Courts treat as axiomatic that the Double Jeopardy Clause protects against both multiple punishment and successive prosecution. Unfortunately, applying the same rules to both multiple punishment and successive prosecution undermines double jeopardy protection. Instead, protection from multiple punishment should not be treated as a double jeopardy problem. This Article examines how multiple punishment analysis became entangled with successive prosecution protection. After considering the foundation of the axiom that double jeopardy protects against multiple punishment, it concludes that the axiom must be rejected. Multiple punishment analysis should be disentangled from double jeopardy rules governing successive prosecution and double jeopardy should play no role in evaluating sentences imposed after a single trial.
Anne B. Poulin,
Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol77/iss3/3