Contemplating the Successive Prosecution Phenomenon in the Federal System

Constitutional scholars have long debated the relative merits of a conduct-based compulsory joinder rule. The dialogue has centered on the meaning of the “same offence” language of the Double Jeopardy Clause, concentrating specifically on whether it includes the factual circumstances giving rise to criminal liability or applies only to the statutory offenses charged. However, the Supreme Court, in United States v. Dixon, abandoned as “unworkable” a limited conduct-based approach it had fashioned just three years before in Grady v. Corbin. This Article does not assess the frequency with which federal authorities prosecute joinable offenses separately. While such information ultimately is necessary to determine the absolute dollar costs of repeat prosecution, this Article concentrates on the opportunities to abuse power that the current approach leaves open to federal prosecutors. In addition, this Article does not precisely define the “transaction rule.” The purpose of this Article is not to offer yet another definition of the criminal transaction but to explore the implications of imposing any compulsory joinder requirement on the federal system. Thus, the “transaction rule” discussed herein generically denotes a factually-driven joinder requirement that might range in scope from the conduct formula embraced in Grady v. Corbin to a sweeping mandate that prosecutors include all joinable offenses “which substantially overlap” in a single indictment. This Article revisits the “transaction” rule debate in the context of a hypothetical statutory joinder requirement for the federal system. Section II considers the sources of repeat prosecution in the federal arena, the impact of the Federal Sentencing Guidelines on prosecutorial charging behavior, and the costs traditionally attributed to successive prosecution. Section III examines the arguments in favor of and against a statutorily-imposed compulsory joinder approach, questioning whether either the definitional uncertainties of a transaction rule or the political benefits of the current approach are worth the individual and systemic costs inherent in an unchecked reprosecution power. Section IV offers preliminary observations on issues that must be resolved if compulsory joinder of any variety is to succeed in the federal environment