Double Jeopardy as a Limit on Punishment
Carissa Byrne Hessick
University of Utah - S.J. Quinney College of Law
F. Andrew Hessick III
Arizona State University - Sandra Day O'Connor College of Law
March 3, 2011
Cornell Law Review, Vol. 97, No. 3, 2012
One of the most common reasons for a sentencing enhancement is that the defendant has a prior conviction. Courts have rejected claims that these recidivism enhancements violate the prohibition against Double Jeopardy. They have explained that the Double Jeopardy Clause does not prohibit the legislature from authorizing multiple punishments for one offense and that, in any event, the Double Jeopardy Clause does not apply at sentencing. This Article challenges these conclusions. It demonstrates that the central motivation for the Double Jeopardy Clause is the prohibition multiple punishments and that allowing recidivism enhancements undermines this principle. The Article further explains that the reasons courts give in rejecting Double Jeopardy challenges to recidivism enhancements directly conflict with the reasons they give in rejecting Eighth Amendment challenges to those same enhancements. The consequence is an inconsistent body of law that maximizes the government’s ability to punish at the expense of individual rights. The Article offers several reasons why the Double Jeopardy Clause is the appropriate constitutional provision to limit recidivism enhancements.
Number of Pages in PDF File: 43
Keywords: double jeopardy, recidivism, sentencing, Fifth Amendment, Eighth AmendmentAccepted Paper Series
Date posted: March 7, 2011
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