Double Jeopardy

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


Development and Scope

“The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”39 A second “vitally important interest[ ]” embodied in the Double Jeopardy Clause “is the preservation of ‘the finality of judgments.’”40

The concept of double jeopardy goes far back in history, but its development was uneven and its meaning has varied. The English development, under the influence of Coke and Blackstone, came gradually to mean that a defendant at trial could plead former conviction or former acquittal as a special plea in bar to defeat the prosecution.41 In this country, the common-law rule was in some cases limited to this rule and in other cases extended to bar a new trial even though the former trial had not concluded in either an acquittal or a conviction. The rule’s elevation to fundamental status by its inclusion in several state bills of rights following the Revolution continued the differing approaches.42 Madison’s version of the guarantee as introduced in the House of Representatives read: “No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense.”43 Opposition in the House proceeded on the proposition that the language could be construed to prohibit a second trial after a successful appeal by a defendant and would therefore either constitute a hazard to the public by freeing the guilty or, more likely, result in a detriment to defendants because appellate courts would be loath to reverse convictions if no new trial could follow, but a motion to strike “or trial” from the clause failed.44 As approved by the Senate, however, and accepted by the House for referral to the states, the present language of the clause was inserted.45

Throughout most of its history, this clause was binding only against the Federal Government. In Palko v. Connecticut,46 the Court rejected an argument that the Fourteenth Amendment incorporated all the provisions of the first eight Amendments as limitations on the states and enunciated the due process theory under which most of those Amendments do now apply to the states. Some guarantees in the Bill of Rights, Justice Cardozo wrote, were so fundamental that they are “of the very essence of the scheme of ordered liberty” and “neither liberty nor justice would exist if they were sacrificed.”47 But the Double Jeopardy Clause, like many other procedural rights of defendants, was not so fundamental; it could be absent and fair trials could still be had. Of course, a defendant’s due process rights, absent double jeopardy consideration per se, might be violated if the state “creat[ed] a hardship so acute and shocking as to be unendurable,” but that was not the case in Palko.48 In Benton v. Maryland, however, the Court concluded “that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage. . . . Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ the same constitutional standards apply against both the State and Federal Governments.”49 Therefore, the double jeopardy limitation now applies to both federal and state governments and state rules on double jeopardy, with regard to such matters as when jeopardy attaches, must be considered in the light of federal standards.50

In a federal system, different units of government51 may have different interests to serve in the definition of crimes and the enforcement of their laws, and where the different units have overlapping jurisdictions a person may engage in conduct that will violate the laws of more than one unit.52 Although the Court had long accepted in dictum the principle that prosecution by two governments of the same defendant for the same conduct would not constitute double jeopardy, it was not until United States v. Lanza53 that the conviction in federal court of a person previously convicted in a state court for performing the same acts was sustained. “We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory. . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.”54 The “dual sovereignty” doctrine is not only tied into the existence of two sets of laws often serving different federal-state purposes and the now overruled principle that the Double Jeopardy Clause restricts only the national government and not the states,55 but it also reflects practical considerations that undesirable consequences could follow an overruling of the doctrine. Thus, a state might preempt federal authority by first prosecuting and providing for a lenient sentence (as compared to the possible federal sentence) or acquitting defendants who had the sympathy of state authorities as against federal law enforcement.56 The application of the clause to the states has therefore worked no change in the “dual sovereign” doctrine.57 The dual sovereignty doctrine has also been applied to permit successive prosecutions by two states for the same conduct,58 and to permit a federal prosecution after a conviction in an Indian tribal court for an offense stemming from the same conduct.59 Of course, when in fact two different units of the government are subject to the same sovereign, the Double Jeopardy Clause does bar separate prosecutions by them for the same offense.60

