Double jeopardy as a limit on punishment

Cornell Law Review

Volumn 97, Issue 1, 2011, Pages 45-86

  Hessick, Carissa Byrne ^a   Hessick, F Andrew ^a  

^a ARIZONA STATE UNIVERSITY   (United States)

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EID: 83455230675     PISSN: 00108847     EISSN: None     Source Type: Journal    
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References (296)

1. Although there is a burgeoning literature showing widespread agreement about how to rank various crimes in relation to one another, see, e.g., Paul H. Robinson & Robert Kurzban, Concordance and Conflict in Intuitions of Justice, 91 MINN. L. REV. 1829, 1892 (2007), agreement about how much to punish (in absolute terms) does not appear to exist.
2. see Donald Braman, Dan M. Kahan & David Hoffman, Some Realism About Punishment Naturalism, 77 U. CHI. L. REV. 1531, 1544-45 (2010).
3. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969) ("[T]he Fifth Amendment guarantee against double jeopardy ⋯ protects against a second prosecution for the same offense after conviction. ⋯ [and] protects against multiple punishments for the same offense.").
4. See, e.g., McDonald v. Massachusetts, 180 U.S. 311, 312-13 (1901).
5. See, e.g., Monge v. California, 524 U.S. 721, 728 (1998).
6. Parke v. Raley, 506 U.S. 20, 26-27 (1992);
7. U.S. DEP'T OF JUSTICE, NO. NCJ-129896, STATUTES REQUIRING THE USE OF CRIMINAL HISTORY RECORD INFORMATION (1991) [hereinafter STATUTES REQUIRING CRIMINAL HISTORY].
8. See CAL. PENAL CODE §§ 667, 1170 (West 2010 & Supp. 2011);
9. Ewing v. California, 538 U.S. 11, 14-17 (2003) (explaining the law's purposes and specific provisions).
10. See, e.g., Carissa Byrne Hessick & F. Andrew Hessick, Recognizing Constitutional Rights at Sentencing, 99 CALIF. L. REV. 47-58 n.50 (2011);
11. Youngjae Lee, Recidivism as Omission: A Relational Account, 87 TEX. L. REV. 571-575 n.12 (2009);
12. Nathan H. Seltzer, When the Tail Wags the Dog: The Collision Course Between Recidivism Statutes and the Double Jeopardy Clause, 83 B.U. L. REV. 921, 932 (2003);
13. Ahmed A. White, The Juridical Structure of Habitual Offender Laws and the Jurisprudence of Authoritarian Social Control, 37 U. TOL. L. REV. 705, 737-43 (2006).
14. See, e.g., GEORGE C. THOMAS III, DOUBLE JEOPARDY: THE HISTORY, THE LAW 228 (1998);
15. Susan R. Klein & Katherine P. Chiarello, Successive Prosecutions and Compound Criminal Statutes: A Functional Test, 77 TEX. L. REV. 333, 373-74 (1998);
16. Elizabeth T. Lear, Double Jeopardy, the Federal Sentencing Guidelines, and the Subsequent-Prosecution Dilemma, 60 BROOK. L. REV. 725, 741-48 (1994);
17. Anne Bowen Poulin, Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot, 77 U. COLO. L. REV. 595, 597 (2006);
18. Julian V. Roberts, The Role of Criminal Record in the Sentencing Process, 22 CRIME & JUST. 303, 316-20 (1997);
19. Note, The Constitutionality of Statutes Permitting Increased Sentences for Habitual or Dangerous Criminals, 89 HARV. L. REV. 356, 361 (1975).
20. E.g., Ewing, 538 U.S. at 25.
21. E.g., Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998).
22. See, e.g., John F. Pfaff, The Durability of Prison Populations, 2010 U. CHI. LEGAL F. 73, 73 (noting that since the 1970s, the U.S. prison population "has quintupled in size, from just over 300 thousand inmates to more than 1.5 million").
23. U.S. CONST. amend. V.
24. North Carolina v. Pearce, 395 U.S. 711, 717 (1969)(footnotes omitted).
25. quoted in Schiro v. Farley, 510 U.S. 222, 229 (1994).
26. Ohio v. Johnson, 467 U.S. 493, 498 (1984).
27. Whalen v. United States, 445 U.S. 684, 688 (1980).
28. Brown v. Ohio, 432 U.S. 161, 165 (1977);
29. see also Dep't of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 793 (1994) ("[T]he double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense."
30. (quoting Helvering v. Mitchell, 303 U.S. 391, 399 (1938))) (O'Connor, J., dissenting);
31. Schiro, 510 U.S. at 229 (noting that the Double Jeopardy Clause's protections "stem from the underlying premise that a defendant should not be twice tried or punished for the same offense");
32. Justices of Bos. Mun. Court v. Lydon, 466 U.S. 294, 306-07 (1984) ("Our cases have recognized three separate guarantees embodied in the Double Jeopardy Clause: It protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense.");
33. Note, Twice in Jeopardy, 75 YALE L.J. 262, 265-66 (1965) ("Three rules are central to the double jeopardy prohibition: The rules which bar retrial for the same offense after acquittal, retrial for the same offense after conviction, and multiple punishment for the same offense at one trial." (footnotes omitted)).
34. See, e.g., Kurth Ranch, 511 U.S. at 800 (Scalia, J., dissenting) (arguing that any restriction on "multiple punishments ⋯ derive[s] exclusively from the due process requirement of legislative authorization") .
