Vanderbilt Law Review


Peter M. Bryce

First Page



The Fifth Amendment provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." To the layperson "twice put in jeopardy" means twice tried. The Supreme Court has firmly established, however, that the Double Jeopardy Clause targets two kinds of multiplicity: multiple prosecutions and multiple punishments. The right against multiple punishments is less commonly understood than the right against multiple prosecutions. What does it mean to be punished twice for the same offense? What is the evil that the right guards against? The Court appears to have defined the prohibition in two ways. For years, it explained the right as a guarantee that defendants will suffer no greater punishment than that authorized by the legislature. The idea underlying this approach is that legislatures define the scope of punishments, and thus, punishment in excess of this legislative authorization is unconstitutionally "multiple." Until recently, the Court seemed to have taken the position that legislative deference is the only function of the right against multiple punishments. In 1989, however, the Court held in United States v. Halpers that legislatively authorized civil sanctions cannot be imposed in a separate proceeding after the defendant has been prosecuted and punished. The Halper Court thus seemed to define multiple punishments in terms of proceedings rather than legislative maximums.

These two approaches to the multiple punishments prohibition coexist uneasily. While the legislative deference model recognizes the legislature's power to prescribe punishments, the separate proceedings model effectively undermines that power by prohibiting punishments within legislatively authorized maximums if they happen to be imposed in separate proceedings. Thus, some commentators have argued that the two models of multiple punishments doctrine are fundamentally inconsistent. The Court's focus on separate proceedings in Halper has also caused problems by blurring the distinction between multiple punishments and multiple prosecutions cases. Thus lower courts applying Halper awkwardly import multiple prosecutions doctrine, creating even more confusion? Some point to these problems as evidence that the Double Jeopardy Clause should not be read to protect against multiple punishments at all." The most vocal of these critics, Justice Scalia, has described the multiple punishments prohibition as "one of those areas" where the Court's jurisprudence "is not only wrong but unworkable as well."'

This Note suggests that a double jeopardy prohibition on multiple punishments is neither wrong nor unworkable. Rather, the main problem with multiple punishments jurisprudence stems from the Court's failure to identify a single double jeopardy interest under- lying its various applications of the right. While the Court sometimes states what the prohibition does, it has not articulated what it means. The Court could achieve enhanced clarity by tying its multiple punishments jurisprudence to the interest that the Double Jeopardy Clause was originally designed to serve: the interest in preserving the integrity of final judgments.