The clause speaks of being put in “jeopardy of life or limb,” which as derived from the common law, generally referred to the possibility of capital punishment upon conviction, but it is now settled that the clause protects with regard “to every indictment or information charging a party with a known and defined crime or misdemeanor, whether at the common law or by statute.”61 Despite the clause’s literal language, it can apply as well to sanctions that are civil in form if they clearly are applied in a manner that constitutes “punishment.”62 Ordinarily, however, civil in rem forfeiture proceedings may not be considered punitive for purposes of double jeopardy analysis.63 and the same is true of civil commitment following expiration of a prison term.64

Because a prime purpose of the clause is to protect against the burden of multiple trials, a defendant who raises and loses a double jeopardy claim during pretrial or trial may immediately appeal the ruling; this is a rare exception to the general rule prohibiting appeals from nonfinal orders.65

During the 1970s, the Court decided an uncommonly large number of cases raising double jeopardy claims.66 Instead of the clarity that often emerges from intense consideration of a particular issue, however, double jeopardy doctrine has descended into a state of “confusion,” with the Court acknowledging that its decisions “can hardly be characterized as models of consistency and clarity.”67 In large part, the re-evaluation of doctrine and principle has not resulted in the development of clear and consistent guidelines because of the differing emphases of the Justices upon the purposes of the clause and the consequent shifting coalition of majorities based on highly technical distinctions and individualistic fact patterns. Thus, some Justices have expressed the belief that the purpose of the clause is only to protect final judgments relating to culpability, either of acquittal or conviction, and that English common law rules designed to protect the defendant’s right to go to the first jury picked had early in our jurisprudence become confused with the Double Jeopardy Clause. Although they accept the present understanding, they do so as part of the Court’s superintending of the federal courts and not because the understanding is part and parcel of the clause; in so doing, of course, they are likely to find more prosecutorial discretion in the trial process.68 Others have expressed the view that the clause not only protects the integrity of final judgments but, more important, that it protects the accused against the strain and burden of multiple trials, which would also enhance the ability of government to convict.69 Still other Justices have engaged in a form of balancing of defendants’ rights with society’s rights to determine when reprosecution should be permitted when a trial ends prior to a final judgment not hinged on the defendant’s culpability.70 Thus, the basic area of disagreement, though far from the only one, centers on the trial from the attachment of jeopardy to the final judgment.

39 Green v. United States, 355 U.S. 184, 187–88 (1957). The passage is often quoted with approval by the Court. E.g., Crist v. Bretz, 437 U.S. 28, 35 (1978); United States v. DiFrancesco, 449 U.S. 117, 127–28 (1980); Yeager v. United States, 557 U.S. ___, No. 08–67, slip op. at 7 (2009). For a comprehensive effort to assess the purposes of application of the clause, see Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81.

40 Yeager v. United States, 557 U.S. ___, No. 08–67, slip op. at 6, 7 (2009), quoting Crist v. Bretz, 437 U.S. 28, 33 (1978).

41 M. Friedland, Double Jeopardy part 1 (1969); Crist v. Bretz, 437 U.S. 28, 32–36 (1978), and id. at 40 (Justice Powell dissenting); United States v. Wilson, 420 U.S. 332, 340 (1975).

42 J. Sigler, Double Jeopardy: The Development Of A Legal And Social Policy 21–27 (1969). The first bill of rights that expressly adopted a double jeopardy clause was the New Hampshire Constitution of 1784. “No subject shall be liable to be tried, after an acquittal, for the same crime or offence.” Art. I, Sec. XCI, 4 F. Thorpe, The Federal and State Constitution, reprinted in H.R. Doc. No. 357, 59th Congress, 2d Sess. 2455 (1909). A more comprehensive protection was included in the Pennsylvania Declaration of Rights of 1790, which had language almost identical to the present Fifth Amendment provision. Id. at 3100.

43 1 Annals Of Congress 434 (June 8, 1789).

44 Id. at 753.

45 2 Bernard Schwartz, The Bill Of Rights: A Documentary History 1149, 1165 (1971). In Crist v. Bretz, 437 U.S. 28, 40 (1978) (dissenting), Justice Powell attributed to inadvertence the broadening of the “rubric” of double jeopardy to incorporate the common law rule against dismissal of the jury prior to verdict, a question the majority passed over as being “of academic interest only.” Id. at 34 n.10.

