Posted by Edmund R. Folsom, Esq.
August 2, 2019
Double Jeopardy, State v. Armstrong, What’s it all About?
A recent Maine Law Court case caught some media attention for its declaration that separate sentences imposed on convictions for robbery and felony murder violated the double jeopardy clause of the U.S. Constitution’s Fifth Amendment. The Court’s ruling, in State v. Armstrong, 2019 ME 117, is hardly shocking given the obviousness of the double jeopardy violation, which was so clear that the State conceded it on appeal. What was the violation? I thought you’d never ask. Here’s how this works…
What Happened in Armstrong?
Armstrong was convicted as one of several accomplices to a robbery in which the victim was essentially beaten to death. The State charged Armstrong with felony murder and robbery. Felony murder is defined as follows:
“A person is guilty of felony murder if acting alone or with one or more other persons in the commission of, or an attempt to commit, or immediate flight after committing or attempting to commit, murder, robbery, burglary, kidnapping, arson, gross sexual assault, or escape, the person or another participant in fact causes the death of a human being, and the death is a reasonably foreseeable consequence of such commission, attempt or flight.”
Robbery involves committing or attempting to commit theft and either recklessly inflicting bodily injury on another person or using or threatening to use physical force to gain control of the stolen property or to hold onto it.
From this, you can see that causing death is not an element of robbery. In other words, felony murder has an element that robbery does not. On the other hand, committing or attempting to commit robbery is an element of felony murder, and robbery does not require any element of proof beyond those required to prove felony murder.
How Does Double Jeopardy Come Into Play?
The Fifth Amendment’s double jeopardy clause provides, “No person shall…be subject for the same offence to be twice put in jeopardy of life or limb.” As interpreted by the U.S. Supreme Court, this clause provides two distinct protections. For one, it protects us from successive prosecutions for the same offense, as in from being acquitted at trial and then prosecuted again for the same crime. For two, it protects us from receiving multiple punishments for the same offense in a single prosecution. Armstrong was only tried once for the robbery and felony murder charges, so the issue was whether he received multiple punishments for the same offense in that single prosecution.
What Does the Double Jeopardy Clause’s Phase “Same Offence” Mean?
Because the double jeopardy clause protects only against successive prosecutions for the “same offence” (spelled “offense” now that we are no longer recently colonists) and against multiple punishments for the “same offence,” it does not provide protection against successive prosecutions or against multiple punishments for crimes that are not the “same offence.” To understand what the clause does and does not protect against, we need to know the meaning of the term “same offence.” In Blockburger v. United States, 284 U.S. 299, 304 (1932), the Supreme Court announced the test to be used to determine whether two distinct statutory offenses are in fact separate offenses or the “same offense” for double jeopardy purposes. If each offense contains an element that other offense does not, they are separate offenses, otherwise, they are the “same offense.” Returning to Armstrong’s felony murder and robbery charges, they do not pass the Blockburger same elements test. Again, felony murder contains an additional element (causation of death) beyond the elements of robbery, but there is no element in the crime of robbery that is not contained in the crime of felony murder. Robbery is an included offense of felony murder.
Armstrong was convicted of both felony murder and robbery. Both are Class A crimes, punishable by a maximum of 30 years in prison. The Court sentenced him to a straight 30 years in prison on the felony murder count and to a concurrent 30 years with 1 year suspended followed by 4 years of probation on the robbery count. Under this sentence, after Armstrong served 29 years in prison his probation would have begun on the robbery count. That probation would have continued running for the remainder of 4 years upon Armstrong’s release from his 30-year felony murder sentence. But because Armstrong’s convictions and separate punishments for the two offense so clearly violated the double jeopardy clause, those separate convictions and sentences could not be allowed to stand.
How Was the Problem Fixed?
The Law Court sent the case back to the Superior Court with an order that the Court must “merge” the two counts of conviction and resentence Armstrong on the single “merged” count. Since robbery is included in felony murder but not vice versa, the thing to do is “merge” the robbery count into the felony murder count. As for the sentence to impose at that point, if the Court still wants Armstrong on probation upon release the Court will have to suspend some of Armstrong’s new sentence to leave something hanging during probation. Doing that, however, will shorten the sentence Armstrong will be required to serve by whatever time the court suspends for probation. For instance, if the new sentence is 30 years with all but 1 year suspended and 4 years of probation, Armstrong will be required to serve a sentence of 29-years in prison instead of the 30 years required under the original sentence.
One More Thing.
One additional aspect of double jeopardy law got attention recently in the U.S. Supreme Court. In Gamble v. United States, decided June 19, 2019, the U.S. Supreme Court reaffirmed that the clause does not prevent a second “sovereign” from prosecuting a person who was previously tried or punished by another “sovereign,” even though the offense at issue fails the Blockburger separate elements test and is truly the “same offense.” But that’s a horse of a different color. As a general proposition, this stuff is what double jeopardy is about. If you didn’t know before, now you do.
O.K., and One More After That…
Jeffrey Epstein’s federal prosecution in the Southern District of New York raises double jeopardy, successive prosecution, issues. Epstein is a very wealthy 66-year-old with connections to lots of players in the political class and a penchant for having his way with very young females. He was prosecuted in Florida, in a deal that involved the U.S. Attorney for the Southern District of Florida expressly foregoing prosecution of federal charges in exchange for Epstein’s plea and sentencing in state court. Epstein pled guilty to the Florida charges and served an 18-month prison sentence years ago. The double jeopardy concern stems from a comparison of the federal charges he now faces with the charges the feds agreed to forego as part of the deal back then. It will be interesting to see how that sorts out.