Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot


Abstract only. Article forthcoming in the Colorado Law Review.


Courts and commentators treat as axiomatic that the Double Jeopardy Clause protects against multiple punishment as well as reprosecution after acquittal and reprosecution after conviction. They struggle to define a double jeopardy jurisprudence that accommodates all three. By applying the same rules to both multiple punishment and successive prosecution, they undermine core double jeopardy protection. When a defendant claims multiple punishment, legislative will governs, and fragmentation of offenses is acceptable. Successive prosecution claims warrant greater protection. However, because courts apply the same rules to both issues, they inject legislative deference into successive prosecution analysis, reducing double jeopardy protection. Instead, protection from multiple punishment should not be treated as a double jeopardy problem.

This Article examines how multiple punishment analysis has been entangled with protection from successive prosecution. It explores the basis for and considers the foundation and development of the axiom that double jeopardy protects against multiple punishment. The Article concludes that the axiom must be rejected. Analysis of multiple punishment should focus on legislative intent. Double jeopardy principles should play no role in evaluating the propriety of sentences imposed after a single trial, and multiple punishment analysis should be disentangled from double jeopardy rules governing successive prosecution.


Constitutional Law | Criminal Law | Criminal Procedure

Date of this Version

September 2005

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