35. See JOHN POTTER, ARCHAEOLOGIAE GRAECAE: OR, THE ANTIQUITIES OF GREECE 153 (1697) ("[T]here shall be no renewing of any thing dispatcht by judges either in the publick, or more private Courts, or by the People, according to the Enactions of their Decrees ⋯ .").
36. S. MENDELSOHN, THE CRIMINAL JURISPRUDENCE OF THE ANCIENT HEBREWS 178 (1890).
37. David S. Rudstein, A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy, 14 WM. & MARY BILL RTS. J. 193, 198-200 (2005).
38. JAY A. SIGLER, DOUBLE JEOPARDY: THE DEVELOPMENT OF A LEGAL AND SOCIAL POLICY 3 (1969);
39. see also Bartkus v. Illinois, 359 U.S. 121, 152 (1959) (Black, J., dissenting) ("[T]he idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers.").
40. see also 2 BRACTON ON THE LAWS AND CUSTOMS OF ENGLAND 397 (George E. Woodbine ed., Samuel Thorne trans., 1968) (1235) (stating that an individual may "except against the appeal" on the ground that "he had earlier been appealed of the same deed by another and had departed quit by judgment").
41. D. Bonham's Case, (1610) 77 Eng. Rep. 638 (K.B.) 654. Other historical sources prohibited multiple punishments for the same offense.
42. Modern laws regularly prescribe multiple components to a single punishment for a single conviction. For example, a conviction for mortgage fraud can result in both a fine of up to $1,000,000 and a term of imprisonment of up to thirty years. 18 U.S.C. § 1014 (2006).
43. See Dr. Bonham's Case, 77 Eng. Rep. at 654;
44. accord 4 EDWARD COKE, THE REPORTS OF SIR EDWARD COKE, IN THIRTEEN PARTS, pt. 7, at 377 (John Farquhar Fraser ed., 1826);
45. see also 2 SAMUEL PUFENDORF, DE JURE NATURAE ET GENTIUM LIBRI OCTO 141 (James Brown Scott ed., C.H. Oldfather & W.A. Oldfather trans., Clarendon Press 1934) (1688).
46. WILLIAM BLACKSTONE, COMMENTARIES 311 ("[N]emo bis punitur pro eodem delicto." (emphasis omitted)).
47. WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 377 (1739) (footnote omitted).
48. See 1 JOHN FREDERICK ARCHBOLD, THE NEW SYSTEM OF CRIMINAL PROCEDURE, PLEADING AND EVIDENCE IN INDICTABLE CASES 111-14 (1852);
49. EDWARD E. BURNS, STANDARD ENCYCLOPAEDIA OF PROCEDURE 90-91 (Edgar W. Camp ed., 1914).
50. See 1 ARCHBOLD, supra note 24, at 111; 9 BURNS, supra note 24, at 89-90; see also Crist v. Bretz, 437 U.S. 28, 40-41 (1978) (Powell, J., dissenting) (stating that "the Double Jeopardy Clause was directed" to address the "pleas of autrefois acquit and autrefois convict");
51. George C. Thomas III, An Elegant Theory of Double Jeopardy, 1988 U. ILL. L. REV. 827, 828 (identifying the pleas of autrefois convict and autrefois acquit as "the 'core' double jeopardy clause protection").
52. reprinted in SOURCES OF OUR LIBERTIES: DOCUMENTARY ORIGINS OF INDIVIDUAL LIBERTIES IN THE UNITED STATES CONSTITUTION AND BILL OF RIGHTS 153 (Richard L. Perry & John C. Cooper eds., 1959)).
53. ARTHUR P. SCOTT, CRIMINAL LAW IN COLONIAL VIRGINIA 81-82 (1930);
54. see also Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 YALE L.J. 1807, 1814 (1997) ("At common law, the double jeopardy idea encompassed two basic pleas in bar, prior acquittal and prior conviction-in law French, autrefois acquit de même felonie and autrefois convict de même felonie.").
55. -1 ANNALS OF CONG. 451-52 (1789) (Joseph Gales ed., 1834).
56. John O. Bigelow, Former Conviction and Former Acquittal, 11 RUTGERS L. REV. 487, 488 (1957).
57. Dep't of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 804-05 (1994) (Scalia, J., dissenting);
58. see also Witte v. United States, 515 U.S. 389, 406-07 (1995) (Scalia, J., concurring in judgment) (interpreting "twice put in jeopardy of life or limb" to mean "twice prosecuted for the same offense");
59. Hy- pothesizing that the language came from Vaux's Case, (1591) 76 Eng. Rep. 992 (K.B.) 993)
60. See, e.g., Graham v. West Virginia, 224 U.S. 616, 623 (1912);
61. Jay A. Sigler, A History of Double Jeopardy, 7 AM. J. LEGAL HIST. 283, 302-03 (1963) (noting that in some colonies "[r]epeated criminal offenses also entailed the use of the death penalty").
62. See Act for the Punishment of Criminal Offenders, § 4 (1692).
63. in 1 THE ACTS AND RESOLVES, PUBLIC AND PRIVATE, OF THE PROVINCE OF MASSACHUSETTS BAY 52 (1869) (prescribing branding for the first conviction and hanging for the second);
64. see also Note, Selective Incapacitation: Reducing Crime Through Predictions of Recidivism, 96 HARV. L. REV. 511, 511 n.1 (1982) ("The Massachusetts Bay Colony had recidivist laws for robbers and burglars at least as early as 1692.").
