Counting Offenses

Is a criminal defendant who discharges a weapon five times in rapid succession guilty of one crime or several crimes? This question of how to divide charges has vexed legal philosophers and Supreme Court Justices. It is a question of profound importance, but one that legal scholarship has seldom addressed. The answer has an impact on each stage of a criminal justice prosecution.

The difference between one charge and multiple charges can affect the likelihood of a plea bargain, the strategy for trial, and, if the defendant is convicted, the length of a prison sentence. This Note, citing numerous examples of these cases, shows that the decision to charge a defendant with multiple offenses is often arbitrary and inconsistent. This Note first categorizes the overlapping and confusing methods courts use in determining the number of offenses to allow. This Note then describes the implications of these decisions and why their inconsistencies undermine principles of fairness in some criminal justice trials.

Finally, this Note proposes that courts should apply three existing legal doctrines when making these choices to promote fairer and more consistent decisions.