See also Holliday v. Johnston, 313 U.S. 342 (1941).
75. Pennsylvania v. Goldhammer, 474 U.S. 28 (1985) (per curiam) (resentencing was required because one count reversed on appeal as outside the statute of limitations).
77. Louisiana v. Resweber, 329 U.S. 459 (1947). Four Justices dissented, id. at 472, but on the ground that a second attempt violated the Eighth Amendment.
79. See Williams v. Oklahoma, 358 U.S. 576 (1959) (upholding use of prior murder conviction in sentencing for kidnaping).
80. 468 U.S. 447 (1984).
81. In Spaziano, the Court held that there was no Sixth Amendment right to a jury trial; otherwise, the Sixth Amendment would have prohibited the state from making the jury verdict advisory in nature.
82. 104 S.Ct. 1805 (1984).
83. Burks is discussed chapter 8.
84. 468 U.S. 317 (1984).
85. Ball v. United States, 105 S.Ct. 1858 (1985). For a detailed discussion of Ball’s sentencing implications, see Thomas, Sentencing Problems.
86. See Thomas, Sentencing Problems (arguing that to treat multiple convictions as a “package” is inconsistent with the clear, inflexible commands of the Double Jeopardy Clause).
87. In a factually odd case, Jones v. Thomas, 491 U.S. 376 (1989), the Supreme Court approved treating a sentencing pattern as a package. Thomas was convicted of felony murder and the underlying felony and sentenced to fifteen years for the felony and a consecutive life sentence for the murder. After the state courts ruled in other cases that the legislature did not intend to authorize convictions for felony murder and the underlying felony, the governor commuted Thomas’s sentence for the felony, and the state courts vacated his felony conviction and credited the sentence he had served on that conviction to the felony-murder sentence. The Court held that Thomas was left in precisely the same position as if the trial judge had sentenced him correctly in the first place: with a single conviction and sentence for felony murder. I disagree, preferring Scalia’s common-sense dissent. Id. at 389 (Scalia, J., dissenting) (joined by Brennan, Marshall, & Stevens, JJ.) (arguing that Thomas had fully served the sentence for the same offense as the greater and must, therefore, be released). For a defense of the outcome the Court reached (published before the Court decided Jones), see Flynn.
88. United States v. Sanges, 144 U.S. 310, 318 (1892).
89. 18 U.S.C. § 3731.
90. See Sanabria v. United States, 437 U.S. 54, 78 (1978) (holding that Court of Appeals “lacked jurisdiction of the Government’s appeal).”
91. 144 U.S. at 323.
1. In United States v. Sanford, 429 U.S. 14 (1976), the defendant made that showing, because of the judge’s familiarity with the facts of the case, and there is no reason arbitrarily to deny him the acquittal equivalence he deserved. See chapter 8.
2. Moore, 353.
4. 432 U.S. 161 (1977), discussed in detail in chapter 2.
5. Missouri v. Hunter, 459 U.S. 359 (1983), discussed in chapter 3.