65. -3 THE STATUTES AT LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA 276-78 (William Waller Hening ed., 1823) (1619).
66. Graham, 224 U.S. at 623.
67. See Michael G. Turner et al., "Three Strikes and You're Out" Legislation: A National Assessment, 59 FED. PROBATION 16, 17 (1995) (noting that application of habitual-offender laws was "minimal" in early America, but that such laws "flourished in the U.S. throughout the 1920's").
68. Van Orden v. Perry, 545 U.S. 677-726 n.27 (2005) (Stevens, J., dissenting).
69. Benton v. Maryland, 395 U.S. 784, 784 (1969).
70. Act of March 2, 1831, ch. 37, § 1, 4 Stat. 448, 448 (imposing punishment for a "second conviction" of petty larceny).
71. Act of Sept. 1, 1789, ch. 11, § 34, 1 Stat. 55, 65.
72. See C. Roger Vinson, Special Project, The Collateral Consequences of a Criminal Conviction, 23 VAND. L. REV. 929, 941-50 (1970) (noting that the English common-law practice of declaring those convicted of treason and other felonies "attainted" resulted in the divestiture of many civil rights, including the right to hold public office);
73. See Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. REV. 623, 640-41 (2006).
74. See, e.g., Justices of Bos. Mun. Court v. Lydon, 466 U.S. 294, 306-07 (1984);
75. North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
76. Albernaz v. United States, 450 U.S. 333, 344 (1981).
77. Whalen v. United States, 445 U.S. 684, 692 (1980).
78. United States v. Dixon, 509 U.S. 688, 696 (1993).
79. See Thomas W. Merrill, The Disposing Power of the Legislature, 110 COLUM. L. REV. 452, 456-58 (2010);
80. See Garrett v. United States, 471 U.S. 773, 793 (1985).
81. quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983);
82. see also Albernaz, 450 U.S. at 344 ("[T]he question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.").
83. See United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) ("It is the legislature, not the Court, which is to define a crime, and ordain its punishment.");
84. see also Whalen, 445 U.S. at 689 ("The Fifth Amendment guarantee against double jeopardy embodies in this respect simply one aspect of the basic principle that within our federal constitutional framework the legislative power, including the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, resides wholly with the Congress.").
85. See Albernaz, 450 U.S. at 344;
86. Whalen, 445 U.S. at 688;
87. Brown v. Ohio, 432 U.S. 161, 165 (1977) ("Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.").
88. see also Carissa Byrne Hessick, Why Are Only Bad Acts Good Sentencing Factors?, 88 B.U. L. REV. 1109, 1115 (2008) ("Every state has enacted legislation that punishes recidivists more severely than first offenders.").
89. E.g., COLO. REV. STAT. § 12-22-127 (2010) ("Any person who practices or offers or attempts to practice pharmacy without an active license issued under this article commits a class 2 misdemeanor ⋯ for the first offense, and any person committing a second or subsequent offense commits a class 6 felony ⋯ .").
90. E.g., IND. CODE ANN. § 35-47-2-23(d) (LexisNexis 2009) ("A person who violates section 22 [IC 35-47-2-22] of this chapter commits a Class A misdemeanor.
91. See, e.g., S.C. CODE ANN. § 17-25-45(A) (2003 & Supp. 2010).
92. See, e.g., WYO. STAT. ANN. § 6-10-201(b)(ii) (2009).
93. See James Austin et al., The Impact of 'Three Strikes and You're Out,' 1 PUNISHMENT & SOC'Y 131, 134-37 (1999) (describing various three strikes legislation and "strikeable offenses" across jurisdictions).
94. E.g., ALASKA STAT. § 12.55.155(c)(15) (2010);
95. CAL. CRIM. R. CT. 4.421(b)(2);
96. HAW. REV. STAT. ANN. § 706-662(1) (LexisNexis 2007);
97. IDAHO CODE ANN. § 19-2521(1)(f) (2004);
98. MINN. STAT. ANN. § 244 app. II.B (West 2010);
99. OHIO REV. CODE ANN. §§ 2929.12(E)(2) (LexisNexis 2010);
100. TENN. CODE ANN. § 40-35-114(1) (2010);
101. WASH. REV. CODE ANN. § 9.94A.535(2)(d) (West 2010 & Supp. 2011);
102. U.S. SENTENCING GUIDELINES MANUAL § 4A1.1 (2010);
103. MODEL PENAL CODE SENTENCING § 6B.07 (2006);
104. KATE STITH & JOSÉ A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS, 72, 218 n.219.
105. See Almendarez-Torres v. United States, 523 U.S. 224, 230 (1998) ("[P]rior commission of a serious crime ⋯ is as typical a sentencing factor as one might imagine.");
106. Williams v. Oklahoma, 358 U.S. 576, 585-86 (1959) (upholding a death sentence despite the fact that the judge imposed the sentence based on the defendant's commission of another crime for which the defendant had already been convicted and sentenced);
107. Graham v. West Virginia, 224 U.S. 616, 623, 631 (1912);
108. McDonald v. Massachusetts, 180 U.S. 311, 312-13 (1901);
109. Moore v. Missouri, 159 U.S. 673, 676-77 (1895);
110. see also Oyler v. Boles, 368 U.S. 448, 451 (1962) (stating that the constitutionality of habitualoffender laws is "no longer open to serious challenge").