46 302 U.S. 319 (1937).

47 302 U.S. at 325, 326.

48 302 U.S. at 328.

49 395 U.S. 784, 795, 795 (1969) (citation omitted).

50 Crist v. Bretz, 437 U.S. 28, 37–38 (1978). But see id. at 40 (Justices Powell and Rehnquist and Chief Justice Burger dissenting) (standard governing states should be more relaxed).

51 Id. See also cases cited in Bartkus v. Illinois, 359 U.S. 121, 132 n.19 (1959), and Abbate v. United States, 359 U.S. 187, 192–93 (1959).

52 The problem was recognized as early as Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820), and the rationale of the doctrine was confirmed within thirty years. Fox v. Ohio, 46 U.S. (5 How.) 410 (1847); United States v. Marigold, 50 U.S. (9 How.) 560 (1850); Moore v. Illinois, 55 U.S. (14 How.) 13 (1852).

53 260 U.S. 377 (1922).

54 260 U.S. at 382. See also Hebert v. Louisiana, 272 U.S. 312 (1924); Screws v. United States, 325 U.S. 91, 108 (1945); Jerome v. United States, 318 U.S. 101 (1943).

55 Benton v. Maryland, 395 U.S. 784 (1969), extended the clause to the states.

56 Reaffirmation of the doctrine against double jeopardy claims as to the Federal Government and against due process claims as to the states occurred in Abbate v. United States, 359 U.S. 187 (1959), and Bartkus v. Illinois, 359 U.S. 121 (1959), both cases containing extensive discussion and policy analyses. The Justice Department follows a policy of generally not duplicating a state prosecution brought and carried out in good faith, see Petite v. United States, 361 U.S. 529, 531 (1960); Rinaldi v. United States, 434 U.S. 22 (1977), and several provisions of federal law forbid a federal prosecution following a state prosecution. E.g., 18 U.S.C. §§ 659, 660, 1992, 2117. The Brown Commission recommended a general statute to this effect, preserving discretion in federal authorities to proceed upon certification by the Attorney General that a United States interest would be unduly harmed if there were no federal prosecution. National Commission On Reform Of Federal Criminal Laws, Final Report 707 (1971).

57 United States v. Wheeler, 435 U.S. 313 (1978) (dual sovereignty doctrine permits federal prosecution of an Indian for statutory rape following his plea of guilty in a tribal court to contributing to the delinquency of a minor, both charges involving the same conduct; tribal law stemmed from the retained sovereignty of the tribe and did not flow from the Federal Government).

58 Heath v. Alabama, 474 U.S. 82 (1985) (defendant who crossed state line in the course of a kidnap and murder was prosecuted for murder in both states).

59 United States v. Lara, 541 U.S. 193 (2004) (federal prosecution for assaulting a federal officer after tribal conviction for “violence to a policeman”). The Court concluded that Congress has power to recognize tribal sovereignty to prosecute nonmember Indians, that Congress had done so, and that consequently the tribal prosecution was an exercise of tribal sovereignty, not an exercise of delegated federal power on which a finding of double jeopardy could be based.

60 See, e.g., Waller v. Florida, 397 U.S. 387 (1970) (trial by municipal court precluded trial for same offense by state court); Grafton v. United States, 206 U.S. 333 (1907) (trial by military court-martial precluded subsequent trial in territorial court). More recently, in Puerto Rico v. Sanchez Valle, the Court held that the separate prosecution of an individual by the United States and Puerto Rico for the same underlying conduct ran afoul of the Double Jeopardy Clause because the two governments are not “separate sovereigns.” See 579 U.S. ___, No. 15–108, slip op. at 17–18 (2016). Even though Puerto Rico came to exercise self-rule through a popularly ratified constitution in the mid-twentieth century, the Court concluded that the “original source” for its authority to prosecute crimes ultimately derived from Congress and, specifically, a federal statute which authorized the people of Puerto Rico to draft their own constitution, meaning that the challenged prosecution amounted to a reprosecution by the same sovereign. See id. at 14–16 (2016).

