Killing Due Process: Double Jeopardy, White Supremacy and Gang Prosecutions

Abstract

The Fifth Amendment of the U.S. Constitution holds that no person shall be twice put in jeopardy of life or limb for the same offense.  Read plainly, a person cannot be tried or punished more than once for a single crime.  Yet in recent decades, as legislatures have expanded the prosecutorial state with weapons designed to punish more criminal defendants more harshly, the U.S. Supreme Court has abrogated its duty of constitutional protection and killed due process through the evisceration of double jeopardy.  This Article argues that such an approach is flawed.  The dismantling of Fifth Amendment double jeopardy protection is the product of white supremacy, couched in a legislative intent narrative, for the purpose of expanding the carceral state.  Specifically, for gang statutes that proscribe multiple punishments, Black and Brown accused gang members are charged, tried, and punished multiple times, for a single offense, in violation of double jeopardy.

Introduction

In recent decades, legislatures have expanded the prosecutorial state with weapons[1] designed to punish Black and Brown criminal defendants more harshly—specifically with complex criminal statutes such as the Racketeer Influenced and Corrupt Organizations Act (RICO),[2] the Continuing Criminal Enterprise statute,[3] and gang statutes.[4]  This Essay will focus on gang statutes, which punish individuals who participate in a gang and commit an enumerated crime (also referred to as a “predicate act”) in furtherance of that gang.[5]  In twenty-eight states, a person need only commit one predicate act in order to be convicted under the gang statute.  This means that a person can be tried and punished twice for a single crime—once as a substantive crime (such as handgun possession or assault) and then again for that same crime in furtherance of the gang.

The U.S. Supreme Court has paved the way for these prosecutions by abrogating its duty to enforce the Double Jeopardy Clause of the U.S. Constitution.  Specifically, the Supreme Court has relegated the multiple punishment doctrine to a tool of statutory interpretation rather than a constitutional protection for criminal defendants.[6]  The dismantling of Fifth Amendment double jeopardy protection is the product of white supremacy, couched in a legislative intent narrative, for the purpose of expanding the carceral state.[7]

In this country, the descendants of the enslavers are free to storm the capital, in the name of white supremacy, during an international pandemic, in hopes of overturning a duly elected President, because they are American, and they are free.  As a descendant of formerly enslaved Africans and a product of the perpetual undercaste[8] in this America, I accept that harsh reality.  But what of the ratification of the Fourteenth Amendment to the U.S. Constitution?  Did not all provisions of the Constitution and every amendment get extended to Black and Brown people too?

In his remarks commemorating the 200th anniversary of the signing of the U.S. Constitution, Justice Marshall referenced the majority opinion in Dred Scott v. Sandford, where Chief Justice Taney stated in unequivocal terms that the law of the land does not apply to the “slave,” and “negroes” “had no rights which the white man was bound to respect.”[9]  In his retort, Marshall explained that only through a bloody civil war, five short years after the decision, could the Thirteenth Amendment be adopted to abolish slavery.[10]  In other words, the Constitution that Justice Taney declared did not apply to Black people was replaced.  “In its place arose a new, more promising basis for justice and equality, the Fourteenth Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws.”[11]

If the Union’s victory in the Civil War and the subsequent ratification of the Fourteenth Amendment bestowed due process and equal protection upon all persons, do not the original constitutional freedoms, rights, and responsibilities extend to inner city Black and Brown gang members too?

This Article declares that if we believe that “no one is free until everyone is free”[12] and that “injustice anywhere is a threat to justice everywhere,”[13] we must object to, intervene in, and correct for constitutional violations, even where the criminal defendant is the most despised and, in the eyes of the court, the most dangerous among us.  Much like the objection, rejection, and protest of the extension of the Patriot Act,[14] the negligent spreading of coronavirus among the incarcerated,[15] and the countless killings of unarmed Black people,[16] the same treatment is required in response to anti-gang statutes.  The same Constitution that ensures that “Black Lives Matter,”[17] “Women’s Rights are Human Rights,”[18] “That No Human is Illegal,”[19] “Science is Real,”[20] and “Love is Love,”[21] must be equally applied to actual or accused gang members.

This Article proceeds in five Parts.  Part I provides a case study of the imposition of multiple punishments for a single crime in the context of a gang prosecution and provides an overview of the caselaw most relevant to examining multiple punishment issues.  Part II explores the white supremacist underpinnings of current rules of criminal procedure and the proliferation of organized crime statutes, including gang statutes.[22]  Part III demonstrates that under a proper constitutional analysis, convictions under gang statutes that require only one predicate act violate a defendant’s double jeopardy rights.  Part IV addresses the Supreme Court’s killing of due process by reducing the same offense test for simultaneous double jeopardy (also called multiple or cumulative punishment), specifically through the Court’s holding in Missouri v. Hunter[23] that legislative intent overrides the Fifth Amendment Double Jeopardy Clause prohibition against multiple punishment.  Part V argues that the premise that legislative intent can override constitutional protections such as double jeopardy is flawed and contrary to precedent.

I. Multiple Punishment Prosecutions

This Part provides a gang prosecution case study where the double jeopardy principle of multiple punishment is violated, then highlights the seminal case of Blockburger v. United States,[24] and other cases critical to understanding the multiple punishment analysis.

A. Multiple Punishment Case Study: Maryland v. KA

On October 17, 2012, KA was stopped in the Greenmount area of Baltimore City[25] by police officer Robert Wigley.  The officer believed that KA was carrying drugs.[26]  KA was charged with possession with the intent to distribute cocaine, heroin, and marijuana.  On January 16, 2013, KA appeared for trial in the District Court for Baltimore City.[27]  On that date, KA’s case was dismissed and entered as a nolle prosequi.[28]

Ten months later, KA was charged in an eight-count criminal indictment.  The State of Maryland alleged that the October 17, 2012 possession of cocaine, heroin, and marijuana was in furtherance of the Black Guerilla Family (BGF).[29]

Count one of the indictment alleged that KA “conspired to establish and entrench a gang” with “two primary objectives . . . violent crimes and the distribution of controlled dangerous substances.”[30] Count two alleged that KA “participate[d] in a criminal street gang” and that he participated in the commission of a crime “for the benefit of, at the direction of, or in association with [the] criminal gang.”[31]  The indictment then includes 100 different criminal acts allegedly performed by BGF members.[32]

The remaining six counts were for drug possession, possession with the intent to distribute, or distribution.  Of the 100 acts performed in furtherance of BGF, just two alleged direct participation by KA.  Predicate act seventy-nine alleged that on October 17, 2012, KA possessed with intent to distribute heroin, cocaine, and marijuana.  Predicate act eighty alleged that on October 31, 2012, KA distributed cocaine.

A jury found KA not guilty of the October 31 indictment.[33]  The Double Jeopardy Clause prohibits prosecution of the October 31 charge ever again.[34]  At the time of the 2013 indictment, KA’s sole unadjudicated crime in furtherance of BGF was the October 17, 2012 allegation.[35]

In Maryland, a criminal defendant need only commit one predicate act in furtherance of a gang to violate the state’s anti-gang statute.[36]  This means, at the exact moment of KA’s October 17 drug possession, he was simultaneously in violation of the gang statute and could be punished for violating both statutes consecutively.  The Supreme Court holds that this type of multiple punishment comports with the Constitution as long as the legislature intends it to.[37]  This Article rejects the constitutionality of this contention and argues that this deference to legislative intent is an abrogation of the Supreme Court’s constitutional duties.

B. Short History of Multiple Punishment Double Jeopardy

To understand the development of the Supreme Court’s double jeopardy jurisprudence and the arguments of this Essay, a brief explanation of the four “distinct subspecies”[38] of double jeopardy is necessary.  (1) Classic double jeopardy, also known as successive prosecution, derives from the common law pleas of autrefois convict[39] and autrefois acquit.[40]  This simply means that the government cannot prosecute someone for an offense for which they were already convicted or acquitted, or any final judgement to which jeopardy attached.  (2) Simultaneous double jeopardy precludes consecutive sentences for the same offense in a single proceeding.[41]  An offense that makes up part of a more serious offense will merge with the more serious offense at sentencing.  (3) Defendants are protected from retrial following a mistrial, unless the decision to call a mistrial was considered absolutely necessary.[42]  (4) Finally, the doctrine of collateral estoppel prohibits the relitigating of facts already determined by a valid, final judgment.[43]  Each type of double jeopardy requires a distinct analysis to determine whether a defendant’s Fifth Amendment double jeopardy rights were violated.  This Essay is primarily concerned with the second species of double jeopardy, which bars multiple punishments imposed in a single proceeding for the same offense.

