Blockburger v United States Established “Same Elements” Double Jeopardy TestHistorical
In Blockburger v United States, 284 U.S. 299 (1932), the U.S. Supreme Court clarified when two offenses are the same for purposes of Fifth Amendment’s Double Jeopardy Clause. Under the “same elements” test, a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other.
Facts of Blockburger v United States
The defendant was charged with several violations of the Harrison Narcotics Act. All five counts involved the sale of morphine to the same purchaser. The jury returned a verdict against petitioner upon the second, third, and fifth counts only.The second count charged a sale on a specified day of ten grains of the drug not in or from the original stamped package; the third count charged a sale on the following day of eight grains of the drug not in or from the original stamped package; the fifth count charged the latter sale also as having been made not in pursuance of a written order of the purchaser as required by the statute. The court sentenced petitioner to five years’ imprisonment and a fine of $2,000 upon each count, the terms of imprisonment to run consecutively. The conviction was affirmed by the Second Circuit Court of Appeals.
In his appeal to the U.S. Supreme Court, the defendant raised two legal theories: 1. That the two sales charged in the second and third counts as having been made to the same person constitute a single, continuous offense; and 2. That the sale charged in the third count as having been made not from the original stamped package, and the same sale charged in the fifth count as having been made not in pursuance of a written order of the purchaser, constitute but one offense, for which only a single penalty lawfully may be imposed.
Court’s Decision in Blockburger v United States
The Court held that the two sales of morphine were separate and distinct offenses under § 1 of the Narcotics Act, although buyer and seller were the same in both cases and little time elapsed between the end of the one transaction and the beginning of the other. Justice George Sutherland wrote on behalf of the unanimous court.
According to the Court, Section 1 of the Narcotics Act, forbidding sale except in or from the original stamped package, and § 2, forbidding sale not in pursuance of a written order of the person to whom the drug is sold, create two distinct offenses. Accordingly, the defendant could beprosecuted separately under each of the sections.
The Court further held that the defendant had not been subjected to double jeopardy. As Justice Sutherland explained:
Each of the offenses created requires proof of a different element. The 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 an additional fact which the other does not.
The Court acknowledged that the resulting punishment may be harsh, but stated that it was up to Congress, not the courts, to address it. “The plain meaning of the provision is that each offense is subject to the penalty prescribed; and, if that be too harsh, the remedy must be afforded by act of Congress, not by judicial legislation under the guise of construction,” Justice Sutherland wrote. “Under the circumstances, so far as disclosed, it is true that the imposition of the full penalty of fine and imprisonment upon each count seems unduly severe; but there may have been other facts and circumstances before the trial court properly influencing the extent of the punishment.”
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Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.