Double Punishment Laws

Daniel Loehr, Yale Law School

The idea that someone would be punished twice for the same conduct sounds anathema to our criminal legal system. Consistent with this instinct, we have a double jeopardy rule that prevents double punishment by preventing an accused person from being tried again after a conviction or an acquittal. But punishing the same conduct twice is common.

Habitual offender laws increase a sentence based on prior conduct. Those statutory schemes thus punish the original conduct twice. Sentencing enhancements for criminal history operate similarly. The federal sentencing guidelines, for example, increase sentencing ranges based on previous conduct for which a sentence has already been served. Finally, courts have created a large carve-out from the protection of the double jeopardy clause. Courts will excuse the bar against multiple punishments if there is evidence that the legislature intended multiple punishments.

This Article aims to bring these various phenomena out of their silos and to recognize them jointly as double punishment laws. By offering a history and a 50-state survey of double punishment laws, the Article hopes to show the breadth and variation in these laws. Normatively, this Article traces the rationales that have led us to guard against double jeopardy alongside the rationales that have enabled us to tolerate other forms of double punishment for so long. How is it that we feel so strongly against “double jeopardy” while simultaneously embracing the proliferation of double punishment laws?

The Anti-Subordination Eighth Amendment

Kathryn E. Miller, Cardozo Law School

The Eighth and Fourteenth Amendment both protect fundamental rights, but the Supreme Court only applies heightened scrutiny to certain violations of the Fourteenth Amendment. Instead, violations of the Eighth Amendment are assessed by categorical rules that favor state legislators at the expense of both individuals and minority groups. This Article seeks to excavate why these interpretative differences exist and to determine whether they are justified. It takes a historical approach to exploring both the origins of these Amendments and how the Court’s jurisprudence has changed over time. It then situates the Amendments in contemporary society, arguing that violations frequently result in the same harm: racial subordination. The Article concludes by arguing that the Eighth Amendment and the Fourteenth Amendment are two trains on the same track: accordingly, violations of both should be subject to strict scrutiny.

Moderator and Discussant: Michelle Y. Ewert, Washburn University School of Law