Barrett v. United States

Justin Barrett was convicted and sentenced under two federal laws for a single act: using a firearm during a robbery that resulted in a death. He argues that this amounts to being punished twice for the same offense, which is forbidden by the Fifth Amendment's Double Jeopardy Clause. The core of his argument is that using a gun in a violent crime is a 'lesser-included' part of committing murder with that same gun; you cannot do the latter without also doing the former. Under this view, they are legally the 'same' offense, and the default rule is that a person can only be punished once for the more serious crime.

The dispute centers on whether Congress clearly stated its intent to override this default rule and punish for both offenses. A court-appointed attorney, arguing against Barrett, points to language in the lesser gun-use statute that requires its sentence to be served 'consecutively' to any other. This, the attorney claims, is the unmistakable signal from Congress authorizing stacked punishments. During arguments, Justice Brett Kavanaugh seemed to agree, telling Barrett's lawyer, 'I don't know how that could be clearer.'

Barrett and the U.S. government, who are in rare agreement, counter that this puts the cart before the horse. They argue the Double Jeopardy Clause prevents the second conviction from happening in the first place. If the second conviction is unconstitutional, a court can never get to the stage of applying sentencing rules. The Supreme Court must decide if a procedural rule about how to serve a sentence is strong enough to authorize what might otherwise be an unconstitutional second punishment for a single criminal act.

This seemingly paradoxical outcome was a central concern during the Supreme Court argument in Barrett v. United States. Justice Samuel Alito posed a hypothetical about a 'very well versed' criminal who knows that the law for simply using a gun in a robbery has a stiff mandatory minimum sentence, while the more serious law for a murder committed with that gun has a different sentencing scheme that could, in some cases, lead to less prison time. Alito worried that if the defendant's argument won, it would create a 'perverse incentive,' asking, 'Does that make any sense?' for a criminal to decide, 'Let me go ahead and commit the greater offense' to get a lighter sentence.

The defendant's lawyers argue this 'absurd result' is not a reason to ignore the Constitution's Double Jeopardy Clause. They contend that Congress designed two separate punishment schemes on purpose. For the lesser gun crime, it used rigid mandatory minimums. For the far graver crime of murder, it gave judges the traditional, flexible, and more powerful sentencing tools used for all federal murders, including life imprisonment or the death penalty. Congress, they argue, trusted judges to impose a fittingly severe sentence for a killing, rather than relying on the simple formula of the lesser offense.

Justice Sonia Sotomayor offered a historical counterpoint to Justice Alito's concern. She noted that this strange sentencing anomaly did not exist when Congress originally wrote the laws; it only emerged as a possibility after later amendments. This suggests the Court should interpret Congress's original intent rather than contorting the law to avoid an accidental side effect created years later. The debate forces the justices to weigh whether to avoid an illogical outcome at the cost of bending a constitutional protection.

In an unusual alignment, the Department of Justice sided with the defendant, Justin Barrett, arguing that he was unconstitutionally punished twice for the same criminal act. Both the government and Barrett agree that the Fifth Amendment's protection against double jeopardy prevents separate sentences for using a gun in a crime and for a murder committed with that same gun, because the former is a built-in component of the latter. Because of this agreement, the Supreme Court had to appoint an outside lawyer to argue the opposing side to ensure a robust debate.

The government's position, presented by the Solicitor General, is based on a principle of legal interpretation: unless Congress speaks with unmistakable clarity, courts should assume it did not intend to punish a person twice for what is essentially one crime. The government contends that while Congress knows how to authorize stacked punishments using explicit language like 'in addition to,' it failed to do so in the murder statute at issue. Therefore, only one punishment is constitutional.

This change of heart drew sharp questioning from the bench. Justice Brett Kavanaugh pointedly reminded the government's lawyer that in a previous, similar case, the government had argued the exact opposite position. 'So what happened then?' he demanded. This skepticism highlighted the Court's frustration with the government's shifting legal interpretations and signaled that the justices do not feel bound by the government's new position. The exchange underscores that the Court will decide the case based on its own reading of the law, not on the temporary agreement of the parties before it.

This subtle but critical distinction was a key fault line in a Supreme Court case about whether a person could be sentenced for both using a gun during a robbery and for a murder resulting from that gun use. The defendant's lawyer, Frederick Larsen, forcefully argued that the Fifth Amendment's Double Jeopardy Clause is a barrier to the second conviction itself. From this perspective, if a second conviction is unconstitutional, a court never even reaches the question of how to sentence it.

The opposing argument, which attracted Justice Brett Kavanaugh, focused on a provision in the lesser gun-use law stating its sentence must be served 'consecutively' and cannot run 'concurrently with any other term of imprisonment.' This camp sees that language as a clear command from Congress to impose a second punishment, which implicitly makes the second conviction permissible. It treats the double jeopardy protection primarily as a shield against multiple punishments, a shield Congress can lower if it speaks clearly.

Justice Ketanji Brown Jackson pushed back on this view, drawing a sharp line between the two stages. She suggested that the rule about how sentences are served only applies after a court has independently decided that someone can be legally convicted of two separate crimes in the first place. This reframes the debate as a sequencing problem: first, you determine how many convictions are constitutionally allowed; only then do you consult the rules about sentencing. The Court's decision will likely clarify whether double jeopardy is fundamentally a rule about conviction or a rule about punishment.

This principle, known as a 'clear statement rule,' serves as a safeguard rooted in the Constitution's protection against double jeopardy. It reflects a judicial presumption that a legislature does not intend to impose multiple punishments for a single criminal event unless it makes that intention explicit. This rule, sometimes called the 'rule of lenity,' forces lawmakers to be precise when writing criminal statutes and resolves any ambiguity in favor of the defendant. In a case involving federal gun crimes, both the defendant and the U.S. government agreed that this framework applied.

However, during oral arguments, Justice Neil Gorsuch questioned the very foundation of this long-standing agreement. He stepped back from the specific details of the gun laws and asked the fundamental question, 'Where does that presumption come from?' In doing so, he challenged the premise that courts should be looking for a 'clear statement' from Congress at all, suggesting the entire judicial framework for analyzing these cases might be worth re-examining.

Justice Gorsuch's query signals that he might be interested in a much broader ruling that could reshape double jeopardy law. Rather than simply deciding whether the statutory language in this one case was clear enough, the Court could potentially alter the fundamental ground rules for how all federal criminal laws are interpreted in the future. This could shift the balance of power between Congress, which writes the laws, and the courts, which interpret them, with significant consequences for thousands of criminal cases.