111. Monge v. California, 524 U.S. 721, 728 (1998);
112. Gryger v. Burke, 334 U.S. 728, 732 (1948).
113. Monge, 524 U.S. at 728 (alteration in original).
114. quoting United States v. Watts, 519 U.S. 148, 154 (1997) (per curiam);
115. see also Witte v. United States, 515 U.S. 389, 402-03 (1995) ("To the extent that the Guidelines aggravate punishment for related conduct outside the elements of the crime ⋯ [,] the offender is still punished only for the fact that the present offense was carried out in a manner that warrants increased punishment, not for a different offense ⋯ .").
116. Carissa Byrne Hessick & F. Andrew Hessick, Appellate Review of Sentencing Decisions, 60 ALA. L. REV. 1, 39-40 (2008) (footnotes omitted);
117. see also David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731, 737 (1987) ("[L]ack of candor seldom goes undetected for long, and its detection only serves to increase the level of cynicism about the nature of judging and of judges.").
118. See Peter Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 MICH. L. REV. 1001, 1007 (1980);
119. see also Green v. United States, 355 U.S. 184, 187 (1957) (stating that the right against double jeopardy ensures that "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity").
120. See, e.g., Green, 355 U.S. at 187-88 (1957);
121. Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy, 1978 SUP. CT. REV. 81, 107 (noting that the "principal interest" protected in the context of retrial following conviction "is that underlying the historical plea of autrefois convict, namely, to protect the defendant from being subjected to double punishment for the same offense").
122. U.S. CONST. amend. VI.
123. See Akhil Reed Amar & Jonathan L. Marcus, Double Jeopardy Law After Rodney King, 95 COLUM. L. REV. 1, 57-59 (1995);
124. Barry L. Johnson, If At First You Don't Succeed-Abolishing the Use of Acquitted Conduct in Guidelines Sentencing, 75 N.C. L. REV. 153, 181-82 (1996);
125. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) ("It cannot be presumed that any clause in the [C]onstitution is intended to be without effect ⋯ .").
126. See Monroe G. McKay, Double Jeopardy: Are the Pieces the Puzzle?, 23 WASHBURN L.J. 1, 18 (1983);
127. Susan R. Klein, Double Jeopardy's Demise, 88 CALIF. L. REV. 1001, 1027-36 (2000).
128. Garrett v. United States, 471 U.S. 773, 796 (1985) (O'Connor, J., concurring).
129. Compare In re Nat'l Presto Indus., Inc., 347 F.3d 662, 663 (7th Cir. 2003) (stating that "unrecoverable costs of litigation ⋯ do not" warrant mandamus).
130. Sherri A.D. v. Kirby, 975 F.2d 193, 204 n.15 (5th Cir. 1992) (reasoning that "increased cost of litigation alone" does not warrant interlocutory appeal).
131. Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (concluding that a possible deprivation of constitutional rights sufficiently demonstrated a likelihood of irreparable harm warranting injunctive relief).
132. See, e.g., Amar & Marcus, supra note 78, at 36 n.184; Nancy J. King, Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties, 144 U. PA. L. REV. 101, 130-34 (1995).
133. See, e.g., Hudson v. Palmer, 468 U.S. 517, 530 (1984) (suggesting that a prisoner must resort to "state tort and common-law remedies" rather than the Fourth Amendment to address "calculated harassment" by prison officials);
134. Terry v. Ohio, 392 U.S. 1, 13-15 & n.9 (1968) (noting that police "may accost a woman in an area known for prostitution as part of a harassment campaign designed to drive prostitutes away without the considerable difficulty involved in prosecuting them" and that "[t]he wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial" (footnote omitted)).
135. The Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), makes clear that a defendant's sentence may be increased based on a prior conviction without requiring the government to prove to a jury either the fact of the previous conviction or the facts underlying that conviction.
136. The Supreme Court appeared to recognize the secondary nature of this interest in Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873), in which the Court suggested that the prohibition on multiple trials was a common-law extension of the prohibition on multiple punishments.
137. See In re Nielsen, 131 U.S. 176, 187-90 (1889).
138. Justices of Bos. Mun. Court v. Lydon, 466 U.S. 294, 307 (1984).
139. See, e.g., Ex parte Lange, 85 U.S. (18 Wall.) at 168-73.
140. See, e.g., Dep't of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 776-77 (1994);
141. United States v. Dixon, 509 U.S. 688, 696-97 (1993);
142. Grady v. Corbin, 495 U.S. 508, 510 (1990);
143. Blockburger v. United States, 284 U.S. 299, 304 (1932);
144. In re Nielsen, 131 U.S. 176, 188 (1889).
145. U.S. CONST. amend. IV. Rather, they extend it to anything in which a person has a reasonable expectation of privacy.
146. See Tashjian v. Republican Party of Conn., 479 U.S. 208, 215 n.5 (1986);
147. Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984) ("An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed. ⋯ Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.").
148. See, e.g., Graham v. Florida, 130 S. Ct. 2011, 2021-22 (2010) (interpreting the Eighth Amendment based on current societal notions of what constitutes appropriate punishment);
149. Lawrence v. Texas, 539 U.S. 558, 575 (2003) (relying on principles underlying the Due Process Clause to bar laws outlawing sodomy);
150. Tashjian, 479 U.S. at 226-27 (interpreting Article I, Section 2 of the Constitution according to its underlying principle);
151. Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (interpreting Equal Protection Clause to promote the principle of equality).
