Doctrine of Merger in Criminal Sentencing

The doctrine of merger applies in a criminal setting where the defendant committed two or more crimes in a single act but is only charged with one crime. Essentially, the multiple instances are “merged” by a judge or combined into a single charge.

The merger doctrine benefits criminal defendants by merging the related charges into one criminal conviction rather than a conviction for multiple counts or crimes.

Usually, the most serious offense is the last one standing rather than the minor offense. The defendant benefits from the doctrine by only being sentenced for one conviction rather than several, which means they will spend less time incarcerated or pay a smaller fine. This also helps the defendant with regard to their record, for they will only have one conviction on the record rather than several.

What is Double Jeopardy, and How Does the Merger Doctrine Help Prevent It?

Double jeopardy is a constitutional protection under the 5th Amendment to the U.S. Constitution for those accused and later tried for a crime. If the jury has found them not guilty, or if the case has been dismissed once the jury has been constituted, the government may not try them again for the same act or set of acts. The Constitution holds that a person may not be placed into “jeopardy of life or limb” more than once for a single crime.

By merging the offenses substantially related to the final convicted offense, the state and federal prosecutors cannot charge the merged offenses even though there was no finding of not guilty (or any other finding) on the merged offenses.

Using again the situation of a charge for burglary being merged into the manslaughter charge, if the merger doctrine is in place, then the defendant can never be prosecuted for the burglary. By dropping the lesser offense, the defendant is not punished twice for the same act, which would violate the double jeopardy clause of the 5th Amendment.

What Crimes Qualify for Merging?

When speaking of the merger doctrine, there are differences across states and the federal legal system. However, generally, merger applies in two primary areas of criminal law:

• Lesser included offenses. When a defendant commits an act or series of acts that comprise one criminal offense, there may be more than one offense that applies to that act. Lesser included offenses are those crimes that have similar elements to the more serious crime the defendant is convicted of and, as a result, will be merged with the more serious offense for sentencing purposes. Consider the following example: a defendant is found guilty of entering the victim’s property without permission, breaking their window, and climbing through it. Once inside, the defendant takes the victim’s television and computer before escaping the residence. The most serious offense the defendant has committed is burglary, a felony. The lesser offenses, and the ones that will likely be merged with the burglary conviction, include:
  • Trespassing
  • Destruction of property, namely the window.
  • Larceny or theft of the television and computer.
• Attempted Criminal Offenses. If a defendant does not complete a crime, they may still be charged with an attempt to commit it. For example, if the defendant tried to murder someone but the victim survived, the defendant cannot be charged with murder but can be charged with attempted murder, also a very serious offense. If the murder was completed, the prosecution may want to charge the defendant with murder and attempted murder. This is done so that if the jury finds that the defendant was not culpable of murdering someone, the jury can still find the defendant liable by convicting them of the attempt to commit the murder.
  • There are many crimes in which only an attempt to commit the crime constitutes its own offense. However, if the defendant is found to have committed the completed crime, under the merger doctrine the attempted charge is merged with the completed offense under the merger doctrine.

What Criminal Law Scenarios Do Not Allow Merging of Crimes or Sentences?

For criminal charges or convictions to be merged, the offenses must be closely related. There are some situations in which the crimes will not qualify for merging:

• The two crimes have different elements: If one of the charged crimes has an element that is not part of the other crime, the two cannot be merged. “Element” means the pieces of the charge that the state has to prove. For example, to convict someone of murder, the state must prove at least two elements: that the defendant physically committed the murder (took actions that led to the death of the victim) and that the defendant intended to cause the victim’s death, or at least serious bodily injury.
• Different evidence to support one or more elements: If the state intends to offer different evidence to support the conviction of the second crime, then the crimes cannot be merged.
• Crimes were not completed at the same time: If a defendant stole a candy bar from Store A today and then returned to the store the next day and stole something else, that will result in two separate criminal charges that are not eligible for merging because they occurred at different times.
• Conspiracy Charges: Many serious criminal acts also have the added charge of conspiracy for the crime, and conspiracy does not merge with the underlying offense. For example, if a spouse conspires with their new lover and plans the murder of the victim’s spouse and then carries out the murder, they can be convicted for both the murder and the charge of conspiracy to commit murder. Those two charges cannot be merged.

What is the Impact of Merging Criminal Offenses for the Defendant?

When the defendant’s crimes are merged, it tends to benefit the defendant in two ways:

1. Fewer charges are recorded on the defendant’s record. In the burglary example above, the defendant could be charged with burglary, trespass, destruction of property, and theft. However, if the defendant is convicted of burglary, then the remaining charges may be merged into the burglary conviction, thus showing only the conviction for burglary. Rather than four convictions on their record, they will only have one.
2. Shorter sentences or lesser penalties. If the defendant’s lesser charges are merged, as in the burglary example, they will only be subject to the maximum penalties for the burglary crime and none of the penalties for the other three. If the merger doctrine was not in place, the defendant could receive the following sentence:
   • Six years in prison for the burglary
   • Three years in prison for the larceny or theft charge
   • One year in prison or jail plus a fine of $1000 for the destruction of property charge (the window)
   • Six months in jail for the trespassing charge

Thus, the total number of years charged could be 6 + 3 + 1 plus six months and a fine of $1000, for 10 years and six months plus the fine. Because the lesser included offenses merge with the burglary, the defendant will only be sentenced to six years with no fine.

Do I Need a Criminal Lawyer to Help Me with the Merging of Criminal Offenses?

If you are facing criminal charges, you should consult a criminal defense lawyer immediately if you are facing criminal charges. A lawyer can explain your rights, investigate whether you have any defenses to the crimes charged, and represent you in court.