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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.

user0306
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1 Answers1

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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.

Attractive Nuisance
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