DOCTRINE OF DOUBLE JEOPARDY

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 ma e repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, e!pense and ordeal and compelling him to live in a continuing state of an!iety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.'' "# The concept of double jeopardy goes far bac in history, but its development was uneven and its meaning has varied. The $nglish development, under the influence of %o e and &lac stone, came gradually to mean that a defendant at trial could plead former conviction or former ac'uittal as a special plea in bar to defeat the prosecution. () *n this country, the common-law rule was in some cases limited to this rule and in other cases e!tended to bar a new trial even though the former trial had not concluded in either an ac'uittal or a conviction. The rule's elevation to fundamental status by its inclusion in several state bills of rights following the +evolution continued the differing approaches. (, -adison's version of the guarantee as introduced in the .ouse of +epresentatives read/ ''0o person shall be subject, e!cept in cases of impeachment, to more than one punishment or trial for the same offense.'' (1 2pposition in the .ouse 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 li ely, 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 stri e ''or trial'' from the clause failed. (" As approved by the Senate, however, and accepted by the .ouse for referral to the States, the present language of the clause was inserted. (( Throughout most of its history, this clause was binding only against the 3ederal 4overnment. *n 5al o v. %onnecticut, (6 the %ourt rejected an argument that the 3ourteenth 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 &ill of +ights, 7ustice %ardozo wrote, were so fundamental that they are ''of the very essence of the scheme of ordered liberty'' and ''neither liberty nor justice would e!ist if they were sacrificed.'' (8&ut the double jeopardy clause, li e many other procedural rights of defendants, was not so fundamental9 it could be absent and fair trials could still be had. 2f 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 shoc ing as to be unendurable,'' but that was not the case in 5al o. (< *n &enton v. -aryland, (= however, the %ourt concluded ''that the double jeopardy prohibition . . . represents a fundamental ideal in our constitutional heritage. . . . 2nce it is decided that a particular &ill of +ights guarantee is 'fundamental to the American scheme of justice,' . . . the same constitutional standards apply against both the State and 3ederal 4overnments.'' 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. (# *n a federal system, different units of government 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. 6)Although the %ourt 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, 6, it was not until >nited States v. ?anza 61 that the conviction in federal court of a person previously convicted in a state court for performing the same acts was sustained. ''@e have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory . . . $ach government in determining what shall be an offense against its peace and dignity is e!ercising its own sovereignty, not that of the other.'' 6" The ''dual sovereignty'' doctrine is not only tied into the e!istence 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, 6( but it also reflects practical considerations that undesirable conse'uences could follow an overruling of the doctrine. Thus, a State might preempt federal authority by first prosecuting and providing for a lenient sentence Aas compared to the possible federal sentenceB or ac'uitting defendants who had the sympathy of state authorities as against federal law enforcement. 66 The application of the clause to the States has therefore wor ed no change in the ''dual sovereign'' doctrine.68 2f 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. 6< The dual sovereignty doctrine has also been applied to permit successive prosecutions by two states for the same conduct. 6= The clause spea s 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 nown and defined crime or misdemeanor, whether at the common law or by statute.'' 6# Cespite the %lause'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.'' 8) 2rdinarily, however, civil in rem forfeitureproceedings may not be considered punitive for purposes ofdouble jeopardy analysis. Supp., &ecause one prime purpose of the clause is the protection 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, a rare e!ception to the general rule prohibiting appeals from nonfinal orders. 8, Curing the ,#<)s especially, the %ourt decided an uncommonly large number of cases raising double jeopardy claims. 81 *nstead 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 %ourt ac nowledging that its decisions ''can hardly be characterized as models of