The Fifth Amendment Double Jeopardy Clause states that no person may be tried twice for the same offense.  Thus, in any issue of double jeopardy, the court must determine whether the different charges being brought, or punishments sought are indeed for the same offense.  Blockburger v. United States established the rule for determining whether two offenses are the same or different.[44]  Courts determine whether there are two offenses or only one by asking whether each provision requires proof of a fact which the other does not.  A single act may be an offense against two statutes; if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

Since Blockburger, a number of Supreme Court cases have applied and clarified the same elements test and its application to compound criminal statutes such as RICO, the Continuing Criminal Enterprise statute, and gang statutes.  This Subpart discusses three of the most relevant cases for gang statutes.

First, in Brown v. Ohio[45] the Supreme Court clarified that an act which violates two statutes is considered the “same offense” where one statute contains all of the elements required to prove the other statute, making one statute a lesser included offense of the other.[46]  Nathaniel Brown was charged with joyriding for driving a stolen vehicle, pleaded guilty and served his time, and then upon release was charged with auto-theft for the same incident of driving the stolen vehicle.[47]  The Supreme Court held that double jeopardy prevented the second prosecution, because joyriding was a lesser included offense of auto theft—the joyriding statute does not require proof of any fact that the auto theft statute does not already require.[48]  The Supreme Court expanded on this when describing the Brown decision in a later case, stating that “[e]very minute that Nathaniel Brown drove or possessed the stolen automobile he was simultaneously committing both the lesser included misdemeanor and the greater felony . . . .”[49]  As discussed in detail below, this is particularly relevant for gang statutes that require only one predicate act, because, as in Brown, a person who commits an underlying crime is simultaneously in violation of the statute proscribing that conduct (for example, possession of a handgun) as well as the state gang statute.

In Garrett v. United States, the Supreme Court examined the issue of the same offense in the context of a compound criminal statute.  The case concerned § 848 of the Drug Abuse Prevention and Control Act, which prohibits individuals from taking part in a continuing criminal enterprise (CCE).[50]  Like gang statutes, a person who commits a CCE offense may be liable for the specific criminal acts (namely, drug sales) as well as the crime of participating in a CCE.  The analysis that the Supreme Court conducted in Garrett, along with the analysis in Diaz discussed below, highlights clear distinctions between gang statutes and CCE.

The Supreme Court in Garrett created a three-step test for examining issues of double jeopardy when a defendant has been previously convicted in a complex criminal case: (1) the court must determine the legislative intent for the organized crime statute to be a separate offense, (2) the individual facts must pass the Blockburger test to survive double jeopardy, and (3) in multiple punishment prosecutions where consecutive sentences are being given in a single proceeding, the court will determine whether the legislature intended to impose cumulative punishments for each offense.[51]

First, the Supreme Court analyzed whether Congress intended that the marijuana offense and the CCE offense be separate offenses, finding that it was indeed the case.[52]  Second, the Court applied the Blockburger test, to determine whether the successive prosecution was constitutional.  The Court found that the defendant’s marijuana charge was not the same offense as a CCE offense under Blockburger.  Specifically, at the time Garrett was charged with the marijuana offense, the CCE offense—which requires a series of at least three substantive crimes[53]—had not yet been completed.  In other words, it was not until the moment Garrett committed the third of the required crimes did he commit a CCE offense.  The two offenses were thus separate under Blockburger.

As the third and final step in the analysis, the Court examined whether double jeopardy barred cumulative punishments for the separate offenses of marijuana importation and participation in a CCE.[54]  The Court noted that because Congress created two separate offenses under Blockburger, the presumption is that consecutive sentences are authorized.[55]

Lastly, in the case of Missouri v. Hunter, the Supreme Court provided the basis for the third step of the Garrett test.  The Court held that the determination of whether multiple punishments could be authorized for a single offense was limited to analyzing whether the legislature intended to authorize multiple punishments, regardless of the Blockburger analysis or any other constitutional analysis.[56]  Part IV of this Article provides the background to the Hunter decision and argues that it was unsupported by precedent and violates principles of due process.

II. White Supremacy and Criminal Liability

Double jeopardy evisceration is the direct result of the white supremacist political, economic, structural and cultural forces entrenched in the United States.[57]  This Part explores the concept of white supremacy and its implications for the courts, the structure of the criminal justice rules and procedures, and finally the development of gang statutes.

A. White Supremacy in the Courts

This nation and its market economy were founded by elite white enslavers and colonizers.  Systemic racism and white supremacy are deeply embedded in our very laws, institutions, and entire capitalist system.  Thus, the expansion of criminal liability and erosion of double jeopardy are just recent expressions of white supremacy weaponized to maintain our country’s foundational classist and racist structures notwithstanding many attempts (such as the passage of the Fourteenth Amendment) to dismantle the same through democratic process.

The Supreme Court of the United States is the quintessence of a white supremacist establishment.  Since its founding, the Supreme Court has been one of the most powerful forces for perpetuating white supremacy.  The people who have served on the high Court are themselves a testament to this: Of the 115 Supreme Court Justices in the last 231 years, 112, or over 97 percent, have been white, and only three were people of color.  Amongst former President Donald Trump’s record-setting appointment of fifty-four judges confirmed to the United States Court of Appeals in a single term—the judges who settle most federal law in the land—none are Black, and only one is Latinx.[58]

When not affirmatively advocating for white supremacy, the Supreme Court has been either oblivious to or wholly dismissive of its existence as a reality in our country, even though this is widely accepted among social scientists, historians, and scholars in countless fields.  Yet, on a few notable occasions, the Court has revealed its consciousness of structural, systemic racism in our legal and criminal justice system.  Legal scholar Peggy Cooper Davis argues that the 1967 Supreme Court decision in Loving v. Virginia was “the first and the only case in which the Supreme Court explicitly recognized the existence of white supremacist social ordering and declared that ordering inconsistent with principles for which the United States has stood . . . .”[59]  Davis points out that if the Court simply acknowledged that the existence of white supremacy was not cabined solely to its expression in anti-miscegenation statutes, its constitutional jurisprudence on everything from housing to schooling to employment discrimination to criminal prosecution might be very different.[60]

Since Davis’s article, there has been arguably one other Supreme Court decision where the Justices explicitly acknowledged the existence of white supremacy.  Writing for the majority in Ramos v. Louisiana, Justice Gorsuch explained how Louisiana’s authorization of non-unanimous jury verdicts for serious crimes originated in the state’s 1898 constitutional convention where the avowed purpose of that convention was to “establish the supremacy of the white race.”[61]

B. Racist Structure of Criminal Justice Rules and Procedures

The rules of criminal procedure were developed for the purpose of preserving a racial caste system.  Ion Meyn argues and supports through historical records that the difference in the due process protections afforded to parties in civil cases versus criminal cases was not accidental, but rather intentionally designed to further subjugate Black people in America.[62]  Meyn explains that in 1935 the world of civil litigation was virtually all white.  In the world of criminal law, the lawyers and prosecutors were also nearly all white, while the criminal defendants were disproportionately Black.[63]  Criminal law was regularly used to maintain the social order established by slavery and Jim Crow.[64]

Meyn explores the role of procedure in upholding the racial caste system, finding that early procedural rules were blatantly racist, and “[i]n the early twentieth century, as laws that explicitly discriminated by race became vulnerable to legal challenge, jurisdictions [instituted] race neutral procedures that in practice were discriminatory.”[65]  For example, procedures allegedly instituted to improve “efficiency” of courts were used instead to ensure quick guilty verdicts of Black people so that mobs could lynch them without delay.[66]  Meyn argues that racial motivations for criminal procedure became especially clear when compared with changes to civil procedure:

As the civil rules ushered in modern expectations of fact development, notice, transparency, and deliberation, the criminal courtroom would also undergo a transformation (beginning in 1941).  The prosecutor would be empowered, the defendant disarmed.  The new criminal rules removed the judge as the gatekeeper, imbuing the prosecutor with unreviewable discretion to make racially discriminatory sorting decisions that served societal norms.  The new rules permitted prosecutors to stack charges in a single case to increase leverage.[67]

