With respect to sentencing, double jeopardy analysis turns on whether Congress clearly expressed its intent to impose multiple punishments on repeat sex offenders. It is questioned whether Brett M. Shockley clearly demonstrated a violation of double jeopardy. While the constitutionality of the current laws remains in doubt, there is less doubt surrounding Shockley's attack on the wisdom of what Congress and the courts have wrought. Solution 1 proposes that life imprisonment be replaced by a maximum punishment of 25 years for repeat offenders. The downside to this pragmatic solution is that the government appears to be saying that it may continue to violate constitutional doctrines so long as it reduces the actual incarceration time of those whose rights have been violated. Solution 2 advocates discarding the supervised release regime and returning to a parole scheme in the federal criminal justice system. Solution 2, however, may unduly exalt form over substance because, regardless of whether the repeat offender faces revocation of parole or revocation of supervised release, he may wind up with very substantial periods of incarceration. Under Solution 3, defendants would be entitled to the same due process protections - specifically the reasonable doubt standard and right to a jury trial - at revocation hearings as they are at full-blown prosecutions. The only downside to Solution 3 is the scope of its effect on the criminal justice system.
Ronald J. Bacigal, The Company of Scoundrels, 67 Wash. & Lee L. Rev. 401 (2010).