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Double Jeopardy as a Limit on Punishment

43 Pages Posted: 7 Mar 2011  

Carissa Byrne Hessick

University of North Carolina School of Law

F. Andrew Hessick

University of North Carolina School of Law

Date Written: March 3, 2011

Abstract

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.

Keywords: double jeopardy, recidivism, sentencing, Fifth Amendment, Eighth Amendment

Suggested Citation

Hessick, Carissa Byrne and Hessick, F. Andrew, Double Jeopardy as a Limit on Punishment (March 3, 2011). Cornell Law Review, Vol. 97, No. 3, 2012. Available at SSRN: https://ssrn.com/abstract=1776526

Carissa Byrne Hessick (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

F. Andrew Hessick

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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