C. Racist Underpinnings of Gang Statutes

The plague of white supremacy in our legal institutions goes well beyond the judiciary and the rules of criminal procedure into the legislative branch that develops criminal law and the federal and state executive branches that decide how prosecutors pursue criminal convictions.  This is particularly true for compound criminal crimes that punish a person for committing a crime in furtherance of a criminal organization.[68]

A 2012 study by scholar Jordan B. Woods found that RICO has been disproportionately used against racial minorities.[69]  Woods argues that the government has labeled certain criminal groups as gangs for the express purpose of allowing for RICO prosecutions.[70]  Woods further demonstrates that:

[T]his labeling may be driven by systemic racial biases that marginalize entire racial minority groups and privilege mainstream nonimmigrant White communities . . . .  Conflating gang activity with racial minorities enables the government to rely upon denigrating racial stereotypes in order to engage in invidious practices of racial profiling and conduct sweeping arrests of racial minorities under RICO.[71]

RICO laid the foundation for gang statutes.[72]

The proliferation of gang statutes is also based on a racialized myth of gang violence unsupported by actual statistics regarding gangs and crime.[73]  Unsurprisingly, gang statutes have been widely criticized for targeting Black and Brown people.  A 2019 article summarized the alarming statistics as follows:

Across the nation, over ninety percent of people added to gang databases are Black or Latino, most with no serious criminal records, while studies suggest that at least twenty-five percent of gang members are white, and openly violent white supremacist gangs avoid this intense policing.  In New York City (NYC), ninety-nine percent of the people included in the New York Police Department’s (NYPD) gang database are Black or Latino and only one percent are white.  In Chicago, nearly ninety-six percent of the people included in the Chicago Police Department’s gang database are Black or Latino, and a majority of those included have never been arrested for a violent offense or weapons charge.  In Mississippi, one hundred percent of the people arrested under the State’s gang law from 2010 through 2017 were Black, despite Mississippi’s own Association of Gang Investigators saying that fifty-three percent of “verified gang members” are white.[74]

Professor K. Babe Howell explains that in New York, policing resources were given to gang policing despite evidence that gangs were playing a minimal role in violent crime in New York City.[75]  She argues that this shift in resources came to provide a method by which the NYPD could monitor youth of color just as the end of stop-and-frisk threatened this practice.[76]

Scholar Brian W. Ludeke documents how prosecutors in Malibu, California—a city just west of Los Angeles, known for its wealthy celebrities and beaches—refused to use gang statutes against the violent, mostly white Malibu Locals Only (MLO) gang when the group carried out a string of violent assaults.  Detective J.P. Manwell refused to label them a gang, referring to their crime—which included assault with a deadly weapon, witness intimidation, and MLO tagging—as “wannabe gang-type activity.”[77]  Deputy Vic Paladino quelled the concerns of Malibuers at a City Council meeting by insisting MLO was not a gang, but merely a group of “territorial youths.”[78]  This is despite the fact that the California Street Terrorism Enforcement and Prevention (STEP) Act defines “criminal street gang” as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more [enumerated criminal acts] . . . .”[79]

Increased prosecutorial discretion and the ability to stack charges without limits has a direct effect on people facing gang charges today—including KA.  This discretion, coupled with the rise of complex criminal liability—stemming directly from our country’s racial caste system—empowers prosecutors to threaten alleged gang members with alarmingly long sentences for even low-level crimes, ensuring continued mass incarceration of Black and Brown people and furthering white supremacy.  Unchecked prosecutorial discretion has been sanctioned by the Supreme Court through its adoption of a legislative intent doctrine.  By deferring to the intent of state legislatures in creating these racist sentencing regimes and refusing to subject such legislation to double jeopardy analysis, the Supreme Court has abrogated its duty to protect the constitutional rights of these defendants.

III. Gang Statute Prosecutions

This Part argues that under a proper constitutional analysis, in states with gang statutes that require only one predicate act, the sentences for the predicate act and the gang conviction must merge at sentencing.  Specifically, because the gang and the predicate act are the same offense under Blockburger, and are violated simultaneously, consecutive sentences for the predicate act and gang statute violation constitutes a double jeopardy violation like the one in Brown v. Ohio.  However, under Hunter, such punishments are authorized notwithstanding the constitutional violation.

This Part will outline the double jeopardy analysis for gang statutes under Blockburger, Brown, and Garrett, demonstrating why the sentences must merge.  The remaining Parts address the role that Hunter plays in undermining that analysis and argue that the decision in Hunter was without precedential authority and against the principles of judicial review and Supreme Court protections against legislative overreach.

A. Violating Two Criminal Statutes With One Criminal Act

In KA’s case discussed above, the defendant was charged with two alleged criminal acts in furtherance of BGF—drug possession with intent to distribute from October 17 and drug possession distribution from October 31.  KA was acquitted of the October 31 charge; thus, the sole valid predicate act was one incident of drug possession from October 17.[80]

In a similar prosecution, Minh de Lam,[81] was charged with gambling and violating Texas’s gang statute.[82]  Mr. Lam was accused of engaging in organized criminal activity through operating and participating in the earnings of a gambling place—in other words, gambling in furtherance of the gang.

KA and Mr. Lam’s cases are instructive.  Like KA, Mr. Lam was charged with and convicted of a substantive crime in addition to a state gang statute requiring a sole predicate act.  Mr. Lam argued, unsuccessfully, that the gambling charge was a lesser included offense of the gang charge.[83]  The court rejected Mr. Lam’s argument and ultimately punished him twice for the same offense—he was punished for gambling, and he was punished again for the same incident of gambling, this time under the Texas gang statute.

Applying the Garrett test to these prosecutions demonstrates the multiple punishment double jeopardy violation.  Under step one of the test, there is no issue—the legislature in each case intended to create a separate offense by creating a gang statute in addition to the statutes that prohibit the underlying crimes.  However, under step two these prosecutions fail the Blockburger test.

To demonstrate, KA’s drug distribution case required proof beyond a reasonable doubt of (1) possession of a controlled dangerous substance (CDS);[84] and (2) transfer of the CDS to another person.[85]  In KA’s gang case, the gang statute required proof beyond a reasonable doubt of (1) three or more participants; (2) who engage in a pattern of criminal activity; (3) an organizational structure and (4) at least one predicate act.  In KA’s case the predicate act was drug distribution.  So, in addition to the four elements of the gang statute, the prosecution had to prove beyond a reasonable doubt the additional two elements of drug distribution.[86]  In other words, the drug charge did not require proof of any fact that the gang charge did not already require.  Rather, the drug charge was a lesser included offense of the gang charge.

In Mr. Lam’s case, the gambling charge was a lesser included offense of the gang charge.  As in Brown where the defendant committed the car theft and joyriding literally simultaneously, every minute that KA was distributing heroin or Mr. Lam was gambling, they were simultaneously violating the gang statute by distributing heroin and gambling on behalf of the gang.  This is unlike a CCE charge which requires proof of three separate crimes, such that when the defendant is committing any single crime he is not automatically violating the CCE statute.