consistency and clarity.'' 8"*n 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 7ustices upon the purposes of the clause and the conse'uent shifting coalition of majorities based on highly technical distinctions and individualistic fact patterns. Thus, some 7ustices have e!pressed the belief that the purpose of the clause is only to protect final judgments relating to culpability, either of ac'uittal or conviction, and that $nglish common law rules designed to protect the defendant's right to go to the first jury pic ed had early in our jurisprudence become confused with the double jeopardy clause. @hile they accept the present understanding, they do so as part of the %ourt's superintending of the federal courts and not because the understanding is part and parcel of the clause9 in so doing, of course, they are li ely to find more prosecutorial discretion in the trial process. 8( 2th ers have e!pressed 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. 86 Still other 7ustices 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. 88 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. Footnotes :3ootnote "#; 4reen v. >nited States, "66 >.S. ,=(, ,=< -== A,#6<B. The passage is often approvingly 'uoted by the %ourt. $.g., %rist v. &retz, ("< >.S. 1=, "6 A,#<=B9 >nited States v. Ci3rancesco, ((# >.S. ,,<, ,1< - 1= A,#=)B. 3or a comprehensive effort to assess the purposes of application of the clause, see @esten D Crubel, Toward a 4eneral Theory of Couble 7eopardy, ,#<= Sup. %t. +ev. =,. :3ootnote (); -. 3riedland, Couble 7eopardy A,#8#B, part ,9 %rist v. &retz, ("< >.S. 1=, "1 -"8 A,#<=B, and id. at () A7ustice 5owell dissentingB9 >nited States v. @ilson, (1) >.S. ""1, "() A,#<6B. :3ootnote (,; 7. Sigler, Couble 7eopardy--The Cevelopment of a ?egal and Social 5olicy 1,-1< A,#8#B. The first bill of rights which e!pressly adopted a double jeopardy clause was the 0ew .ampshire %onstitution of ,<=(. ''0o subject shall be liable to be tried, after an ac'uittal, for the same crime or offence.'' Art. *, Sec. E%*, ( 3. Thorpe, The 3ederal and State %onstitution, reprinted in ..+. Coc. 0o. "6<, 6#th %ongress, 1d Sess. 1(66 A,#)#B. A more comprehensive protection was included in the 5ennsylvania Ceclaration of +ights of ,<#), which had language almost identical to the present 3ifth Amendment provision. *d. at ",)). :3ootnote (1; , Annals of %ongress ("( A7une =, ,<=#B. :3ootnote ("; *d. at <6".

:3ootnote ((; 1 &ernard Schwartz, The &ill of +ights/ A Cocumentary .istory ,,(#, ,,86 A,#<,B. *n %rist v. &retz, ("< >.S. 1=, () A,#<=B AdissentingB, 7ustice 5owell 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 'uestion the majority passed over as being ''of academic interest only.'' *d. at "( n.,). :3ootnote (6; ")1 >.S. ",# A,#"<B. :3ootnote (8; *d. at "16, "18. :3ootnote (<; *d. at "1=. :3ootnote (=; "#6 >.S. <=(, <#( -#6 A,#8#B. :3ootnote (#; %rist v. &retz, ("< >.S. 1=, "< -"= A,#<=B. &ut see id. at () A7ustices 5owell and +ehn'uist and %hief 7ustice &urger dissentingB Astandard governing States should be more rela!edB. :3ootnote 6); The problem was recognized as early as .ouston v. -oore, ,= >.S. A6 @heat.B , A,=1)B, and the rationale of the doctrine was confirmed within thirty years. 3o! v. 2hio, (8 >.S. A6 .ow.B (,)A,=(<B9 >nited States v. -arigold, 6) >.S. A# .ow.B 68) A,=6)B9 -oore v. *llinois, 66 >.S. A,( .ow.B ,"A,=61B. :3ootnote 6,; *d. And see cases cited in &art us v. *llinois, "6# >.S. ,1,, ,"1 n.,# A,#6#B, and Abbate v. >nited States, "6# >.S. ,=<, ,#1 -#" A,#6#B. :3ootnote 61; 18) >.S. "<< A,#11B. :3ootnote 6"; *d. at "=1. See also .ebert v. ?ouisiana, 1<1 >.S. ",1 A,#1(B9 Screws v. >nited States,"16 >.S. #,, ,)= A,#(6B9 7erome v. >nited States, ",= >.S. ,), A,#("B. :3ootnote 6(; &enton v. -aryland, "#6 >.S. <=( A,#8#B, e!tended the clause to the States. :3ootnote 66; +eaffirmation of the doctrine against double jeopardy claims as to the 3ederal 4overnment and against due process claims as to the States occurred in Abbate v. >nited States, "6# >.S. ,=< A,#6#B, and &art us v. *llinois, "6# >.S. ,1, A,#6#B, both cases containing e!tensive discussion and policy analyses. The 7ustice Cepartment follows a policy of generally not duplicating a state prosecution brought and carried out in good faith, see 5etite v. >nited States, "8, >.S. 61#, 6",A,#8)B9 +inaldi v. >nited States, ("( >.S. 11 A,#<<B, and several provisions of federal law forbid a federal prosecution following a state prosecution. $.g., ,= >.S.%. Sec. Sec. 86#, 88), ,##1, 1,,<. The &rown %ommission recommended a general statute to this effect, preserving discretion in federal authorities to proceed upon certification by the Attorney 4eneral that a >nited States interest would be unduly harmed if there were no federal prosecution. 0ational %ommission on +eform of 3ederal %riminal ?aws, 3inal +eport <)< A,#<,B.

