Double Jeopardy

The prosecutor can bring a second prosecution after a conviction unless the charges are for the "same" double jeopardy offense. Same offense issues arise when multiple criminal violations occur during a single criminal "transaction." For example, R uses a knife to rob V. When another person, V2, attempts to prevent the robbery, R pulls a gun and threatens V2 with the gun, then also robs him. This defendant might have committed four criminal offenses—robbery of V1, robbery of V2, assault on V2 (based on the threat with the gun), and the offense of carrying a gun without a license. A prosecutor who wanted to charge all four offenses must know whether any of them are the same offense for purposes of double jeopardy.

This issue has caused the Supreme Court considerable trouble and is still at least partly unresolved. Since the time of Blackstone, it has been accepted wisdom that two different offenses are the "same" if one is necessarily included in the other—if proving the greater always proves the lesser. To use Blackstone's example, a conviction of manslaughter bars a later trial for murder because manslaughter is a necessarily included offense of murder. Applying this principle, the Supreme Court held in Brown v. Ohio that auto theft is the same offense as joyriding because proving auto theft (taking a car without permission and with intent to steal) always proves joyriding (taking a car without permission). The theory here is that a lesser included offense is simply a species of the greater offense.

Some commentators have criticized this principle on the ground that the defendant who is first prosecuted for the lesser offense is never in jeopardy for the additional culpability manifested in the greater offense (the intent to steal, for example, required for auto theft but not for joyriding). The Court's rationale seems to be that the prosecutor can choose to try the greater offense first. If, instead, the prosecutor chooses to try the lesser, the state is stuck with that choice.

Blackstone's lesser-included offense understanding of "same offense" worked well for two hundred years. In 1889, the Supreme Court applied a version of Blackstone's test in In re Nielsen and first clearly relied on the lesser-offense test in the 1932 case of Blockburger v. United States. The test is known today as the Blockburger test and is usually stated as follows: when the same criminal conduct violates more than one statute, offenses are different if each requires proof of an element that the other does not. If each requires proof of an element the other does not, then neither can be included within the other.

The Blockburger test answers the earlier robbery example. Robbery of V1 is not the same offense as robbery of V2 because the two robberies are based on different conduct. R could have stopped after robbing V1; when R does not stop, he has committed two robberies. On the facts of the hypothetical case, robbery is based on the same conduct as carrying a gun without a license, but these offenses are not the same offense because robbery does not require the use of a gun. But the threat of the gun that constituted assault on V2 is the same offense as robbery of V2 because robbery does require proof of force or threat of force.

Although the test is both relatively easy to apply and grounded in Blackstone's wisdom, changes in U.S. criminal law have created difficulties for the Blockburger test. Today there are many overlapping, complex criminal offenses, and the same conduct will often violate two, three, four, or more criminal statutes. Modern statutes tend to be complex, and many require distinct elements. As early as 1958, well before the various "wars" on drugs, a single sale of narcotics violated nine different federal statues, each of which required an element that the others did not—for example, sale not in the original package, sale without a prescription, and sale knowing of unlawful importation. In Gore v. United States, the Court held that these three narcotics offenses could be punished consecutively. What remained unclear after Gore was whether separate trials could be based on a single sale of narcotics.

Reacting against the unfairness of multiple trials based on the same conduct, the Supreme Court in the 1970s began to suggest that there might be a greater protection against successive prosecutions than against multiple punishment in a single trial. The Blockburger test, the Court seemed to say, told us how many punishments were permitted but not how many trials. In 1990 in Grady v. Corbin, the Court held that successive prosecutions required a "same conduct" understanding of "same offense." In addition to the Blockburger inquiry that focused on offense definitions, Grady read the double jeopardy clause to forbid a trial for any criminal charge that required proof of "conduct that constitutes an offense" of which the defendant had already been convicted. For example, manslaughter by auto would be the same offense as drunk driving if the defendant had already been convicted of drunk driving and the manslaughter required proof of the same drunk driving.

The rule proved difficult to apply and, perhaps more importantly, was difficult to justify. As Justice Antonin Scalia sarcastically asked in his dissent in Grady, how could the double jeopardy clause words "same offense" mean one thing when there was a single trial and something very different when successive prosecutions were involved? The Court abandoned the "same conduct" definition of same offense in United States v. Dixon, decided only three years after Grady. In Dixon, the Court held that there is only one definition of same offense—the Blockburger lesserincluded offense definition. If the criminal statutes themselves do not define the same offense when the elements are compared, it does not matter how often the same conduct is reprosecuted. Drunk driving would not be the same offense as manslaughter by auto if the latter offense could be proved by other kinds of reckless behavior even if drunk driving was the reckless conduct that killed the victim in the case being prosecuted.

Dixon did not solve all the same offense problems, however. For one thing, the five Justices who voted to overrule Grady disagreed among themselves about how to apply Blockburger to the complex statutes in Dixon. For another, there might still be a "same offense" difference between multiple punishments in a single trial and a second trial after conviction. Recall the Missouri v. Hunter rule that a specific legislative requirement of consecutive sentences made the punishments not multiple. But this does not necessarily solve the problem of multiple trials. One way to frame the question is whether the legislature can, by simply stating its intent to create separate offenses, make offenses not the "same" for purposes of successive prosecutions as well as for the multiple punishment doctrine. If, as the Court suggested in Brown, the legislature is free to "define crimes and fix punishments," perhaps the legislature can create separate offenses under the double jeopardy clause by simply stating its intent to do so.

But the Court has never suggested that the multiple punishment principle from Missouri v. Hunter would extend into the successive prosecution context. Indeed, one member of the current Court, Justice Scalia, has argued just the opposite—that the multiple punishment doctrine is analytically separate from the successive prosecution doctrine. In the single trial context, the argument goes, the legislature can rebut the result of the Blockburger test because the rebuttal merely makes clear how many penalties the legislature intended to authorize, but the double jeopardy clause forbids the legislature to authorize more than one trial for the same offense as defined by the Blockburger test. This issue remains unresolved.