The third step in Garrett asks whether multiple punishments are authorized.  In Garrett, the Court stated that where the legislature has created two distinct offenses under Blockburger, the assumption is that they intended to authorize cumulative punishment.  However—as described above in step two—when gang statutes require only one predicate act, the gang statute and the predicate act are the same offense under Blockburger.  The presumption thus changes, and the assumption is that cumulative punishments are not authorized.[87]

In sum, the constitutional analysis outlined in Blockburger, Garrett, and Brown demonstrates that it is a violation of double jeopardy to impose cumulative punishments for a single predicate act and a gang statute.[88]

The next Part discusses the effect of Hunter on that analysis and argues that Hunter should be overturned in order to protect Defendant’s due process rights.  It is important to note that the issue of legislative intent only arises when a person is being given cumulative sentences at a single trial.  It is undisputed that the Fifth Amendment prohibits a person from being re-tried at a second trial for an offense for which there has been a valid and final judgment and jeopardy attached.[89]

IV. Without Authority and Undeserving of Respect: The Death of the Multiple Punishment Protection

During the tough on crime[90] era of the late twentieth century, the sound principal of one act, one crime was eviscerated in favor of legislatures proscribing unlimited punishments for the same offense.  As George C. Thomas III explains, “[i]n 1975 the United States Supreme Court began to imply that punishments are multiple in a constitutional sense only when they exceed the punishment authorized by the legislature.  Under this view, the question of when punishments are multiple is essentially one of statutory construction.”[91]

The war on drugs in the 1970s and 80s and the rise of mass incarceration gave cover for the Supreme Court to steadily eliminate defendants’ protection against multiple punishment for the same offense during a single proceeding.  The Supreme Court further eviscerated the constitutional protections that would prevent exorbitantly long sentences for criminal acts by emptying the Fifth Amendment of its double jeopardy protection against multiple punishments for a single act.  This was most clearly seen in the cases of Whalen v. United States,[92] Albernaz v. United States,[93] and Missouri v. Hunter.[94]

In early cases such as Ex Parte Lange,[95] the Supreme Court used strong language to describe the importance of protecting individuals from being punished multiple times for a single act during a single proceeding.  Yet the Court began to dismantle this language—through dicta—in Whalen,[96] decided in 1979.

In Whalen, the defendant was convicted of rape and killing the same victim during perpetration of rape.  He was sentenced consecutively on both charges.[97]  The District of Columbia enacted a statute mirroring the language of the Blockburger test.[98]  The Court applied Blockburger and determined that cumulative sentences were not authorized.[99]  Neither provision required proof of a fact that the other did not, therefore cumulative sentences would violate double jeopardy.[100]  In concurring and dissenting opinions, Justices White, Blackmun, and Rehnquist expressed their beliefs that the Double Jeopardy Clause was irrelevant to issues of cumulative punishment, and the only relevant question was congressional intent.[101]  Justice Rehnquist noted that the court had not previously held explicitly that legislative intent is controlling in a multiple punishment analysis.[102]  And though the majority did not reach this conclusion in Whalen, the concurring and dissenting opinions proved prescient.

The Court heard the case of Albernaz v. United States a year later.[103]  In Albernaz, two defendants were convicted of separate counts of conspiracy to import marijuana and conspiracy to distribute marijuana based on the same drug operation.[104]  The defendants received consecutive sentences.[105]  The combined sentences exceeded the five-year maximum sentence for either conspiracy conviction.[106]  Justice Rehnquist, citing to Whalen, held that the dispositive question in cumulative punishment cases was the question of legislative intent to authorize separate punishments.[107]  This was not the  majority holding in Whalen.[108]  Justice Rehnquist thus lifted his dissent in Whalen, and what his colleagues expressed via concurrences, and passed them off as controlling law.

The final nail in the coffin for cumulative punishment came in Hunter v. Missouri, discussed above.  Citing Whalen and Albernaz—a shaky foundation built on concurrences and dissents—the Supreme Court held definitively that where Congress intends to authorize cumulative punishments, it may do so with no constitutional limits.  The Court cites no historical or constitutional basis for such a holding.

Not all courts or judges were willing to go along with this evisceration of the Constitution.  In his dissent in Hunter, Justice Marshall, joined by Justice Stevens, argued:

If the prohibition against being “twice put in jeopardy” for “the same offence” is to have any real meaning, a State cannot be allowed to convict a defendant two, three, or more times simply by enacting separate statutory provisions defining nominally distinct crimes.  If the Double Jeopardy Clause imposed no restrictions on a legislature’s power to authorize multiple punishment, there would be no limit to the number of convictions that a State could obtain on the basis of the same act, state of mind, and result.[109]

The Missouri Supreme Court also resisted such deference to legislative intent in the Sours v. State[110] decisions, outlined by Thomas.[111]  The Missouri court stated that:

We believe that such a ruling would abolish traditional double jeopardy protection against multiple punishments for the same offense.  It would require a bifurcation of the meaning of “same offense” under the [D]ouble [J]eopardy [C]lause.  It would grant the state legislature the power to define the meaning of “same offense” as used in the [D]ouble [J]eopardy [C]lause of the Constitution, a traditional judicial function.  The implicit effect of such a holding would be that the [D]ouble [J]eopardy [C]lause would hereafter be only a limitation on the executive and judicial branches, but not on the legislative branch of government.[112]

Scholars have also noted the constitutional problems with the Hunter decision.  John F. Stinneford argues that the Supreme Court’s legislative intent multiple punishment doctrine flies in the face of the original purpose of the Constitution’s Double Jeopardy Clause.[113]  Stinneford first notes that that the Double Jeopardy Clause and the prohibition against cruel and unusual punishments were both developed for the “prevention of excessive punishment measured against a baseline of longstanding common law practice.”[114]  Stinneford finds that “[t]he historical record supports the conclusion that the Double Jeopardy Clause was originally meant, at least in part, to prohibit multiple punishments.”[115]  Stinneford analyzes recent deference to legislative intent against this backdrop.  He concludes that allowing the legislature to impose multiple punishments for a single crime as they see fit directly contradicts the values of individual liberty enshrined in both the Double Jeopardy Clause and the prohibition against cruel and unusual punishment.[116]

Given the complementary nature of the Cruel and Unusual Punishments Clause and the Double Jeopardy Clause, as well as the founding generation’s concern that legislative freedom to create new crimes and authorize new punishments could lead to abuse, it seems fair to conclude that the Double Jeopardy Clause was originally meant to impose some kind of constraint on the legislature.[117]

V. The Constitution Supersedes Legislative Intent

As described above, despite the clear language and purpose of the Double Jeopardy Clause[118] to prevent such prosecutorial overreach, the Supreme Court has held that a person can be punished twice for the same crime if the legislature so intends.[119]

This Part argues that in allowing legislative intent to control the determination of multiple punishments double jeopardy protection, the Supreme Court has abrogated its constitutional duties and paved the way for egregious prosecutorial overreach that results in mass incarceration of Black and Brown people.  Courts that defer to legislative intent without engaging in a Blockburger analysis or other interpretations of the Fifth Amendment Double Jeopardy Clause are neglecting their constitutional duty.

Marbury v. Madison[120] established that the Supreme Court has the power to set the law of the land and is the final arbiter of the Constitution.[121]  If Congress passes a law that is unconstitutional, the Court need not defer to legislative intent.[122]  In several historic cases the Supreme Court has overruled explicit Congressional intent.

A. Legislative Intent: Heller, Loving and Weems

In District of Columbia v. Heller,[123] the Supreme Court considered the constitutionality of a District of Columbia statute that prohibited the possession of handguns.[124]  The intent of the legislature to ban the use of handguns was indisputably clear.  The Supreme Court, however, did not defer to this intent.  Instead, the Court engaged in a lengthy discussion of the language and historical context of the Second Amendment and concluded that the statute was unconstitutional, notwithstanding legislative intent.[125]

Similarly, in Loving v. Virginia,[126] the Supreme Court considered a law that prohibited interracial marriage.[127]  The Court noted that “the State argues . . . this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.”[128]  The Court then rejected such deference to legislative intent, instead relying on the mandate of the Fourteenth Amendment Due Process Clause to find the statute unconstitutional.

Indeed, the Court’s complete reliance on the legislature would mean that fundamental constitutional rights, such as those at issue in Heller and Loving, are in the hands of the legislature rather than guaranteed under the Constitution.  The prevailing argument as applied to the Fifth Amendment Double Jeopardy Clause, is that the legislature has the power to set crimes and fix punishments unrestrained by the Constitution.  Yet the Eighth Amendment explicitly limits the legislature’s power to fix punishments that cannot bypass the constitutional prohibition on cruel and unusual punishment.[129]

In Weems v. United States[130] the Supreme Court considered the Cruel and Unusual Punishments Clause of the Eighth Amendment.  In Weems, the defendant was charged under section 56 of the Penal Code of the Philippine Islands, then a United States colony.[131]  Weems was convicted of falsifying a document and was sentenced to hard labor, as prescribed by relevant law.  The Court held that the legislature has the power to define crimes and fix their punishment, “unless that power encounters in its exercise a constitutional prohibition.  In such case, not our discretion, but our legal duty, strictly defined and imperative in its direction, is invoked.”[132]

Put simply, the legislature has the power to set crimes and fix punishments unless they do so in a way that violates the Constitution.  For the Eighth Amendment, the touchstone is proportionality.[133]  For the Fifth Amendment, the touchstone is Blockburger and whether a person is being put in jeopardy twice for the same offense.[134]  Thus, while legislative intent is part of the double jeopardy analysis, the legislature is not determinative or foreclosing.

