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


This question of merger is one of the most perplexing that courts face in the criminal sentencing process. This article not only explores that question but proposes specific new methods a court may use to resolve this question in a way consonant with the Constitution and the intent of the legislature.

The article takes as its starting point a brilliant analysis of the Double Jeopardy doctrine set out by Professor Ann Poulin of Villanova Law School in an article entitled Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot, 77 U. Colo. L. Rev. 595 (2006). Professor Poulin’s work demonstrates that the issue of consecutive sentencing (merger) is not an issue contained within the heartland of Double Jeopardy analysis at all and that its inclusion there with traditional successive prosecution matters serves neither discipline. Her analysis leaves merger on an island, in need of a definitive methodology for courts to use to employ it as a stand-alone concept of systematic importance. This article provides that scholarly methodology.

The methodology is based on a structured analysis of legislative intent found in both the elements of the offenses involved and the particular way in which the legislature has described the boundaries of those offenses for sentencing purposes. This methodology draws upon existing case interpretations and interpretive statutes, but forges new formulations meant to be readily applied in even the most complex of cases where the issue will arise.

While the article uses the Pennsylvania Crimes Code to explain the newly proposed merger methodology, the issues raised are common to any system based primarily on the Model Penal Code. This is a fresh look at a complex and important issue, a look that the courts will hopefully convert into practical, doctrinal application.


Courts | Criminal Law | Criminal Procedure | Legislation | Litigation

Date of this Version

December 2006