152. See Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L.J. 1113, 1132 (2003) (advocating that the Constitution be interpreted according to how it "would have been understood by a hypothetical, objective, reasonably well-informed reader of those words and phrases, in context, at the time they were adopted, and within the political and linguistic community in which they were adopted");
153. see also Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST. COMMENT. 427, 432-36 (2007) (advocating a method of interpreting the Constitution according to the principles underlying its provisions).
154. U.S. CONST. amend. IV.
155. E.g., Kyllo v. United States, 533 U.S. 27, 39-30 (2001) (thermal imaging);
156. Katz v. United States, 389 U.S. 347, 348 (1967) (electronic eavesdropping).
157. See Katz, 389 U.S. at 361 (Harlan, J., concurring);
158. Boyd v. United States, 116 U.S. 616, 630 (1886) ("It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property ⋯ .");
159. see also Hudson v. Michigan, 547 U.S. 586, 603 (2006) ("[P]rivacy and security in the home are central to the Fourth Amendment's guarantees ⋯ .");
160. Wilson v. Layne, 526 U.S. 603, 610 (1999) (noting that the Fourth Amendment "embodies [the] centuries-old principle of respect for the privacy of the home").
161. -85 U.S. (18 Wall.) 163, 168 (1873).
162. E.g., Monge v. California, 524 U.S. 721, 728 (1998) ("Nor have sentence enhancements been construed as additional punishment for the previous offense; rather, they act to increase a sentence 'because of the manner in which [the defendant] committed the crime of conviction.'" (alteration in original).
163. (quoting United States v. Watts, 519 U.S. 148, 154 (1997)(per curiam));
164. Nichols v. United States, 511 U.S. 738, 747 (1994) ("Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction. As pointed out in the dissenting opinion in Baldasar, '[t]his Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant.'"
165. (alteration in original) (quoting Baldasar v. Illinois, 446 U.S. 222, 232 (1980) (Powell, J., dissenting));
166. Gryger v. Burke, 334 U.S. 728, 732 (1948) (stating that a recidivism enhancement "is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes" but as "a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one");
167. Graham v. West Virginia, 224 U.S. 616, 623 (1912) ("They are not punished the second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted.");
168. McDonald v. Massachusetts, 180 U.S. 311, 312 (1901) ("The fundamental mistake of the plaintiff in error is his assumption that the judgment below imposes an additional punishment on crimes for which he had already been convicted and punished in Massachusetts and in New Hampshire. But it does no such thing. ⋯ The punishment is for the new crime only, but is the heavier if he is an habitual criminal.");
169. Baker v. Duckworth, 752 F.2d 302, 304 (7th Cir. 1985) ("[A] habitual criminal who receives an enhanced sentence pursuant to an habitual offender statute does not receive additional punishment for his previous offenses, or punishment for his recidivist status as such, but rather receives a more severe punishment for his most recent felonious offense.").
170. See Witte v. United States, 515 U.S. 389, 406-07 (1995) (Scalia, J., concurring in the judgment);
171. Dep't of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 804-05 (1994) (Scalia, J., dissenting).
172. See Witte, 515 U.S. at 406-07.
173. Jason White, Note, Once, Twice, Four Times a Felon: North Carolina's Unconstitutional Recidivist Statutes, 24 CAMPBELL L. REV. 115, 122-130 (2001) (noting the "fictional distinction between actual punishment and enhancement of punishment in order to rationalize the constitutionality of recidivist statutes" but nonetheless concluding that "properly drafted" recidivist laws are "legitimate" and "an essential element of American criminal law").
174. Cf. Kurth Ranch, 511 U.S. at 777 (1994) ("[T]he legislature's description of a statute as civil does not foreclose the possibility that it has a punitive character.").
175. -515 U.S. at 397;
176. Monge, 524 U.S. at 728;
177. Gryger, 334 U.S. at 732;
178. Baker, 752 F.2d at 304;
179. Davis v. Bennett, 400 F.2d 279, 281-82 (8th Cir. 1968).
180. See Monge, 524 U.S. at 728 ("Historically, we have found double jeopardy protections inapplicable to sentencing proceedings ⋯ .");
181. Nichols v. United States, 511 U.S. 738, 747 (1994) ("Reliance on [a prior] conviction is also consistent with the traditional understanding of the sentencing process, which we have often recognized as less exacting than the process of establishing guilt.");
182. see also Elizabeth T. Lear, Is Conviction Irrelevant?, 40 UCLA L. REV. 1179, 1219-20 (1993) ("[T]he Double Jeopardy Clause does not apply at sentencing ⋯ .").
183. Pepper v. United States, 131 S. Ct. 1229, 1240 n.8 (2011).
184. (citing United States v. Leung, 40 F.3d 577, 586 (2d Cir. 1994).
185. But while courts have uniformly rejected race as a relevant sentencing factor, Carissa Byrne Hessick, Race and Gender as Explicit Sentencing Factors, 14 J. GENDER RACE & JUST. 127, 132 (2010);
186. United States v. Watts, 519 U.S. 148, 151 (1997) (per curiam);
187. see also Payne v. Tennessee, 501 U.S. 808, 820-21 (1991) ("[T]he sentencing authority has always been free to consider a wide range of relevant material.");
188. United States v. Tucker, 404 U.S. 443, 446 (1972) ("[I]n determining what sentence to impose ⋯ a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.");
189. Cross v. United States, 354 F.2d 512, 515 (D.C. Cir. 1965) ("[S]entencing judges do, and are entitled to, take into account a wide range of facts and impressions gleaned from a variety of sources.");
190. United States v. Magliano, 336 F.2d 817, 822 (4th Cir. 1964) ("The District Court has been given a wide latitude in the receipt and use of information as an aid to the sentencing process . ⋯ After conviction, everything of possible pertinency may be considered ⋯ .").