Stinneford argues that the demotion of multiple punishment protection to a tool of statutory construction occurred because of a rise in instrumentalism, a legal philosophy under which permanent values like individual liberty are abandoned in favor of using the law to effectuate society’s wishes at any given moment.[135]

Yet the shift toward stripping down the protection against multiple punishments cannot be understood outside of the racialized moment in which it occurred.  The earliest double jeopardy decisions—which occurred during the nineteenth century—consisted of courts striking down attempts by the state to inflict multiple punishments for the same crime.[136]  Rather than discussing legislative intent, the Supreme Court considered the double jeopardy issue using a version of the Blockburger test.  The decisions that legislative intent would control the multiple punishment doctrine occurred in the 1980s—during the war on drugs.

The primary goal of the criminal justice system in the 1980s was the mass incarceration of Black and Brown people.[137]  The complex criminal liability statutes that trigger cumulative punishments for a single act are used disproportionally—almost exclusively, in the case of gang statutes—against Black and Brown people.[138]  Just as the Supreme Court furthered the goal of mass incarceration by removing Fourth Amendment protections against searches and seizures, it allowed unconscionably long sentences for a single act through the evisceration of multiple punishments protection that the Double Jeopardy Clause once provided—effectively killing due process.  When it comes to criminal policy in the 1980s, instrumentalism is best called white supremacy.

Conclusion

Prior to the Thirteenth and Fourteenth Amendments, the twelve proceeding amendments provided no more protections to Black and Brown people than provided to a horse.[139]  The Thirteenth Amendment ended chattel slavery in this country for all people without first being duly convicted of a crime.[140]  The Fourteenth Amendment was clearly intended to extend the first ten Amendments to the bodies of those who were formerly enslaved.  The concerted effort by the U.S. Supreme Court to abrogate its duty through the legislative intent doctrine and now limit the import of those first twelve amendments—while simultaneously and disproportionally prosecuting and imprisoning Black and Brown persons—maintains a social order built on white supremacy.  To revive due process and breathe life back into what is purported to be a living document, the Supreme Court, legislatures, prosecutors and the public must respect the Constitution and all its Amendments, just as they did when it only applied to landholding white men.


[1].     This Article uses the word weapons rather than tools because the prosecutorial state designs and weaponizes laws against Black and Brown people in furtherance of mass incarceration.

[2].     The Racketeer Influenced and Corrupt Organizations Act (RICO) provided a new weapon for prosecutors to target perceived organized crime and its financial impact on the United States. 18 U.S.C. § 1961.

[3].     Continuing Criminal Enterprise, 21 U.S.C. § 848.  This statute prohibits a person from committing certain enumerated crimes as a part of a continuing series of violations undertaken in concert with five or more persons if such person has a supervisory, organizer, or management position, and from which such person obtains substantial income or resources. Id.  §848(c)(A)–(B).

[4].     State gang statutes permit trials based on criminal allegations that have been previously tried, pled, or dismissed with prejudice, in contradiction to the limitation of the Fifth Amendment of the U.S. Constitution.  See David R. Truman, The Jets and Sharks Are Dead: State Statutory Responses to Criminal Street Gangs, 73 Wash. U. L.Q. 683, 720–21 (1995) (exploring the rise of anti-gang legislation and how California’s Street Terrorism Enforcement and Prevention Act and statutes that followed it are modeled after federal racketeering law).

[5].     See Md. Code Ann., Crim. Law. § 9-804 (West 2020), for an example of a gang statute prohibiting an individual from participating in a criminal organization and participating in an underlying crime for the benefit of that organization.  Both elements are required, thus a person must participate in a gang and commit an underlying crime in order to be guilty under the gang statute.

[6].     In Missouri v. Hunter, 459 U.S. 359, 368 (1983), the U.S. Supreme Court held definitively that if Congress intended to impose multiple punishments for a single crime, those punishments do not violate the Constitution.  In doing so, the Supreme Court gave free reign to the legislature to authorize unlimited punishments for a single crime, without regard to double jeopardy.

[7].     See Frances Lee Ansley, Stirring the Ashes: Race, Class and the Future of Civil Rights Scholarship, 74 Cornell L. Rev. 993, 1024 n.129 (1989) (“By ‘white supremacy’ I do not mean to allude only to the self-conscious racism of white supremacist hate groups.  I refer instead to a political, economic and cultural system in which whites overwhelmingly control power and material resources, conscious and unconscious ideas of white superiority and entitlement are widespread, and relations of white dominance and non-white subordination are daily reenacted across a broad array of institutions and social settings.”).

[8]      See Isabel Wilkerson, Caste: The Origins of Our Discontents 17(2020) (“A caste system is an artificial construction, a fixed and embedded ranking of human value that sets the presumed supremacy of one group against the presumed inferiority of other groups on the basis of ancestry and often immutable traits, traits that would be neutral in the abstract but are ascribed life-and-death meaning in a hierarchy favoring the dominant caste whose forebears designed it.  A caste system uses rigid, often arbitrary boundaries to keep the ranked groupings apart, distinct from one another and in their assigned places.”).

[9].     Thurgood Marshall, Remarks of Thurgood Marshall at the Annual Seminar of the San Francisco Patent and Trademark Law Association (May 6, 1987). Marshall continued his remarks by quoting Justice Taney, stating the following:

[O]n the issue whether, in the eyes of the Framers, slaves were ‘constituent members of the sovereignty,’ and were to be included among ‘We the People’:  “We think they are not, and that they are not included, and were not intended to be included . . . .  [A]ccordingly, a negro of the African race was regarded . . . as an article of property, and held, and bought and sold as such . . . .  [N]o one seems to have doubted the correctness of the prevailing opinion of the time.

Id. (referencing Scott v. Sandford, 60 U.S. 393 (1857)).

[10].   Id.

[11].   Id.

[12].   See Jon Greig, ‘Nobody’s Free Until Everybody’s Free’: Fannie Lou Hamer’s Legacy is More Important Now Than Ever, Blavity (Oct. 7, 2019, 4:17 PM), https://blavity.com/blavity-original/nobodys-free-until-everybodys-free-fannie-lou-hamers-legacy-is-more-important-now-than-ever?category1=politics [https://perma.cc/Q4YF-5579].

[13].   See “Letter from Birmingham Jail [King, Jr.],” Afr. Stud. Ctr. - Univ. of Pa.  https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html [https://perma.cc/XA6G-W6KM] (last visited Jan. 6, 2021).

[14].   See Surveillance Under the USA/Patriot Act, ACLU, https://www.aclu.org/other/surveillance-under-usapatriot-act [https://perma.cc/K2V8-QC8X] (last visited Jan. 3, 2021).

[15].   See Michael J. Bentley, Erin D. Saltaformaggio & Michael Casey Williams, The Coronavirus (COVID-19), Prisons, and the Eighth Amendment, Bradley (Mar. 24, 2020), https://www.bradley.com/insights/publications/2020/03/the-coronavirus-covid19-prisons-and-the-eighth-amendment [https://perma.cc/NQ3W-7LGG].

[16].   See, e.g., Brandon Tensley, Ahmaud Arbery and the Resilience of Black Protest, CNN (May 12, 2020, 8:54 PM), https://www.cnn.com/2020/05/12/politics/ahmaud-arbery-black-protest-pandemic/index.html [https://perma.cc/LFA8-DX8J]; Kim Parker, Juliana Menasce Horowitz & Monica Anderson, Amid Protests, Majorities Across Racial and Ethnic Groups Express Support for the Black Lives Matter Movement, Pew Rsch. Ctr. (June 12, 2020), https://www.pewsocialtrends.org/2020/06/12/amid-protests-majorities-across-racial-and-ethnic-groups-express-support-for-the-black-lives-matter-movement [https://perma.cc/MT8Q-ZBYV].

