NCJ Number
61292
Journal
Maryland Law Review Volume: 37 Issue: 4 Dated: (1978) Pages: 739-778
Date Published
1978
Length
40 pages
Annotation
THE CHALLENGE OF S. 1437 OF THE FEDERAL CRIMINAL REFORM ACT OF 1977 TO THE DOUBLE JEOPARDY PROVISION OF THE FIFTH AMENDMENT IS EXAMINED.
Abstract
THE DOUBLE JEOPARDY PROVISION OF THE FIFTH AMENDMENT PROVIDES THAT NO PERSON SHALL 'BE SUBJECT FOR THE SAME OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB.' ALTHOUGH PRIMARILY INTENDED TO PROTECT INDIVIDUALS AGAINST THE THREAT OF A SECOND PROSECUTION FOR THE SAME OFFENSE AFTER ACQUITTAL OR CONVICTION, THE PROHIBITION AGAINST DOUBLE JEOPARDY ALSO SHIELDS THE ACCUSED 'FROM ATTEMPTS TO SECURE ADDITIONAL PUNISHMENT AFTER A PRIOR CONVICTION AND SENTENCE. 'THIS CONSTITUTIONAL PRINCIPLE IS SERIOUSLY UNDERMINED BY THE PROPOSED CRIMINAL CODE REFORM ACT OF 1977, WHICH, AMIDST A THOROUGH REVAMPING OF THE FEDERAL SENTENCING SYSTEM, PROVIDES FOR INCREASES IN SENTENCES AS A RESULT OF APPELLATE REVIEW INITIATED BY THE GOVERNMENT. WHILE THE CONSTITUTIONAL VALIDITY OF SUCH A PROCEDURE HAS NEVER BEEN ADDRESSED BY THE SUPREME COURT, THE PROBABLE RESOLUTION OF THE CONFLICT BETWEEN THE DOUBLE JEOPARDY CLAUSE AND THE PROPOSED PROCEDURE MAY BE FORESHADOWED BY THE COURT'S APPLICATION OF TRADITIONAL DOUBLE JEOPARDY PRINCIPLES TO THE SENTENCING CONTEXT. RESPECT FOR THE POLICIES OF FINALITY AND PROTECTION AGAINST GOVERNMENTAL HARASSMENT WHICH UNDERLIE THE DOUBLE JEOPARDY CLAUSE COMPELS THE DETERMINATION THAT THE PROVISION IN S. 1437 FOR PROSECUTORIAL APPEAL OF SENTENCES IS UNCONSTITUTIONAL. (AUTHOR ABSTRACT MODIFIED--RCB)