191. -337 U.S. 241 (1949).
192. See, e.g., Watts, 519 U.S. at 151-52 (relying on Williams in holding that courts may increase sentences based on acquitted conduct);
193. State v. Carico, 968 S.W.2d 280, 287 (Tenn. 1998) (relying on Williams in holding that a sentence could be enhanced based on uncharged conduct without violating the Sixth or Fourteenth Amendments).
194. See Witte v. United States, 515 U.S. 389, 409-10 (1995) (Stevens, J., concurring in part and dissenting in part).
195. See, e.g., Andrew von Hirsch, Desert and Previous Convictions in Sentencing, 65 MINN. L. REV. 591, 605, 619 (1981).
196. See Witte, 515 U.S. at 402-03 (critiquing Justice Stevens' analysis);
197. Williams was overruled in the death penalty context by Gardner v. Florida, 430 U.S. 349, 362 (1977) and superseded by Federal Rule of Criminal Procedure 32(e) in the non-death penalty context.
198. -530 U.S. 466 (2000).
199. Pepper v. United States, 131 S. Ct. 1229, 1240 (2011).
200. quoting Williams, 337 U.S. at 246.
201. Pepper, 131 S. Ct. at 1239-40.
202. quoting Koon v. United States, 518 U.S. 81, 113 (1996).
203. see also Pepper, 131 S. Ct. at 1240 n.8 (noting that "sentencing courts' discretion ⋯ is subject to constitutional constraints").
204. See, e.g., United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam);
205. People v. Dunlap, No. 217123, 2001 WL 776752, at 3 (Mich. Ct. App. Jan. 16, 2001) (per curiam);
206. State v. Clark, 197 S.W.3d 598, 602 (Mo. 2006) (en banc);
207. State v. Winfield, 23 S.W.3d 279, 282-83 (Tenn. 2000).
208. See, e.g., Williams, 337 U.S. at 244;
209. State v. Green, 303 A.2d 312, 320-23, 325 (N.J. 1973);
210. State v. Carico, 968 S.W.2d 280, 287-88 (Tenn. 1998).
211. See Witte v. United States, 515 U.S. 389, 412 (1995) (Stevens, J., concurring in part and dissenting in part).
212. See, e.g., Watts, 519 U.S. at 155-57 ("The Court of Appeals failed to appreciate the significance of the different standards of proof that govern at trial and sentencing. We have explained that 'acquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt.'"
213. quoting United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361 (1984);
214. United States v. Milton, 27 F.3d 203, 208-09 (6th Cir. 1994) ("This circuit clearly allows district courts to consider acquitted conduct at sentencing. ⋯ under the theory that a determination of guilt requires proof beyond a reasonable doubt while sentencing considerations only require proof by a preponderance of the evidence." (citations omitted)).
215. U.S. CONST. amend. VIII.
216. See, e.g., Ewing v. California, 538 U.S. 11, 30-31 (2003);
217. Lockyer v. Andrade, 538 U.S. 63, 77 (2003);
218. Rummel v. Estelle, 445 U.S. 263, 284-85 (1980).
219. See, e.g., Rachel E. Barkow, The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity, 107 MICH. L. REV. 1145, 1156 (2009) ("[T]he Court has been steadfast in its refusal to police disproportionate sentences outside the capital context.");
220. Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91 VA. L. REV. 677, 695 (2005) (arguing that the Court's decision in Ewing "all but defines the right against excessive punishment out of existence");
221. Carol S. Steiker & Jordan M. Steiker, Opening a Window or Building a Wall? The Effect of Eighth Amendment Death Penalty Law and Advocacy on Criminal Justice More Broadly, 11 U. PA. J. CONST. L. 155, 184 (2008) ("[T]he Court's non-capital proportionality doctrine [has] bec[o]me more limited in its scope of relevant considerations and so deferential to state interests as to make Eighth Amendment challenges to excessive incarceration essentially non-starters.").
222. Monge v. California, 524 U.S. 721, 728 (1998) (alteration in original).
223. quoting Watts, 519 U.S. at 154;
224. see also Witte, 515 U.S. at 398 (noting that in determining the proper sentence a judge is entitled to consider the circumstances of the crime at issue, including a separate crime of which the defendant was convicted).
225. See supra note 127 and accompanying text. 131 Solem v. Helm, 463 U.S. 277, 292 (1983).
226. See Ewing, 538 U.S. at 22.
227. Suggesting that Justice Kennedy's concurrence from Harmelin v. Michigan, 501 U.S. 957 (1991), has displaced the three-part test from Solem);
228. Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring).
229. referring to Solem, 463 U.S. at 303, in which the Court rejected as unconstitutional a mandatory life sentence without the possibility of parole for a defendant who had six prior nonviolent felonies and who wrote a "no-account" check for $100).
230. -538 U.S. 11, 30-31 (2003).
231. see also Rummel v. Estelle, 445 U.S. 263, 276 (1980) (holding that "[i]n this case, however, we need not decide whether Texas could impose a life sentence upon Rummel merely for obtaining $120.75 by false pretenses," because "at the time that he obtained the $120.75 by false pretenses, he already had committed and had been imprisoned for two other felonies").
