Double Jeopardy: Modern History

Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb (U.S. Constitution, Amendment Five).

Twenty simple words contained in the Fifth Amendment to the U.S. Constitution protect individuals against being subjected to double jeopardy for any crime. While the phrase ‘‘double jeopardy’’ is commonly understood to prohibit multiple prosecutions and multiple punishments for the same criminal offense, the parameters of the Fifth Amendment promise are often difficult to distill and appreciate. History provides only slight guidance to the contours of this protection. Instead, at least in the United States, the double jeopardy doctrine has been amplified, if not solidified, by judicial interpretations of these often quoted twenty simple words.

History

Double jeopardy is neither a new nor uniquely American concept. Rather, the principle of double jeopardy dates back to the early Roman period and has a historical pedigree spanning well over one thousand years. In fact, there are primitive notions of double jeopardy appearing in the Bible. In the book of Nahum, we are assured in one translation that ‘‘he will not take vengeance twice on his foes’’ and, in an alternate translation, ‘‘affliction will not rise up a second time.’’ While jurists and scholars debate the origins of double jeopardy, traces of the doctrine can be readily distilled from English common law. The doctrine does not, however, appear in the Magna Carta.

The first known codified reference to double jeopardy was set forth in the Digest of Justinian. Therein, the pronouncement was made that ‘‘the governor should not permit the same person to be again accused of a crime of which he had been acquitted.’’ The concept continued to change and improve through many kings and queens in England. Thereafter, the writings of Lord Coke and William Blackstone were commingled to provide us with the modern day concept of double jeopardy. Lord Coke is credited with carving out the three categories to which double jeopardy historically applied: autrefois acquit, autrefois convict, and former pardon. Blackstone further advanced the doctrine by pronouncing that ‘‘the plea of autrefois aquit, or a formal acquittal, is grounded on the universal maxim . . . that no man is to be brought into jeopardy of his life more than once for the same offense.’’

A main distinction between historical doctrine and modern double jeopardy provisions is that the former only applied to capital crimes. In modern times, double jeopardy is not limited only to crimes affecting ‘‘life or limb’’ but, rather, applies to all criminal prosecutions and punishments in which an individual is at risk of multiple attacks on his or her liberty.

Colonial Massachusetts gave birth to the modern American approach to double jeopardy in its Body of Liberties published in 1641. As one author noted, ‘‘[t]his document bears a close resemblance to the Bill of Rights later to become a stock feature of American constitutions, state and federal.’’ Similar to prior pronouncements, the Body of Liberties provided that ‘‘no man shall be twice sentenced by civil justice for one and the same crime, offense, or trespass.’’

Over one hundred years later, in 1784, New Hampshire became the first state to protect against double jeopardy in its Bill of Rights, proclaiming that ‘‘no subject shall be liable to be tried, after an acquittal, for the same crime or offense.’’ James Madison’s proffering at the Constitutional Convention five years later was strikingly similar to the previous colonial offerings declaring that ‘‘no personal shall be subject, except in case of impeachment, to more than one trial, or one punishment for the same offense.’’ Yet, it was not until 1790 in the Pennsylvania Declaration of Rights that a phrase resembling our modern phraseology appeared. The Pennsylvania Declaration of Rights succinctly stated that ‘‘no person shall, for the same offense, be twice put in jeopardy of life or limb.’’ From these ideals sprang the modern protection contained in twenty simple words.

International Application

In modern times, remnants of double jeopardy exist in many countries, including Australia, Canada, the United Kingdom, parts of Asia, and the United States. In fact, protection against double jeopardy is now provided for in the International Covenant on Civil and Political Rights and the European Union Constitution and numerous documents governing international criminal tribunals, including the International Criminal Tribunal for Yugoslavia, the International Criminal Tribunal for Rwanda, and the nascent International Criminal Court.

There are significant differences, however, between the English and American perspective of precisely when ‘‘jeopardy’’ attaches. The English rule, which retains the common-law approach, limits application of double jeopardy to instances in which a defendant has been acquitted or convicted. In other words, the English rule requires a full, completed trial. In contrast, the American rule attaches jeopardy as soon as the jury is sworn, in a jury trial, or when the prosecution offers its first piece of evidence in a trial before the court. Thus, the concept of jeopardy attaches much earlier in the American legal system than in its English counterpart.