:3ootnote 68; >nited States v. @heeler, ("6 >.S. "," A,#<=B Adual sovereignty doctrine permits federal prosecution of an *ndian for statutory rape following his plea of guilty in a tribal court to contributing to the delin'uency of a minor, both charges involving the same conduct9 tribal law stemmed from the retained sovereignty of the tribe and did not flow from the 3ederal 4overnmentB. :3ootnote 6<; 4rafton v. >nited States, 1)8 >.S. """ A,#)<B Atrial by military court-martial precluded subse'uent trial in territorial courtB9 @aller v. 3lorida, "#< >.S. "=< A,#<)B Atrial by municipal court precluded trial for same offense by state courtB. *t was assumed in an early case that refusal to answer 'uestions before one .ouse of %ongress could be punished as a contempt by that body and by prosecution by the >nited States under a misdemeanor statute, *n re %hapman, ,88 >.S. 88,, 8<1A,=#<B, but there had been no dual proceedings in that case and it seems highly unli ely that the case would now be followed. %f. %olombo v. 0ew For , ()6 >.S. # A,#<1B. :3ootnote 6=; .eath v. Alabama, (<( >.S. =1 A,#=6B Adefendant crossed state line in course of idnap murder, was prosecuted for murder in both statesB. :3ootnote 6#; $! parte ?ange, =6 >.S. A,= @all.B ,8", ,8# A,=<(B. The clause generally has no application in noncriminal proceedings. .elvering v. -itchell, ")" >.S. "#, A,#"=B. :3ootnote 8); The clause applies in juvenile court proceedings which are formally civil. &reed v. 7ones,(1, >.S. 6,# A,#<6B. See also >nited States v. .alper, (#) >.S. ("6 A,#=#B Acivil penalty under the 3alse %laims Act constitutes punishment if it is overwhelmingly disproportionate to compensating the government for its loss, and if it can be e!plained only as serving retributive or deterrent purposesB9 -ontana Cep't of +evenue v. Gurth +anch, ,,( S. %t. ,#"< A,##(B Ata! 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 jeopardyB. :3ootnote , A,##8 SupplementB; >nited States v. >rsery, ,,8 S. %t. 1,"6 A,##8B Aforfeitures, pursuant to ,# >.S.%. Sec. #=, and 1, >.S.%. Sec. ==,, of property used in drug and money laundering offenses, are not punitiveB. The %ourt in >rsery applied principles that had been set forth in Harious *tems of 5ersonal 5roperty v. >nited States, 1=1 >.S. 6<< A,#",B Aforfeiture of distillery used in defrauding government of ta! on spiritsB9 2ne ?ot $merald %ut Stones v. >nited States, ()# >.S. 1"1 A,#<1B Aper curiamB Aforfeiture ofjewels brought into >nited States without customs declarationB9 and >nited States v. 2ne Assortment of =# 3irearms, (86 >.S. "6( A,#=(B Aforfeiture, pursuant to ,= >.S.%. Sec. #1(AdB, of firearms ''used or intended to be used in'' firearms offensesB. A two-part in'uiry isfollowed. 3irst, the %ourt in'uires whether %ongress intended the forfeiture proceeding to be civil or criminal. Then, if %ongress 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. =# 3irearms, supra, (86 >.S. at "88. :3ootnote 8,; Abney v. >nited States, (", >.S. 86, A,#<<B.

:3ootnote 81; See >nited States v. Ci3rancesco, ((# >.S. ,,<, ,18 -1< A,#=)B Aciting casesB. :3ootnote 8"; &ur s v. >nited States, ("< >.S. ,, # , ,6 A,#<=B. 2ne result is instability in the law. Thus, &ur s overruled, to the e!tent inconsistent, four cases decided between ,#6) and ,#8), and >nited States v. Scott, ("< >.S. =1 A,#<=B, overruled a case decided just three years earlier, >nited States v. 7en ins, (1) >.S. "6= A,#<6B. :3ootnote 8(; See %rist v. &retz, ("< >.S. 1=, () A,#<=B Adissenting opinionB. 7ustice 5owell, joined by %hief 7ustice &urger and 7ustice +ehn'uist, 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. *d. at 6). 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. $.g., >nited States v. Scott, ("< >.S =1, #1-#( A,#<=B9 2regon v. Gennedy, (68 >.S. 88< A,#=1B Abut narrowing scope of conceptB. :3ootnote 86; >nited States v. Scott, ("< >.S. =1, ,), A,#<=B Adissenting opinionB A7ustices &rennan, @hite, -arshall, and StevensB. :3ootnote 88; Thus, 7ustice &lac mun has enunciated positions recognizing a broad right of defendants much li e the position of the latter three 7ustices, %rist v. &retz, ("< >.S. 1=, "= A,#<=B AconcurringB, and he joined 7ustice Stevens' concurrence in 2regon v. Gennedy, (68 >.S. 88<, 8=, A,#=1B, but he also joined the opinions in >nited States v. Scott, ("< >.S. =1 A,#<=B, and Arizona v. @ashington, ("( >.S. (#< A,#<=B A7ustice &lac mun concurring only in the resultB.