[17].   Throughout the summer of 2020—amid the deadliest international pandemic in over a century, the largest anti–police brutality protests since the civil rights movement of the 1960s, high-profile convictions of accused Hollywood sexual abusers, and a failing President on the cusp of an emotional breakdown or temper tantrum—a cute black yard sign began popping up in the front yard of many liberal suburban homes across the country.  In an array of bright colors spanning the rainbow the sign states: “[I]n this house we believe Black Lives Matter, women’s rights are human rights, no human is illegal, science is real, love is love, kindness is everything.”  American liberals took a clear stance against the Trumpian fever of hate, alternative facts, Muslim bans, border walls, and an attitude of sheer meanness.  See Chris Taylor, How One Woman’s Yard Sign Became a Rallying Cry for Allies, Mashable (June 16, 2020) https://mashable.com/article/in-this-house-we-believe-black-lives-matter-kindness-is-everything-sign [https://perma.cc/KG6H-WZ8N].  Black Lives Matter, in particular, is both a cultural and a constitutional issue.  The Equal Protection Clause of the Fourteenth Amendment ensured that the laws of the United States—including assurance that life or liberty would not be taken without due process of law—applies equally to all citizens regardless of race.

[18].   The Equal Protection Clause has been interpreted to apply to people of different racial groups as well as different genders.  In addition, the liberty provision of the Fifth Amendment has been interpreted to protect certain substantive privacy rights such as the choice of whom to marry and how to raise a family.  For example, the court has determined that the due process clause includes the right to marry a person of one’s choosing, Loving v. Virginia, 388 U.S. 1 (1967), Obergefell v. Hodges, 576 U.S. 644 (2015), the right of parents to direct their children’s upbringing, Meyer v. Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.S. 510 (1925), the right to marital privacy, Griswold v. Connecticut, 381 U.S. 479 (1965), the right to contraception generally, Eisenstadt v. Baird, 405 U.S. 438 (1972), and the right to an abortion, Roe v. Wade, 410 U.S. 113 (1973).

[19].   Anti-immigration laws have been challenged on constitutional grounds including the First Amendment (specifically with former President Trump’s so-called Muslim ban) and the Fourteenth Amendment, which ensures equal protection of the law regardless of race or religion.  See Ilya Somin, Immigration Law Defies the American Constitution, Atlantic (Oct. 3, 2019), https://www.theatlantic.com/ideas/archive/2019/10/us-immigration-laws-unconstitutional-double-standards/599140 [https://perma.cc/XL22-TZG3].

[20].   The government’s failure to act on climate change has been challenged on constitutional grounds, in the popular kids’ climate case, Juliana v. United States, 217 F. Supp. 3d 1224 (2016), where young people asserted a substantive due process right to a livable environment.  See Michael C. Blumm & Mary Christina Wood, “No Ordinary Lawsuit”: Climate Change, Due Process, and the Public Trust Doctrine, 67 Am. U. L. Rev. 1 (2017).

[21].   The right to marry a person of one’s choosing, including someone of the same sex, has been litigated and decided on constitutional grounds, including both the Equal Protection and Due Process Clauses. Obergefell v. Hodges, 576 U.S. 644 (2015).

[22].   Gang statutes are based on racialized myths about gangs and violence that are not supported by statistics and are often used to introduce otherwise inadmissible evidence at criminal trials.  See Fareed Nassor Hayat, Preserving Due Process: Applying Monell Bifurcation to State Gang Cases, 88 U. Cincinnati L. Rev. 129, 136–37, 141–50 (2019).

[23].   459 U.S. 359 (1983).

[24].   284 U.S. 299 (1932).

[25].   KA was a co-defendant in a forty-three-person gang indictment in Baltimore city.  The author represented one co-defendant, KJ, as trial and appellant counsel.  Greenmount has a 37.7 percent poverty rate compared to the overall 15.2 percent poverty rate in Baltimore City, and a homicide rate of almost double the overall city at 39.9 homicides per 10,000 residents, compared to 20.9 homicides per 10,000 residents in Baltimore City.  Further, the Greenmount area has a life expectancy of 65.9 years, compared to a life expectancy of 71.8 years in Baltimore City overall.  Alisa Ames, Mark Evans, Laura Fox, Adam J. Milam, Ryan J. Petteway & Regina Rutledge, 2011 Neighborhood Health Profile: Greenmount East (2011), https://health.baltimorecity.gov/sites/default/files/24%20Greenmount.pdf [https://perma.cc/XAS3-7G7D].

[26].   Md. Code Ann., Crim. Law § 5-601 (West 2017) (possessing or administering controlled dangerous substance).  Md. Code Ann., Crim. Law § 5-101 (West 2019) states that “possess” means “to exercise actual or constructive dominion or control over a thing by one or more persons.”

[27]      See Maryland v. KA, No. 1B02195901, Case Record (Dist. Ct. Balt. City 2012).  (on file with author).

[28].   Nolle prosequi is a Latin phrase meaning “will no further prosecute.” Nolle prosequi, Black’s Law Dictionary (2d ed. online) https://thelawdictionary.org/nolle-prosequi/ [https://perma.cc/NXX2-CKR6].  It amounts to a dismissal without prejudice.

[29].   The Black Guerilla Family (BGF) originally began as a political organization that “grew out of increasing inmate interest and concern about prison conditions in California and across the country and with the patterns of brutal repression and abuse on the inside.”  Azadeh Zohrabi, Resistance and Repression: The Black Guerrilla Family in Context, 9 Hastings Race & Poverty L.J. 167, 178 (2012).  To this date, notwithstanding criminal gang activity, there exists an emphasis in BGF to fight against racial injustice.

[30].   See State v. KA, No. 113310041, Case Record (Cir. Ct. Balt. City 2013) (on file with author).

[31].   Id.

[32]      Id.

[33].     KA v. State, No. 1520, 2017 WL 1788138, at *1, *1 (Md. Ct. Spec. App. May 5, 2017).

[34].   See Fareed Nassor Hayat, Two Bites at the Apple: Require Double Jeopardy in Gang Cases, 73 Rutgers U. L. Rev. (forthcoming 2021).

[35].   See State v. KA, No. 113310041.

[36].     Md. Code, Crim. Law § 9-804. Participation in criminal gang prohibited.

[37].     Garrett v. United States, 471 U.S. 789 (1985).

[38].   West v. State, 451 A.2d *1228, *1231 (1982) (articulating the “four distinct subspecies” of double jeopardy).

[39].     “A plea by a criminal in bar to an indictment that he has been formerly convicted of the same identical crime.”  Autrefois convict, Black’s Law Dictionary (2d ed. online) https://thelawdictionary.org/autrefois-convict/ [https://perma.cc/N6HF-EJB8].

[40].     “The name of a plea in bar to a criminal action, stating that the defendant has been once already indicted and tried for the same alleged offense and has been acquitted.”  Autrefois acquit, Black’s Law Dictionary (2d ed. online) https://thelawdictionary.org/autrefois-acquit/ [https://perma.cc/27VM-QUQ2].

[41].   The terms cumulative sentences and consecutive sentences may be used interchangeably and are distinct from concurrent sentences (which are served simultaneously).

[42].   United States v. Perez, 22 U.S. 579, 579–80 (1824) (holding that a mistrial based on manifest necessity will not bar further prosecution for double jeopardy purposes).

[43].   Ashe v. Swenson, 397 U.S. 436 (1970).

[44].    284 U.S. 299, 304 (1932) (holding that “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”).

[45].    432 U.S. 161 (1977).

[46].   Id. at 167–68 (“Joyriding is the lesser included offense [of auto theft] . . . [t]he prosecutor who has established auto theft necessarily has established joyriding as well.”).

[47].     Id. at 162–63.

[48].     Id. at 167-68.  

[49].   Garrett v. United States, 471 U.S. 773, 789 (1985).

[50].   21 U.S.C § 848 (Continuing Criminal Enterprise).

[51].   Garrett, 471 U.S. at 778 (“Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature . . . intended that each violation be a separate offense.”); id. at 786 (“Having determined that Congress intended CCE to be a separate offense and it intended to permit prosecution for both the predicate offenses and the CCE offense, we must now determine whether prosecution for a CCE offense after an earlier prosecution for a predicate offense is constitutional under the Double Jeopardy Clause of the Fifth Amendment.”); id. at 793 (”Having concluded that Congress intended CCE to be a separate offense and that it does not violate the Double Jeopardy Clause under the facts of this case to prosecute the CCE offense after a prior conviction . . . the only remaining issue is whether the Double Jeopardy Clause bars cumulative punishments.”).