Despite the apparent staying power of the general double jeopardy concept, England recently diluted its double jeopardy protection with parliamentary passage of the Criminal Justice Act 2003. England’s departure from the stricter version existing in the United States permits a subsequent prosecution following acquittal for certain offenses, such as murder, rape, kidnapping and manslaughter, when new and compelling evidence arises. Additionally, individuals acquitted prior to 2003 may nonetheless be subject to prosecution retroactively under the act. The revised English approach was motivated by notorious trials in which individuals adjudged not guilty later confessed to committing the crimes for which they were accused. Societal tolerance for such perceived travesties of justice waned and the English legislators responded to victims’ rights groups in altering their previously steadfast approach to double jeopardy.

American Application

While numerous countries maintain variations of double jeopardy, the American approach remains one of the more potent provisions. Enshrined in the Constitution, the proscription against double jeopardy cannot be undermined by the kind of legislative pronouncement that occurred in England and appears to be under way in Australia. Furthermore, unlike Korea, where the prosecution can appeal a defendant’s acquittal, only in the rarest instances may the state or federal government appeal a criminal judgment.

The American interpretation, however, has not always provided criminal defendants a formidable defense. For nearly two hundred years, the Fifth Amendment’s double jeopardy protection was limited solely to actions by the federal government and its subdivisions. Not until the Supreme Court’s 1969 decision in Benton v. Maryland, 395 U.S. 784 (1969), did the Double Jeopardy Clause extend equally to state governments. Benton considered the Fifth Amendment promise against multiple prosecutions and multiple punishments to ‘‘represent a fundamental ideal in our constitutional heritage’’ and, accordingly, held double jeopardy to be applicable to the states through incorporation of the Fourteenth Amendment. Having so found, the Supreme Court decision in Benton mandates that double jeopardy determinations now be governed by federal standards rather than state nuances.

Nonetheless, states retain certain flexibility under double jeopardy due to the dual sovereignty doctrine. In 1922, the Supreme Court explicitly recognized the power of distinct sovereigns to prosecute an individual for criminal conduct falling within the jurisdiction of both in United States v. Lanza, 260 U.S. 377 (1922). Thereafter, in 1985, the Court further expanded the dual sovereignty doctrine to permit separate prosecutions by distinct state sovereigns in Heath v. Alabama, 474 U.S. 82 (1985). By holding that each state has independent power to determine an individual’s guilt or innocence under the state’s criminal code for all conduct occurring within that state, the Supreme Court permitted a subsequent prosecution of Heath for murder, which resulted in a much harsher sentence than had been received in the other state prosecution. The Supreme Court held that separate, independent sovereigns possess the right to try a criminal defendant for conduct occurring within their separate borders. The conduct, constituting independent criminal acts in each state, is not protected by double jeopardy because the conduct offends both sovereigns equally.

The dual sovereignty doctrine was extended recently to embrace dual prosecution by the federal government and tribal courts on Indian reservations in United States v. Lara, 541 U.S. 193 (2004). Thus, although the Fifth Amendment protects against multiple prosecutions by the same sovereign—or subdivisions thereof—double jeopardy poses no bar to separate prosecutions by independent sovereigns.

Two of the more renowned instances of separate prosecutions by independent sovereigns include the Rodney King case defendants’ subsequent federal trials following state acquittals and Terry Nichols’s subsequent state capital trial following a federal trial resulting in a life sentence.

Finally, double jeopardy does not affect the ability of a private individual to sue civilly for conduct that may be prohibited by criminal and civil law. The paradigm example continues to be the O. J. Simpson case, in which Simpson was subsequently sued civilly for wrongful death following his acquittal for murder.

Multiple Prosecutions

In its most literal sense, the Double Jeopardy Clause protects against multiple prosecutions after an individual has been acquitted. Double jeopardy ensures that the prosecution will put forth its strongest case first and allow a jury, rightly or wrongly, to assess the defendant’s guilt.

In the United States, jeopardy attaches once the jury is sworn or once the prosecution introduces evidence in a trial before the court. Once jeopardy attaches, courts and prosecutors are prevented from retrying an individual for the same offense unless: (1) the jury is unable to return a verdict, or (2) a mistrial is granted and there is a manifest necessity to retry the defendant in the interest of justice. This second category presumes the absence of prosecutorial or judicial misconduct in securing the mistrial. Finally, although the ability of the government to appeal criminal convictions is extremely limited, a defendant’s successful appeal will not bar his or her reprosecution on double jeopardy grounds as voluntary appeal operates as a wavier to reprosecution.

