Academic journal article International Journal of Punishment and Sentencing

Picking Up the Pieces of the Gordian Knot: Towards a Sensible Merger Methodology

Academic journal article International Journal of Punishment and Sentencing

Picking Up the Pieces of the Gordian Knot: Towards a Sensible Merger Methodology

Article excerpt

In an apparent attempt to demonstrate that "succinct" is an art form, Justice John Flaherty of the Pennsylvania Supreme Court summed up the relevant criminal wrongdoings of Steven Keith Anderson in this way: "On October 31, 1987 Anderson shot Norma DeBooth in the neck as she stood at the kitchen sink preparing dinner. She is now a quadriplegic." (2)

Struck as the reader may be with the pathos of this horrible circumstance, they will learn nothing more of about the whys and wherefores of its occurrence. The reader will not be told who Anderson was in relation to Ms. DeBooth, whether it was passion or greed or sheer malevolence over what she was cooking that motivated his pulling the trigger, or whether the future may bring her hope of recovery. Rather, all we will learn is that Anderson was convicted under the laws of Pennsylvania of both attempted murder and aggravated assault and, more importantly, that he was sentenced consecutively for each crime. (3) For the legacy of this tragic and fateful encounter is that in its brief retelling, the Pennsylvania Supreme Court set the legal stage for the announcement of Pennsylvania's seminal opinion on the law of merger.

Of all the things to talk about in Anderson's case, or anyone else's for that matter, why talk about merger? More to the point for those who have read this far and are morbidly fascinated about continuing, why is merger a topic worth the time it will take you to reach the conclusion? There are two very good reasons for this effort that students of law, particularly those who practice and adjudicate it, will appreciate. There is also one more I will save for the end that may help remind us of the deeper and nobler business we are about every day in the criminal courts of the nation.

The first reason is that once enough people who have the responsibility to address the jurisprudence of the Double Jeopardy Clause read Professor Anne Poulin's recent article, Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot, (4) the law regarding merger will change. While I will discuss more details of Professor Poulin's work later, suffice it to say here that it compels Double Jeopardy Clause analysis to henceforth proceed along a path solely concerned with successive prosecution situations.

Merger is left on an island, an issue of non-constitutional dimension, an issue where the "only question is whether the punishment exceeds that intended by the legislature." (5) Merger is about to be permanently uprooted from its perceived foundation in Double Jeopardy, and dealing with that displacement is an issue that must be addressed.

Second, merger analysis has been, to be charitable, a mess. In this context, I will use the law of Pennsylvania as an illustration of the severe problems courts have encountered in dealing with it, but the problem runs deep, in Pennsylvania and elsewhere.

Demonstrating an unusual gift for understatement, the Pennsylvania Supreme Court has characterized merger as "not an easy problem" that readily devolves into the kind of policy debate (rehabilitation versus incapacitation) that judges should rightly avoid. (6) A distinguished member of the Superior Court of Pennsylvania has observed that there have "not been many issues that have received from the courts more uneven treatment than claims that offenses have merged for the purposes of sentencing." (7) Merger approaches announced in one case are often repudiated not long after, (8) and garnering a majority approach on even one aspect of the doctrine is difficult. (9)

Merger is a doctrine in search of a methodology. For years, courts have recognized their inability to establish a coherent approach to the matter. Merger has little of a true identity in the law, and the law is not sure what to do with it. In short, it is a mess.

Looking for its historical origins will not help clean up the mess. The doctrine of merger is rooted in English common law (10) principles that provided that a misdemeanor would merge into a felony, if one act resulted in both a felony and a misdemeanor. …

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