232. E.g., Richard S. Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: "Proportionality" Relative to What?, 89 MINN. L. REV. 571, 634-35 (2005);
233. -130 S. Ct. 2011 (2010).
234. -145 Ewing, 538 U.S. at 31 (Scalia, J., concurring in the judgment) ("Proportionality- the notion that the punishment should fit the crime-is inherently a concept tied to the penological goal of retribution.").
235. GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 461 (1978);
236. Andrew Ashworth, Desert, in PRINCIPLED SENTENCING 181, 182 (Andrew von Hirsch & Andrew Ashworth eds., 1992).
237. But see U.S. SENTENCING COMM'N, SUPPLEMENTARY REPORT ON THE INITIAL SENTENCING GUIDELINES AND POLICY STATEMENTS 41 (1987), available at http://www.fd.org/pdf-lib/Supplementary%20Report.pdf ("From a just punishment perspective, a defendant with a criminal history is deemed more culpable and deserving of greater punishment than a first offender.");
238. Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 HARV. L. REV. 1429, 1435-38 (2001) (explaining why current recidivism enhancement regimes are explainable only under a utilitarian rationale);
239. Turner et al., supra note 42, at 16 (identifying the policy behind three strikes legislation across the country as incapacitation); Michael Vitiello, California's Three Strikes and We're Out: Was Judicial Activism California's Best Hope?, 37 U.C. DAVIS L. REV. 1025, 1071-72 (2004) (noting that recidivist statutes are utilitarian rather than retributivist).
240. Ewing, 538 U.S. at 29;
241. see also Rummel v. Estelle, 445 U.S. 263, 276 (1980) ("[T]he interest of the State of Texas here is not simply that of making criminal the unlawful acquisition of another person's property; it is in addition the interest, expressed in all recidivist statutes, in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.").
242. Ewing, 538 U.S. at 31-32 (Scalia, J., concurring in the judgment) ("[I]t becomes difficult even to speak intelligently of 'proportionality,' once deterrence and rehabilitation are given significant weight [ ]-not to mention giving weight to the purpose of California's Three Strikes Law: incapacitation." (citation omitted).
243. (quoting Harmelin v. Michi gan, 501 U.S. 957, 989 (1991);
244. (quoting Harmelin, 501 U.S. at 1008).
245. Ian P. Farrell, Gilbert & Sullivan and Scalia: Philosophy, Proportionality, and the Eighth Amendment, 55 VILL. L. REV. 321, 323 (2010).
246. See, e.g., Ewing, 538 U.S. at 28 ("We first address the gravity of the offense compared to the harshness of the penalty.");
247. Solem, 463 U.S. at 290 ("[W]e hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted.").
248. -538 U.S. 25, 29 (alterations in original) (citation omitted).
249. (quoting Solem v. Helm, 463 U.S. at 297 n.22).
250. Notably, in Ewing "[n]o one argue[d] for Ewing's inclusion within the ambit of the three strikes statute on grounds of 'retribution.'" 538 U.S. at 51-52 (Breyer, J., dissenting).
251. Graham v. West Virginia, 224 U.S. 616, 623 (1912).
252. See, e.g., FLETCHER, supra note 146, at 460-66; RICHARD G. SINGER, JUST DESERTS: SENTENCING BASED ON EQUAL- ITY AND DESERT 67-74 (1979);
253. Alexis M. Durham III, Justice in Sentencing: The Role of Prior Record of Criminal Involvement, 78 J. CRIM. L. & CRIMINOLOGY 614, 620-21 (1987);
254. Ekow N. Yankah, Good Guys and Bad Guys: Punishing Character, Equality and the Irrelevance of Moral Character to Criminal Punishment, 25 CARDOZO L. REV. 1019, 1029-37 (2004).
255. Ewing, 538 U.S. at 28 (second alteration in original).
256. quoting Solem, 463 U.S. at 297 n.22.
257. See Dist. of Columbia v. Heller, 554 U.S. 570, 634-35 (2008).
258. See, e.g., Witte v. United States, 515 U.S. 389, 397-99 (1995);
259. Nichols v. United States, 511 U.S. 738, 747 (1994).
260. U.S. SENTENCING COMM'N, MEASURING RECIDIVISM: THE CRIMINAL HISTORY COMPUTATION OF THE FEDERAL SENTENCING GUIDELINES 10 (2004) [hereinafter MEASURING RECIDIVISM], available at http://www.ussc.gov/Research/Research- Publications/Recidivism/2004 05-Recidivism-Criminal-History.pdf;
261. see also ALLEN J. BECK & BERNARD E. SHIPLEY, BUREAU OF JUSTICE STATISTICS, RECIDIVISM OF PRISONERS RELEASED IN 1983 7 (1989) [hereinafter RECIDIVISM 1983], available at http://bjs.ojp.usdoj.gov/content/pub/pdf/rpr83. pdf ("The percents of those rearrested among released prisoners were systematically related to the extensiveness of the prior records.").
262. See, e.g., Parke v. Raley, 506 U.S. 20, 27 (1992) ("States have a valid interest in deterring and segregating habitual criminals.");
263. Benjamin B. Sendor, The Relevance of Conduct and Character to Guilt and Punishment, 10 NOTRE DAME J.L. ETHICS & PUB. POL'Y 99, 127 (1996) ("If a review of the defendant's record shows that he is an inveterate recidivist- that he has a strong and enduring inclination to break the law-then that fact shows that previous intervention by the state has not deterred him from criminal activity and that more severe punishment is warranted in order to deter him from future criminal conduct.").