[52].   Id. at 778.

[53].   Sperling v. United States, 692 F.2d 223, *226 (2d Cir. 1982) (“The law requires . . . that there be evidence that the defendant committed three substantive offenses . . . to provide the predicate for a § 848 conviction.”).

[54].   Hayat, supra note 22, at 793–94.

[55].   Id.

[56].     See Ansley, supra note 6.

[57].   The Constitution itself is deliberately colorblind, in the sense that the word slave or any mention of race does not appear in the text.  See Theodore R. Johnson, How Conservatives Turned the ‘Color-Blind Constitution’ Against Racial Progress, Atlantic (Nov. 19, 2019), https://www.theatlantic.com/ideas/archive/2019/11/colorblind-constitution/602221/ [https://perma.cc/BQM8-9LMF].  Yet the Constitution entrenched a system of slavery and genocidal colonialism.  The famous so-called three-fifths compromise used the term “other persons” to refer to Black slaves.  See Britannica, The Editors of Encyclopaedia Three-Fifths Compromise Encyclopedia Britannica (Jun. 26, 2020), https://www.britannica.com/topic/three-fifths-compromise [https://perma.cc/X9XX-PC8N].  This language and the three-fifths compromise were all part of the Framers’ attempt to unify the states without interfering with rights of white enslavers and the economic system upon which they accrued generational wealth and capital.  See Johnson, supra note 57 (“Though it didn’t mention race until the passage of the Fifteenth Amendment, nearly a century after its creation, there is no disputing that the Framers drafted the three-fifths compromise as a means to delineate enslaved black Americans and Native Americans from the rest of the citizenry.”).

[58].   Madison Alder & Jasmine Ye Han, Trump Nears Post-Nixon First: No Black Circuit Judges, Bloomberg Law (June 25, 2020, 10:44 AM), https://news.bloomberglaw.com/us-law-week/no-black-judges-among-trumps-appeals-court-confirmations [https://perma.cc/623S-BNFW](“Just one of Trump’s 53 confirmed appeals court judges is Hispanic and none are Black”).  Former President Trump’s  fifty-fourth confirmed appointment to the Court of Appeals, Thomas Kirsch of the 7th Circuit, was also a white man. Jacqueline Thomsen, In GOP Push on Trump Judges, Senate Confirms Amy Coney Barrett’s Replacement for 7th Circuit,  Nat’l L.J. (Dec. 15, 2020, 5:44 PM) https://www.law.com/nationallawjournal/2020/12/15/in-gop-push-on-trump-judges-senate-confirms-amy-coney-barretts-replacement-for-7th-circuit/?slreturn=20210416123453 [https://perma.cc/W42D-DKHV].

[59].   Peggy Cooper Davis, Loving v. Virginia and White Supremacy, 92 N.Y.U. L. Rev. Online 48, 48 (2017).

[60].   Id. at 54.

[61].   Ramos v. Louisiana, 140 S. Ct. 1390, 1393 (2020).  The process by which states like Louisiana adopted their non-unanimous jury verdict statutes was patently white supremacist.  In his majority opinion, Justice Gorsuch explained how after Strauder v. West Virginia, 100 U.S. 303 (1880), state courts were begrudgingly forced to allow Black and Brown men to serve on juries because of the Fourteenth Amendment’s Equal Protection Clause. Id.  To circumvent this, states adopted facially neutral non-unanimous conviction statutes “to ensure that African American jury service would be meaningless.”  Id.  (citing State v. Maxie, No. 13-CR-72522 at 57 (La. 11th Jud. Dist., Oct. 11, 2018)); see also Thomas Ward Frampton, The Jim Crow Jury, 71 Vand. L. Rev. 1593, 1597–98 (2018).

[62].   Ion Meyn, Univ. of Wis. Legal Stud. Rsch. Paper No. 1600, Constructing Separate and Unequal Courtrooms, 63 Ariz. L. Rev 1 passim (2021) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3657250 [https://perma.cc/7XY3-J4Y2].

[63].   Id. at 8.

[64].   Id. at 3.

[65].   Id. at 20.

[66].   Id. at 21–22.

[67].   Id. at 22–23.  Meyn further notes that this transformation was posed in race neutral terms, despite the clear racial motivations and racially disparate impact.  Id. at 17, 23.

[68].   For further discussion of the expansion of organized crime statutes, see Susan W. Brenner, RICO, CCE, and Other Complex Crimes; The Transformation of American Criminal Law, 2 Wm. & Mary Bill Rts. J. 239, 242, 245 (1993) (noting that historically, Anglo-American law assumed that that an act constituted the commission of only one crime, yet “[c]ompound liability became a major influence on federal law in 1970, with the adoption of RICO and CCE.”).

[69].   Jordan Blair Woods, Systemic Racial Bias and RICO’s Application to Criminal Street and Prison Gangs, 17 Mich. J. Race & L. 303, 307 (2012).

[70].   Id.

[71].   Id. at 307 (citation omitted).

[72].   Fareed Nassor Hayat, Preserving Due Process: Applying Monell Bifurcation to State Gang Cases, 88 U. Cin. L. Rev. 129, 138 (2019).

[73].   Id. at 136.

[74].   Keegan Stephan, Conspiracy: Contemporary Gang Policing and Prosecutions, 40 Cardozo L. Rev. 991, 993–95 (2018)  (emphasis added) (citations omitted).

[75].   K. Babe Howell, Gang Policing: The Post Stop-and-Frisk Justification for Profile-Based Policing, 5 U. Denver Crim. L. Rev. 1, 13 (2015) (“No increase in crime accounted for the massive increase of resources into [NYPD’s gang policing operations].”).

[76].   Id. at 2.

[77].     Vicki Godal, Malibu Gang Investigation to Air on Major Local Television Station, Malibu Times (Feb. 11, 2004) http://www.malibutimes.com/news/article_afc1acd6-8c2f-5a36-8bbd-d7891bcea233.html [https://perma.cc/B28X-P8GA].

[78].   Brian W. Ludeke, Malibu Locals Only: “Boys Will Be Boys,” or Dangerous Street Gang?: Why the Criminal Justice System’s Failure to Properly Identify Suburban Gangs Hurts Efforts to Fight Gangs, 43 Cal. W. L. Rev. 309 , 343, 312 n.8.

[79].   Cal. Penal Code Ann. § 186.22(f) (West 2018).

[80].   See Indictment, State v. KA, No. 113310041.

[81].   Lam v. State, 17 S.W.3d 381 (2000).

[82].   Tex. Penal Code Ann. § 71.02(a)(2) (West 2021) is the Texas gang statute.

[83].   Lam, 17 S.W.3d at *383.

[84].   Md. Code Ann., Crim. Law § 5-601(West 2021) (Possessing or administering controlled dangerous substance).  Md. Code Ann., Crim. Law § 5-101 (West 2021) states that “possess” means “to exercise actual or constructive dominion or control over a thing by one or more persons.”  Md. Code Ann., Crim. Law § 5-403 (West 2021) defines Schedule II and lists specific substances that qualify as Schedule II(e).

[85].   Md. Code Ann., Crim. Law § 5-602 (West 2021) states that a person may not “distribute or dispense a controlled substance . . . or possess a controlled substance in sufficient quantity reasonably to indicate under all circumstances an intent to distribute or dispense a controlled dangerous substance.”

[86].   The Supreme Court held in In re Winship that the Due Process Clause requires proof beyond a reasonable doubt of every fact needed to establish the guilt of a defendant, both adults and juveniles.  In re Winship, 397 U.S. 358, 364 (1970).  For a gang statute, where a predicate act is an element of the statute, this means that the jury must find proof beyond a reasonable doubt that the defendant committed an underlying crime in furtherance of the gang.  This concept was further clarified in Apprendi v. New Jersey, in which the Supreme Court held that a criminal defendant is entitled to a “‘jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.”  Apprendi v. New Jersey, 530 U.S. 466, 477 (2000).

[87].   Missouri v. Hunter, 459 U.S. 359, 367–68.

