Losing the Polestar of Legislative Intent in Double Jeopardy Multiple Punishment: Adopting a Modification to Blockburger’s Abstract Elements Test

Abstract

As the United States Supreme Court continues to apply Blockburger ambiguously in the context of vague statutes to determine whether two offenses are the “same offense” under the Fifth Amendment, a rift in multiple punishment jurisprudence is developing amongst state supreme and federal circuit courts as to whether Blockburger has been modified. The modified Blockburger approach takes the position that Blockburger should not be applied so strictly in the context of vague statutes, and that resort must be had to the prosecution’s legal theory of the case, which includes facts or evidence as alleged, to determine whether one offense requires proof of evidence the other does not. When courts realize that the modification is an exception to Blockburger and not a replacement, it is clear that the modification is not a deviation from federal law, but a solution to it that is implicit in U.S. Supreme Court jurisprudence. More importantly, the modified approach puts the analysis back on its proper track of determining legislative intent, rather than turning on mere accidents of words. The states should follow New Mexico’s adoption of the modification as a shining example of how to interpret the federal jurisprudence, and federal courts should expressly recognize that their jurisprudence does lead to the conclusion that the abstract elements test of Blockburger, without using the legal theory of the prosecution for vague statutes, is not logically or practically sound. This article clarifies the debate surrounding the scope of Blockburger and argues that the modification fits comfortably with Blockburger and the principles of the Fifth Amendment.