Cornell Law Review Volume 97 Issue 1

Double Jeopardy as a Limit on Punishment

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 against multiple punishments and that allowing recidivism enhancements undermines this protection. The Article further explains that the reasons courts give in rejecting double jeopardy challenges to recidivism enhancements directly conflict with courts’ reasons for 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 and sketches a framework under which jurisdictions may increase sentences for recidivists under some circumstances, while at the same time providing meaningful constitutional review of such sentences.


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