FIFTH AMENDMENT The Fifth Amendment's Due Process Clause requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.
The Fifth Amendment to the U.S. Constitution provides, "No person shall * be subject for the same offense to be twice put in jeopardy of life or limb." This provision, known as the Double Jeopardy Clause, prohibits state and federal governments from prosecuting individuals for the same crime on more than one occasion or imposing more than one punishment for a single offense. Each of the 50 states offers similar protection through its own constitution, statutes, and Common Law. A second prosecution for the same offense after acquittal or conviction or multiple punishments for the same offense. The evil sought to be avoided by prohibiting double jeopardy is double trial and double conviction. POLICY CONSIDERATIONS Five policy considerations underpin the double jeopardy doctrine: (1) preventing the government from employing its superior resources to wear down and erroneously convict innocent persons; (2) protecting individuals from the financial, emotional, and social consequences of successive prosecutions; (3) preserving the finality and integrity of criminal proceedings, which would be compromised were the state allowed to arbitrarily ignore unsatisfactory outcomes; (4) restricting prosecutorial discretion over the charging process; and (5) eliminating judicial discretion to impose cumulative punishments that the legislature has not authorized. The Supreme Court of The US (SCOTUS) The Supreme Court of The US (SCOTUS) has established that the right against Double Jeopardy is not limited to capital crimes or Corporal Punishment, but that it extends to all felonies, misdemeanors, and juvenile-delinquency adjudications, regardless of the applicable punishments. In Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), the SCOTUS ruled that the federal Double Jeopardy Clause is applicable to state and federal prosecutions.
Courts have drawn the distinction between criminal proceedings on the one hand, and civil or administrative proceedings on the other, based on the different purposes served by each. Criminal proceedings are punitive in nature and serve two primary purposes: deterrence and retribution. Civil proceedings are more remedial; their fundamental purpose is to compensate injured persons for any losses incurred. Because civil and criminal remedies fulfill different objectives, a government may provide both for the same offense. The US Department of Justice (DOJ) The US Department of Justice (DOJ) has developed an internal restriction on pursuing a prosecution after state prosecution has failed. Federal prosecutors under this restriction may only pursue a second prosecution for compelling reasons, and the prosecutor must obtain prior approval from the assistant attorney general prior to bringing the prosecution. This restriction is called the "Petite policy," named after the SCOTUS* decision in Petite v. United States, 361 U.S. 529, 80 S. Ct. 45, 4 L. Ed. 2d 490 (1960), which involved the prosecution of an individual in two federal district courts for what amounted to the same offense. Although the Petite policy appears in the Department of Justice's manual, criminal defendants may not rely upon this restriction if a federal prosecutor fails to adhere to the department's guidelines. DOUBLE JEOPARDY EXAMPLE: BURGLARY Burglary is defined as unlawful or forcible entry or attempted entry of a residence. This crime usually, but not always, involves theft. The illegal entry may be by force, such as breaking a window or slashing a screen, or maybe without force by entering through an unlocked door or an open window. As long as the person entering has no legal right to be present in the structure a burglary has occurred. Furthermore, the structure need not be the house itself for a burglary to take place; illegal entry of a garage, shed, or any other structure on the premises also constitutes household burglary. If breaking and entering occur in a hotel or vacation residence, it is still classified as a burglary for the household whose member or members were staying there at the time the entry occurred.
There are four types of burglary:
Completed burglary - A form of burglary in which a person who has no legal right to be present in the structure successfully gains entry to a residence, by use of force, or without force.
Forcible entry - A form of completed burglary in which force is used to gain entry to a residence. Some examples include breaking a window or slashing a screen.
Unlawful entry without force - A form of completed burglary committed by someone having no legal right to be on the premises, even though no force is used.
Attempted forcible entry - A form of burglary in which force is used in an attempt to gain entry.
The FBI*s Uniform Crime Reporting (UCR) Program defines burglary as the unlawful entry of a structure to commit a felony or theft. To classify an offense as a burglary, the use of force to gain entry need not have occurred. The UCR Program has three sub-classifications for burglary: forcible entry, unlawful entry where no force is used, and attempted forcible entry. The UCR definition of *structure* includes an apartment, barn, house trailer or houseboat when used as a permanent dwelling, office, railroad car (but not automobile), stable, and vessel (i.e., ship).
In 2012, there were an estimated 2,103,787 burglaries, a decrease of 3.7 percent when compared with 2011 data.
The number of burglaries decreased 5.6 percent when compared with 2008 and was down 2.4 percent when compared with the 2003 estimate.
The estimated number of burglaries accounted for 23.4 percent of the estimated number of property crimes.
By subcategory, 59.7 percent of burglaries involved forcible entry, 33.9 percent were unlawful entries, and 6.3 percent were attempted forcible entry.
Victims of burglary offenses suffered an estimated $4.7 billion in property losses in 2012; overall the average dollar loss per burglary offense was $2,230.
Burglaries of residential properties accounted for 74.5 percent of all burglary offenses. SENTENCING IN BURGLARY CONVICTIONS Burglary statutes will generally contain several options for judges to consider when they create a sentence. Sometimes the statutes will list several distinct sentences (one year, two years or three years, for example) and sometimes they will contain a range of years and judges can pick any amount of time that falls within that range. Statutes could also contain alternative sentences, such as fines.
To select the actual sentence, judges will consider these statutory ranges in addition to any aggravating and mitigating factors that might be present in the case. Aggravating factors are those things surrounding the case that tend to make it a more serious matter, such as the presence of a particularly vulnerable victim or the defendant's leadership role in the crime.
Mitigating factors, on the other hand, influence judges to reduce the severity of the sentences they hand down. A defendant's lack of a criminal record and willingness to accept responsibility for the offense are both mitigating factors that will help the defendant argue for a lesser sentence.
California state laws establish two types of burglary: first-degree and second-degree. State law defines THE first-degree burglary as any burglary of an inhabited dwelling. During burglary prosecutions, an inhabited dwelling is any house, vessel, or other property designed for habitation and currently inhabited at the time of the burglary. "Currently inhabited" means that the property was used as a dwelling at the time of the burglary, even if nobody was actually occupying the property then. State law also includes properties abandoned due to a natural disaster or local emergency as currently-inhabited properties. Any burglary not qualifying as the first-degree burglary will proceed as a case of second-degree burglary such as commercial burglary of a business or store.
First Degree Burglary: Felony punishable by up to six years in county jail and/or a maximum 1,000 fine, probation, restitution to the victims.
Second Degree Burglary: Either a misdemeanor up to one year in county jail, and/or maximum fine, probation or felony (depending on the nature of the alleged offense) punishable by up to three years in county jail or state prison, a fine, or both, probation. Also called a *wobbler.* Restitution to the victims.
Burglary with Explosives: Felony, up to seven years in state prison, fine, probation or parole, restitution to the victims. CONCLUSION Deportation in addition to the criminal punishment meted to AMERICAN ALIENS is not too vague. It is very clear that such deportation is neither TOO VAGUE TO BE ENFORCED, NOR IS A CIVIL PENALTY TO REHABILITATE THE VICTIM. IT IS CLEARLY PROHIBITED DOUBLE JEOPARDY UNDER THE CONSTITUTION OF US.