43 Pages Posted: 7 Mar 2011
Date Written: March 3, 2011
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: 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