Part II will examine the
historical development and the Supreme Court's application of the so- called rule of lenity when adjudicating cases involving statutes with
unclear units of prosecution Part II will also examine the manner in which unclear draftsmanship has been treated in other areas of law and
will compare those areas of law with the rationale behind the rule of lenity. Finally, Part II will conclude by arguing that the rule of lenity creates a presumption opposing multiple prosecutions for the continuing violation of a statute, unless there is clear legislative intent to the contrary. Part M11 will examine the double jeopardy implications raised by unit of prosecution cases. After a review of the Double Jeopardy Clause of the Fifth Amendment, Part III will conclude that, save for one exception, the Double Jeopardy Clause should not be implicated in unit of prosecution cases. Part IV will examine the history of the Cruel and Unusual Punishment Clause of the Eighth Amendment, including its origin and historical application by the Supreme Court. It will also examine some recent contradictory Supreme Court cases involving the application of the Cruel and Unusual Punishment Clause. Part IV will conclude by arguing that the Cruel and Unusual Punishment Clause should be read to encompass a limited proportionality requirement in criminal punishment and, as a protection of last resort, should be exercised to invalidate punishment that is grossly excessive when compared to the sum total of culpable behavior exhibited by a criminal defendant. Part V will look at a few recent cases that have addressed the issue of individuating continuous acts into temporal units of prosecution. The model proposed in this Comment will then be applied to these cases in order to analyze the extent to which various courts are recognizing the judicial and constitutional issues implicated in these cases.
Temporal Units of Prosecution and Continuous Acts: Judicial and Constitutional Limitations,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol36/iss1/6