61 Ex parte Lange, 85 U.S. (18 Wall.) 163, 169 (1874). The clause generally has no application in noncriminal proceedings. Helvering v. Mitchell, 303 U.S. 391 (1938).

62 The clause applies in juvenile court proceedings that are formally civil. Breed v. Jones, 421 U.S. 519 (1975). See also United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984); United States v. Halper, 490 U.S. 435 (1989) (civil penalty under the False Claims Act constitutes punishment if it is overwhelmingly disproportionate to compensating the government for its loss, and if it can be explained only as serving retributive or deterrent purposes); Montana Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767 (1994) (tax on possession of illegal drugs, “to be collected only after any state or federal fines or forfeitures have been satisfied,” constitutes punishment for purposes of double jeopardy). But see Seling v. Young, 531 U.S. 250 (2001) (a statute that has been held to be civil and not criminal in nature cannot be deemed punitive “as applied” to a single individual). The issue of whether a law is civil or punitive in nature is essentially the same for ex post facto and for double jeopardy analysis. 531 U.S. at 263.

63 United States v. Ursery, 518 U.S. 267 (1996) (forfeitures, pursuant to 19 U.S.C. § 981 and 21 U.S.C. § 881, of property used in drug and money laundering offenses, are not punitive). The Court in Ursery applied principles that had been set forth in Various Items of Personal Property v. United States, 282 U.S. 577 (1931) (forfeiture of distillery used in defrauding government of tax on spirits), and United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984) (forfeiture, pursuant to 18 U.S.C. § 924(d), of firearms “used or intended to be used in” firearms offenses). A two-part inquiry is followed. First, the Court inquires whether Congress intended the forfeiture proceeding to be civil or criminal. Then, if Congress intended that the proceeding be civil, the court determines whether there is nonetheless the “clearest proof” that the sanction is “so punitive” as to transform it into a criminal penalty. 89 Firearms, 465 U.S. at 366.

64 Kansas v. Hendricks, 521 U.S. 346, 369–70 (1997) (commitment under state’s Sexually Violent Predator Act).

65 Abney v. United States, 431 U.S. 651 (1977).

66 See United States v. DiFrancesco, 449 U.S. 117, 126–27 (1980) (citing cases).

67 Burks v. United States, 437 U.S. 1, 9, 15 (1978). One result is instability in the law. Thus, Burks overruled, to the extent inconsistent, four cases decided between 1950 and 1960, and United States v. Scott, 437 U.S. 82 (1978), overruled a case decided just three years earlier, United States v. Jenkins, 420 U.S. 358 (1975).

68 See Crist v. Bretz, 437 U.S. 28, 40 (1978) (dissenting opinion). Justice Powell, joined by Chief Justice Burger and Justice Rehnquist, argued that, with the Double Jeopardy Clause so interpreted, the Due Process Clause could be relied on to prevent prosecutorial abuse during the trial designed to abort the trial and obtain a second one. Id. at 50. All three have joined, indeed, in some instances, have authored, opinions adverting to the role of the double jeopardy clause in protecting against such prosecutorial abuse. E.g., United States v. Scott, 437 U.S. 82, 92–94 (1978); Oregon v. Kennedy, 456 U.S. 667 (1982) (but narrowing scope of concept).

69 United States v. Scott, 437 U.S. 82, 101 (1978) (dissenting opinion) (Justices Brennan, White, Marshall, and Stevens).

70 Thus, Justice Blackmun has enunciated positions recognizing a broad right of defendants much like the position of the latter three Justices, Crist v. Bretz, 437 U.S. 28, 38 (1978) (concurring), and he joined Justice Stevens’ concurrence in Oregon v. Kennedy, 456 U.S. 667, 681 (1982), but he also joined the opinions in United States v. Scott, 437 U.S. 82 (1978), and Arizona v. Washington, 434 U.S. 497 (1978) (Justice Blackmun concurring only in the result).

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