[88].   In his dissent in Grady v. Corbin, Justice Scalia noted, “We have departed from Blockburger’s exclusive focus on the statutory elements of crimes in only two situations.  One occurs where a statutory offense expressly incorporates another statutory offense without specifying the latter’s elements.”  Grady v. Corbin, 495 U.S. 508, 528 (1990) (Scalia, J., dissenting).  Under this analysis, a single predicate act under a gang statute would result in a double jeopardy violation even if the proof of the gang statute violation could conceivably have been accomplished by proof of a different predicate act.

[89].   Burks v. United States, 437 U.S. 1, 17 (1978) (holding that Double Jeopardy Clause prevents a second trial once the reviewing court has found the evidence insufficient, to prevent the government from getting a “second bite at the apple.”).

[90].   The tough on crime era is generally thought of as spanning the 1970s and 1980s.  “While crime control had clearly emerged as a political issue during the 1970s, during the 1980s the national political discourse focused increasingly on a perceived need to ‘get tough’ on crime.”  Judith Greene, Getting Tough on Crime: The History and Political Context of Sentencing Reform Developments Leading to the Passage of the 1994 Crime Act, in Sentencing & Society: International Perspectives 11 (Cyrus Tata & Neil Hutton eds, 1st ed. 2002).

[91].   George C. Thomas III, Multiple Punishments for the Same Offense: The Analysis After Missouri v. Hunter or Don Quixote, the Sargasso Sea, and the Gordian Knot, 62 Wash. U. L.Q.  79, 93 (1984).

[92].   445 U.S. 684 (1980).

[93].   450 U.S. 333 (1981).

[94].   459 U.S. 359 (1983).

[95].   86 U.S. 163 (1873).  In Ex Parte Lange, the Court found that Petitioner had been unconstitutionally subject to multiple punishments, and that the Constitution protects against multiple punishments for a single crime as well as multiple trials.  Id. at 176.

[96].   Whalen, 445 U.S. at 702–03.

[97].   Id. at 685.

[98].   Id. at 693.

[99].   Id. at 693–94.

[100]Id. at 694.

[101]Id. at 696 (White, J., concurring) (“But as I see it, the question is one of statutory construction and does not implicate the Double Jeopardy Clause.”); Id. at 697 (Blackmun, J., concurring) (”The only function the Double Jeopardy Clause serves in cases challenging multiple punishments is to prevent the prosecutor from bringing more charges, and the sentencing court from imposing greater punishments, than the Legislative Branch intended.”) (emphasis added); Id. at 705 (Rehnquist, J., dissenting) (“Unlike the Court, I believe that the Double Jeopardy Clause should play no role whatsoever in deciding whether cumulative punishments may be imposed under different statutes at a single criminal proceeding.”).

[102]Id. at 701 (Rehnquist, J., dissenting) (“[T]his Court has not always been so forthright in recognizing that Congress could, if it so desired, authorize cumulative punishments for violation of two separate statutes, whether or not those statutes defined ‘separate offenses’ in some abstract sense.”).

[103].  Albernaz v. United States., 450 U.S. 333 (1981).

[104]Id. at 334–35.

[105]Id. at 334.

[106]Id. at 335.

[107]Id. at 337.

[108]See discussion supra notes 100–02 & accompanying text.  The majority in Whalen applied the Blockburger test.  Whalen v. United States, 445 U.S. 684, 693–94 (1980).

[109]Missouri v. Hunter, 459 U.S. 359, 370–71 (1983) (Marshall, J., dissenting).

[110].  603 S.W.2d 592 (1980).

[111].  Thomas, supra note 91, at 100.

[112]Sours, 603 S.W.2d at 606 (emphasis added).

[113]See John F. Stinneford, Dividing Crime, Multiplying Punishments, 48 U.C. Davis L. Rev. 1955 (2015).  Stinneford himself is a conservative, federalist scholar, but his argument still comports with the analysis provided in this Article.  Also note that Stinneford never mentions race or the underlying motivation of the Supreme Court in abrogating its duty when enforcing criminal statutes on Black people.

[114]Id. at 1982.

[115]Id. at 1988, 1988–94.

[116].    Id. at 2011.

[117]Id. at 1993–94.

[118].  The Fifth Amendment of the United States Constitution reads, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.”  U.S. Const. amend. V.  Justice Scalia has stated, “Relying on text alone, therefore, one would conclude that the Double Jeopardy Clause meant what Blockburger said.” Grady v. Corbin, 495 U.S. 508, 530 (1990) (Scalia, J., dissenting).

[119]Missouri v. Hunter, 459 U.S. 359, 368 (1983).

[120].  5 U.S. (1 Cranch) 137 (1803).

[121]Id. at 178.

[122]Id. at 177–78.

[123].  554 U.S. 570 (2008).

[124]Id. at 636.

[125]Id. (“[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.  These include the absolute prohibition of handguns held and used for self-defense in the home.”).

[126].  Loving v. Virginia, 388 U.S. 1 (1967).

[127].  Loving v. Virginia, 388 U.S. 1 (1967).

[128]Id. at 8.

[129].  Though it still serves as some check on the legislature, scholars have argued that the Eighth Amendment has also been significantly weakened by the Supreme Court.  See Stinneford, supra note 113, at 165–66 (“[The Supreme Court] no longer defines ‘excessive’ at all.  Rather, it has held that legislatures are free to choose their own justification for punishment . . . .  In a small class of cases involving life sentences for juvenile offenders or [sic] the death penalty, the Court uses a strong presumption of unconstitutionality to invalidate punishments for an entire class of offense or offender.”).]

[130].  217 U.S. 349 (1910).

[131]Id. at 358.

[132]Id. at 378 (emphasis added).  If legislative intent controlled exclusively, the Eighth Amendment would be meaningless except to prevent fines greater than what Congress intended, allowing the legislature to impose fines of any amount, notwithstanding the circumstance or legislative basis See United States v. Bajakajian, 524 U.S. 321 (1998).

[133]Bajakajian, 524 U.S. at 334. (“The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality . . . .”).

[134].    See Blockburger v. United States, 284 U.S. 299 (1932).

[135].  Stinneford, supra note 113, at 2011.

[136].    Ex Parte Nielsen, 131 U.S. 176, 190–91 (1889) (“The conviction of the petitioner of the crime of unlawful cohabitation was a bar to his subsequent prosecution for the crime of adultery; that the court was without authority to give judgment and sentence in the latter case, and should have vacated and set aside the same when the petitioner applied for a habeas corpus; and that the writ should have been granted, and the petitioner discharged.”)

[137].  Id.; see also Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012) (finding that the so-called war on drugs did not respond to genuine concerns about drug proliferation, but rather was intentionally invented by politicians as a means to preserve a racial caste system through the mass incarceration and subsequent disenfranchisement of Black people).

[138].   Woods, supra note 69, at 336 (“[R]ecent partnerships between immigration and anti-gang law enforcement units have resulted in RICO gang crackdowns that target racial minority groups exclusively.  These practices not only shield nonimmigrant White populations from suspicion of gang involvement, they also jeopardize the constitutional rights of racial minorities.”). See also Hayat, supra note 34 (noting that gang statutes that require only one predicate act plainly do not meet the criteria for the same exception to the Double Jeopardy Clause of the Fifth Amendment because as soon as the first predicate act is complete, a defendant has also violated the gang statute simultaneously).

[139].  James Forman, Jr., Juries and Race in the Nineteenth Century, 113 Yale L.J. 895, 910 n.83 (2004) (“In many states, North and South, an African American, slave or free, could not serve as a witness against a white person”).  “We know of no State in the union, except, perhaps New York, and Pennsylvania, in which negroes are allowed to testify in Courts.”  Wisconsin Express (Aug. 1, 1840). See also Meyn, supra note 52.

[140]U.S. Const. amend. XIII.

Vol-69-Hyatt

About the Author

Fareed Nassor Hayat is a third year Associate Professor of Law at City University of New York (CUNY) School of Law.  He teaches criminal law, criminal procedure, trial advocacy and lawyering.  The author would like to thank (1) the participants of the John Mercer Langston and Lutie Lytle Writing Workshop, (2) the Law Faculty at City University of New York School of Law (CUNY) who read, commented, and supported the development of this article, and (3) his research assistants Antonia Bruno and Connor Lie-Span for their dedication and tireless work on the Essay.

By LRIRE