Sentencing & Double Jeopardy

What are different sentencing options?

Incarceration, fines, restitution, supervised release, probation, diversion

When must judges imposed statutory mandatory minimums?

Always unless safety valves apply

What factors go into sentencing?

criminal history, future dangerousness, false testimony at trial, victim impact statements, life circumstances

What are impermissible factors of sentencing?

Silence at trial/sentencing, racial bias, judicial vindictiveness

If deciding whether to enhance sentence, what can judge consider?

Criminal history; any other fact that could enhance sentence must be found by jury at trial

What are the four protections of the double jeopardy clause?

1. D cannot be prosecuted for same offense after aquittal

2. D cannot be prosecuted for same offense after conviction

3. Govt can’t impose multiple punishments for same offense

4. D has right to have case tried by particular fact finder

What is the three-step analysis for successive prosecution claims?

1. Has jeopardy attached?

2. Has jeopardy terminated?

3. Has govt prosecuted D again for same offense?

When does jeopardy attach?

When the jury is empaneled and sworn, or when a court accepts D’s pl

What are common situations where jeopardy does not attach?

Investigation, GJ indictment

When is jeopardy terminates?

When a verdict or judgment of acquittal has occurred (unless obtained by bribery); order vacating verdict (however, postverdict reversal requiring retrial on same indictment does not terminate jeopardy, such as overturning guilty verdict due to improper venue/vicinage or due to preindictment delay); implied acquittal

Does mistrial terminate jeopardy?

Only when D objects to it and there is no manifest necessity.

If it was result of manifest necessity/hopelessly hung jury OR D moves for it (unless induced by P misconduct), jeopardy not terminated

When is govt is trying to prosecute D again?

When govt resumes proceedings at trial court level or govt appeals jury verdict of acquittal

If prosecuting again, how do you determine whether the renewed prosecution is for the same offense?

If govt relitigates issue necessarily decided in prior acquittal of D, or if offenses don’t have elements distinct from eachother

When are multiple punishments for the same offense impermissible?

1. Same offense? (element(s) distinct from eachother?)

2. Did legislature intend to permit multiple punishments?

What is the dual sovereignty exception to double jeopardy?

Distinct offense if committed against distinct govt (state-state, state-fed, fed-tribe); state-county and fed-territory are not distinct; key issue is whether the govt’s authority derives from an independant source