Prohibition on Successive Prosecutions for the Same Offense — In Search of The 'Goldilocks Zone': The California Approach to a National Conundrum

55 Pages Posted: 4 May 2017 Last revised: 24 May 2017

Date Written: May 3, 2017

Abstract

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects a defendant from being tried twice for the same offense. But, what does “same offense” mean? There is no clear definition or universal test.

The Federal Courts persist in applying an 80-year-old test — borrowed from the separate context of multiple punishments — that undermines the Double Jeopardy Clause. States’ approaches fare no better. Ultimately, whether one is placed twice in jeopardy for the “same offense” depends on the happenstance of where the crime occurred, and the artfulness of the prosecutor in charging. And as a result, our prisons are populated with those convicted twice for the same criminal conduct. With the passing of Justice Scalia, the chief revivalist of the federal Depression-era “same offense” approach, it is time to re-visit the test and replace it.

Using California law as an example, this article draws on the policy considerations and competing interests to propose a unique, two-step, “multi-feature” approach to the prohibition against successive prosecution for the same offense. The new approach disentangles the ban on multiple punishments from the prohibition against successive prosecutions, promotes the purposes of the prohibition and safeguards the Double Jeopardy Clause’s fundamental Constitutional ideals.

Keywords: Double Jeopardy, California law, Kellett Rule, Blockburger, successive prosecution for same offense, multiple prosecution

Suggested Citation

Delfino, Rebecca, Prohibition on Successive Prosecutions for the Same Offense — In Search of The 'Goldilocks Zone': The California Approach to a National Conundrum (May 3, 2017). American Criminal Law Review, Vol. 54, No. 2, 2017, Loyola Law School, Los Angeles Legal Studies Research Paper No. 2017-22, Available at SSRN: https://ssrn.com/abstract=2962554

Rebecca Delfino (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States

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