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  • Person C was charged with crimes A and B.

  • Person C pled guilty to crime A, as part of a plea bargain with prosecution, in exchange for dropping charges on crime B.

  • Executive branch (state or federal, as appropriate) pardoned/commuted the sentence of person C for crime A.

Can prosecution decide to prosecute person C for crime B now, without it being thrown out as Double Jeopardy?

Why it's unclear to me: Wikipedia says Double jeopardy is a procedural defence that prevents an accused person from being tried again on the same (or similar) charges and on the same facts, following a valid acquittal or conviction, which seems to exclude the situation where the charge was pleaded out of - which is neither acquittal nor a conviction.

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  • If jurisdiction matters, federal US jurisdiction.
    – user0306
    Commented Jan 18, 2017 at 0:41
  • I'm not sure if it matters, but is A a lesser included offense of B?
    – Nate Eldredge
    Commented Jan 18, 2017 at 2:10
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    Also, this may not even be a double jeopardy issue - if the plea bargain meant anything at all, it should have made it impossible to prosecute C for crime B. If it wasn't binding in that way, why would C agree to it? Otherwise the prosecution could strike the deal and then prosecute for B anyway a week later. And if it was binding, then presumably it is still binding even after the executive clemency.
    – Nate Eldredge
    Commented Jan 18, 2017 at 2:13
  • @NateEldredge - let's assume not, otherwise I'm guessing the answer is a trivial "yes"
    – user0306
    Commented Jan 18, 2017 at 2:42

1 Answer 1

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The Fifth Amendment, in pertinent part, reads:

"nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;"

which suggests that Crime B is still fair game under double jeopardy. However, if B is a lesser included offense under Blockburger, i.e. A is Aggravated Robbery and B is Robbery, then a prosecution could be barred by Double Jeopardy.

Barring that, and jurisdiction specific law, the State isn't barred by the Double Jeopardy clause of the 5th (and 14th) amendment. That does not foreclose Person C from finding an ethical, equitable, statutory remedy or controlling case enforcing a plea bargain.

As far as I can tell, commutation is the equivalent of a conviction while a pardon is equivalent to an acquittal. I also imagine if the prosecution isn't barred and tried C for B, the Executive may just pardon/commute C again.

Edit to add: Under Santobello, it would appear C may have an additional remedy enforcing a plea bargain. Santobello didn't involve a case dismissed in a plea bargain, nor commutation or pardon. A court might find that commutation or pardon are essentially a breach of the agreement.

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    commutation is the equivalent of a conviction I would not express it that way; only a judge or jury can convict. Maybe you want to express it as "pardon removes the conviction while commutation makes the punishment of the conviction smaller" or something like that.
    – SJuan76
    Commented Jan 18, 2017 at 9:21
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    A court might find that commutation or pardon are essentially a breach of the agreement. That does not sound right. First, commutation/pardon is not part of the plea. Second, the convict is not breaking the agreement, so he should not be punished if the state reduces his sentence. If that were the case, then plea bargains are not longer enforceable (enter a plea bargain, the accused satisfies his part, make a minimal commutation -say, reduce time by 1 day- and prosecute again.
    – SJuan76
    Commented Jan 18, 2017 at 9:27
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    To put another example, if a convict serves less time because of good conduct, or because a change in the laws reduces the penalty for the charges he accepted, or any other reason, none of those constitute a breach of agreement and would not invalidate the plea bargain.
    – SJuan76
    Commented Jan 18, 2017 at 9:29
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    @Sjuan76: I should have said "commutation does not remove the conviction" or analogized it to early release.
    – Attractive Nuisance
    Commented Jan 18, 2017 at 14:27
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    Because the question was only asking about double jeopardy, I didn't do a deep dive into Westlaw to find cases to challenge the Santobello analysis. It could be courts decide to err on the side of the defendant, but the court hasn't had this very specific issue, a dismissed case in exchange for a plea where that plea is later commuted or pardoned, which is patently different from a reduced sentence on a charge later commuted. There's an interesting separation of powers issue in play here as well.
    – Attractive Nuisance
    Commented Jan 18, 2017 at 14:31

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