NCJ Number
77853
Journal
Yale Law Journal Volume: 90 Issue: 3 Dated: (January 1981) Pages: 632-656
Date Published
1981
Length
25 pages
Annotation
This article proposes a new definition of punishment for implementing the ban on multiple punishment and applies the definition to the punishment of probation, a practice frequently challenged on double jeopardy grounds.
Abstract
The double jeopardy clause of the fifth amendment provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. The multiple punishment prohibition doctrine is an integral part of the double jeopardy clause's retrial restrictions. The courts have implemented the double jeopardy clause's principles of fairness and finality in punishment by imposing three general limitations on sentencing authorities. The sentencing court must take full account of all separate punishments imposed for a single offense. In addition, the defendant's punishment may not be increased after he begins to serve the sentence. Finally, the multiple punishment doctrine prohibits the sentencing court from imposing a punishment not authorized by the legislature. It is suggested herein that the courts have adopted too narrow a definition of punishment, finding a practice punitive only if it is imposed with the intention of punishing the offender. The double jeopardy clause requires a broader definition of punishment, one that focuses on the effect that the practice has upon the offender. By adopting an effects test, courts would bring within the multiple punishment doctrine several sanctions, such as probation, that have previously been considered nonpunitive. Thus, when a probationer is sent to prison for violation of probation conditions, the sentencing authority would take full account of the time served on the probationary term. The article includes 108 footnotes.