264. See, e.g., Ewing v. California, 538 U.S. 11, 25 (2003) ("When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime.");
265. Marshall v. United States, 414 U.S. 417, 430 (1974) (holding that Congress could reasonably conclude that persons with two or more prior felony convictions were less likely to be rehabilitated than those with less than two prior convictions).
266. See, e.g., United States v. Watts, 519 U.S. 148, 154-55 (1997) (per curiam).
267. see also PATRICK A. LANGAN & DAVID J. LEVIN, BUREAU OF JUSTICE STATISTICS, RECIDIVISM OF PRISONERS RELEASED IN 1994 7 (2002) [hereinafter RECIDIVISM 1994], available at http://bjs.ojp.usdoj.gov/content/pub/pdf/rpr94. pdf (noting that blacks were more likely than whites to recidivate (28.5% versus 22.6%);
268. MILES D. HARER, FED. BUREAU OF PRISONS, RECIDIVISM AMONG FEDERAL PRISONERS RELEASED IN 1987 2 (1994), available at http://www.bop.gov/news/ research-projects/published-reports/recidivism/oreprrecid 87.pdf [hereinafter RECIDIVISM 1987] ("Recidivism rates were higher among blacks and Hispanics than among whites and non-Hispanics ⋯ .");
269. Duncan v. Louisiana, 391 U.S. 145, 156 (1968).
270. Cf. Laura I. Appleman, The Lost Meaning of the Jury Trial Right, 84 IND. L.J. 397, 405 (2009) (noting that the Sixth Amendment includes both an individual procedural right as well as a communal right to "decid[e] punishment for criminal offenders and ⋯ to determine moral blameworthiness").
271. See FED. R. EVID. 404(b) ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.").
272. See Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 1306-08 (2007).
273. Schall v. Martin, 467 U.S. 253, 264 (1984) ("The legitimate and compelling state interest in protecting the community from crime cannot be doubted." (internal quotation marks omitted)).
274. see, e.g., ALA. CODE § 15-18-9 (LexisNexis 1995);
275. ALASKA STAT. § 12.55.125(c)(3)(4) (2010);
276. ARIZ. REV. STAT. ANN. § 13-703 (2010);
277. WASH. REV. CODE ANN. § 9.94A.525 (West 2010);
278. U.S. SENTENCING GUIDELINES MANUAL § 4A1.1 (2010).
279. cf. United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010) (stating that the government failed to carry its burden in the intermediate scrutiny context where "[t]he government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal");
280. Wessmann v. Gittens, 160 F.3d 790, 804 (1st Cir. 1998) (rejecting anecdotal evidence and requiring statistical evidence to satisfy strict scrutiny).
281. See Maine v. Taylor, 477 U.S. 131, 144 (1986) (recognizing "the empirical component" of strict scrutiny).
282. See Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 391 (2000) ("The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.").
283. See, e.g., Nixon, 528 U.S. at 394 ("There might, of course, be need for a more extensive evidentiary documentation if respondents had made any showing of their own to cast doubt on the apparent implications of Buckley's evidence and the record here ⋯ .");
284. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-39 (2002) (making a similar observation in the intermediate scrutiny context).
285. See Oregon v. Kennedy, 456 U.S. 667, 672 (1982);
286. Illinois v. Somerville, 410 U.S. 458, 463 (1973);
287. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).
288. Wade v. Hunter, 336 U.S. 684, 689 (1949);
289. quoting United States v. Tateo, 377 U.S. 463, 466 (1964))).
290. Cf. Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 884-85 (1999) (discussing the concept of remedial deterrence and noting that in some instances "the threat of undesirable remedial consequences motivat[es] courts to construct ⋯ right[s] in such a way as to avoid those consequences").
291. See Wooley v. Maynard, 430 U.S. 705, 715-16 (1977).
292. See Schall v. Martin, 467 U.S. 253, 264 (1984) (identifying the prevention of crime as a compelling interest).
293. quoting Ashcroft v. ACLU, 542 U.S. 656, 666 (2004).
294. See, e.g., JULIAN V. ROBERTS & LORETTA J. STALANS, PUBLIC OPINION, CRIME, AND CRIMINAL JUSTICE 205 (1997) (noting that "public sentencing preferences are to a degree influenced by criminal history information," in that survey respondents support increasing sentences based on prior convictions);
295. Gary Langer, Crime and Punishment: Poll Finds Americans Forgiving of Nonviolent and First-Time Offenders, ABCNEWS.COM (Mar. 8, 2002), http://abcnews.go.com/sections/us/DailyNews/crime-punish-poll020307.html ("[T]wo-thirds of Americans favor jail time, rather than treatment programs, for repeat drug offenders. But for first-time drug offenders, the numbers again are reversed: Nearly nine in 10 prefer treatment, not jail.").
296. see Harmelin v. Michigan, 501 U.S. 957, 961 (1991) (upholding a mandatory life sentence for a first-time offender convicted of possessing 672 grams of cocaine). 191 See supra note 14. 192 Cf. Roberts, supra note 9, at 350-51 (sketching briefly how to construct a recidivism enhancement that was sensitive to the actual risk an offender would pose and noting the difficulties).