NCJ Number
16759
Journal
University of Colorado Law Review Volume: 42 Dated: (1971) Pages: 455-466
Date Published
1971
Length
12 pages
Annotation
DUPLICATIVE STATUTES ARE TWO PENAL STATUTES, ONE HARSHER THAN THE OTHER, WHICH PROHIBIT THE SAME BEHAVIOR AND REQUIRE THE SAME ELEMENTS OF PROOF TO SUSTAIN A CONVICTION.
Abstract
WHETHER OR NOT, IN THIS SITUATION, A PROSECUTOR SHOULD BE FREE TO INVOKE EITHER STATUTE AGAINST A DEFENDANT HAS, HISTORICALLY, BEEN A SUBJECT OF DEBATE, SINCE THIS PRACTICE HAS BEEN QUESTIONED AS BEING IN VIOLATION OF THE FOURTEENTH AMENDMENT EQUAL PROTECTION CLAUSE. FOUR METHODS THE COURT HAS FORMULATED TO RESOLVE THIS QUESTION ARE DISCUSSED BRIEFLY. THE AUTHOR MAINTAINS THAT ALL OF THESE APPROACHES ARE IRRATIONAL AND/OR INCONSISTENT. AN ALTERNATIVE TWO-STEP ANALYSIS IS PROPOSED TO CONFRONT THE CONSTITUTIONAL PROBLEMS IN THIS AREA. THE FIRST STEP IS TO DETERMINE IF THE STATUTES ARE IN FACT DUPLICATIVE. IF THEY ARE, THE COURT SHOULD ASCERTAIN WHETHER ANY METHOD OF STATUTORY CONSTRUCTION WILL RESOLVE THE CONFLICT. IF NO SUCH STATUTORY CONSTRUCTION EXISTS, THE AUTHOR MAINTAINS THAT THE STATE WOULD BE FORCED TO CONCLUDE THAT EMPOWERING A PROSECUTING ATTORNEY TO UNILATERALLY CHOOSE ONE OF TWO OR MORE DUPLICATIVE STATUTES IS CONSTITUTIONALLY PROSCRIBED.