Supreme Court double jeopardy jurisprudence is, to put it mildly, contradictory and confusing. The Court has frequently and dramatically altered its definition of the "same offense" test, in part due to a disagreement regarding whether the clause should limit the legislative as well as executive branch. An issue the Court has yet to resolve is how to define "same offense" in the context of compound criminal statutes, such as RICO and CCE, that require completed predicate crimes. None of the "same offense" tests developed by the Court or commentators are helpful. Given the two all-or-nothing categories -- offenses are either the same or not the same, the Court will either ban all successive prosecutions of compound offenses and their predicates, even where such offenses could not possibly have been joined, or allow all successive prosecutions of compound offenses and their predicates, even where such offenses are intentionally separated to harass the defendant. Framer's intent is unhelpful in deciding between these two options, as the drafters of the clause could not have anticipated the numerous overlapping offenses now common in modern criminal law. Our solution, focusing on the values underlying the clause, suggests a third category of compound criminal offenses that are sometimes the same as their predicates and sometimes not. This new category, and its accompanying new functional "same offense" test, has become necessary to preserve double jeopardy interests in finality and protection against governmental overreaching, given the radically changed criminal law landscape. Our functional test considers the prosecutor's reasons for bringing successive prosecutions, drawing from the presumptions that arise in prosecutorial vindictiveness jurisprudence and the procedures used in Kastigar immunity hearings. The defendant receives the benefit of a presumption of a double jeopardy bar by establishing successive prosecutions for a compound offense and any other offenses which were or could have been charged as predicates. The prosecutor must then rebut the presumption by showing an acceptable reasons for the separation. A preliminary list of acceptable reasons include (1) that the additional elements giving rise to the second charge had not yet occurred; (2) the discovery of inculpatory evidence that no governmental actor had previously uncovered despite the exercise of due diligence; (3) the filing of the second charge at the time of the first prosecution would have endanger the physical safety of an informant or compromised an ongoing investigation; and (4) the inability to meet constitutional venue requirements. Unacceptable reasons, admitted to by many prosecutors in our informal survey, include (1) a desire to find a jury that will convict rather than acquit; (2) a desire for a second conviction and/or harsher sentence; (3) the inexperience of the prosecutor making the initial charging decision; and (4) the public's demand for additional charges.
Susan R. Klein, Successive Prosecutions and Compound Criminal Statutes: A Functional Test, 77 Texas Law Review 333 (1998) (with Katherine P. Chiarello).