The double jeopardy limitation of the same offense does not preclude multiple counts emanating from a single criminal episode and does not prohibit multiple prosecutions for separate crimes against separate individuals, even when there was but a single criminal act, such as two murders during a single robbery. Rather, the ‘‘same offense’’ test as set forth in Blockburger v. United States, 284 U.S. 299 (1932), to ‘‘determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.’’ A good example of the Blockburger test in application is the Supreme Court’s decision in Brown v. Ohio, 432 U.S. 161 (1977), where the Court determined that an attempted second prosecution for stealing an automobile was barred by double jeopardy when the defendant had previously been convicted of operating the same vehicle without the owner’s consent. Finding that the misdemeanor count of joyriding was a lesser-included offense of auto theft, the Court held that the defendant had been twice put in jeopardy for the same offense and reversed the subsequent prosecution.

As a reminder that double jeopardy operates as a limitation on courts and prosecutors, the Brown Court struck down the state court’s interpretation of double jeopardy, stating that the ‘‘Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.’’

Likewise, the Supreme Court found in Ashe v. Swenson, 397 U.S. 436, that the doctrine of collateral estoppel is embodied by the Double Jeopardy Clause. In Ashe, the defendant had been accused of participating in the robbery of six men at a poker game. Prosecutors decided to try the defendant for only one of the robberies first. At this trial, the main issue was identity and the jury returned a verdict of not guilty due to insufficient evidence. During the subsequent trial, defendant raised the defense of double jeopardy when the state presented a much stronger argument regarding identification. The Court had no difficulty finding this second attempted trial to be barred by double jeopardy through the application of collateral estoppel (the issue of identity having been resolved in the first trial), remarking that ‘‘for whatever else that constitutional guarantee may embrace, it surely protects a man who has been acquitted from having to ‘run the gauntlet’ a second time.’’

Multiple Punishments

A person may not be punished twice for the same offense. The difficulty often arises in defining punishment. For instance, individuals that appeal their criminal conviction may be reprosecuted and repunished and this does not violate double jeopardy. However, someone who has been convicted of a lesser included offense may not be retried or later punished for the greater crime, even following a successful appeal. This is because failure to convict on the greater offense retains the initial jeopardy and subsequent efforts to resurrect the previously faced, though defeated, charge are barred.

Similarly, once an individual has successfully avoided the death penalty in the initial proceeding, a successful appeal of the case will not permit retrial where the defendant is again subjected to possible Capital Punishment. Instead, an individual that was spared the death penalty is presumed to have had jurors find in his or her favor on the capital issues and can only be reprosecuted with a potential prison term. Other than death penalty cases, there is no limit on Sentencing.html>ReSentencing following a proper retrial.

Another important question under the multiple punishment doctrine is whether civil fines, forfeitures, and administrative proceedings qualify as ‘‘punishment.’’ The general rule is that matters that are remedial in nature and not intended as punishment do not equate to punishment. Loss of driving license following a charge of driving while intoxicated is the prime example of an administrative sanction that is not considered as punishment for double jeopardy purposes.

The more controversial issue is whether a civil forfeiture of a home, car, or simply monetary funds qualifies as ‘‘punishment’’ under double jeopardy. The general answer following the Supreme Court’s decision in United States v. Ursery, 518 U.S. 267 (1996), is that civil forfeitures do not constitute punishment under double jeopardy. Despite the fact that civil forfeitures may contain punitive elements, the Ursery Court found sufficient nonpunitive elements involved to permit application of civil forfeiture and criminal sanction in the same proceeding without violating double jeopardy. While civil forfeitures may be immune from claims of double jeopardy, such fines and forfeitures may nonetheless be subject to review under the Eight Amendment proscription against cruel and unusual punishment.

MARY M. PENROSE

References and Further Reading

• Sigler, Jay A. ‘‘A History of Double Jeopardy.’’ American Journal of Legal History 7 (1963):285.

Cases and Statutes Cited

• Ashe v. Swenson, 397 U.S. 436 Benton v. Maryland, 395 U.S. 784 (1969)
• Blockburger v. United States, 284 U.S. 299 (1932)
• Brown v. Ohio, 432 U.S. 161 (1977)
• Heath v. Alabama, 474 U.S. 82 (1985)
• United States v. Lanza, 260 U.S. 377 (1922)
• United States v. Lara, 541 U.S. 193 (2004)
• United States v. Ursery, 518 U.S. 267 (1996)