The Double Jeopardy Clause

. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb. . . .

—Judge Timothy M. Tymkovich & Adam Steinhilber

Introduction

The Fifth Amendment’s Double Jeopardy Clause embodies an ancient legal principle against government overreach, prohibiting multiple prosecutions for the same crime. This essay examines the clause’s origins and its still-developing jurisprudence. Specifically, the essay looks at the clause’s pre-Constitution history, role in the ratification debates, adoption as a written federal right, and interpretation by the Supreme Court.

History Before 1787

The origins of double jeopardy can be traced back to Greek, Roman, Jewish, canon, and, most recently, English common law.¹ Under this principle, a person could not be tried twice for the same offense. Sir William Blackstone observed that it was a “universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence.”² A defendant could have new criminal charges dismissed by pleading a former conviction, a former acquittal, or a pardon for the same offense.³ There is evidence that the principle applied only to felonies, which were punished by death.⁴

In colonial America, the Massachusetts Bay Colony promulgated the first written double-jeopardy protection.⁵ The 1641 Body of Liberties recognized that “[n]o man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse.” Courts in other colonies, including Virginia and New York, also recognized the common-law protection.⁶ In colonial Virginia, an acquitted defendant “was forever discharged” of the accusation.⁷ But the protection applied only if the defendant was tried by a court with jurisdiction; if a mistrial resulted because the jury was convened in the wrong county, the defendant could be tried again.⁸ New York courts dismissed charges on multiple occasions because the defendant had already been convicted for the same conduct.⁹

After independence, New Hampshire was the first state to enshrine this protection expressly in its constitution: “No subject shall be liable to be tried, after an acquittal, for the same crime or offense.”¹⁰ Other states soon followed.¹¹

The Constitutional Convention

There is no record of the delegates discussing double jeopardy at the Philadelphia Convention. The final Constitution guaranteed the right of trial by jury but did not include a double-jeopardy guarantee.

The Ratification Debates

During the ratification debates, the Anti-Federalists wanted a constitutional double-jeopardy protection. Brutus, for example, noted that under the common law, if a defendant “is acquitted no other court can call upon him to answer for the same crime.” However, under the proposed Constitution, the government could appeal an acquittal; thus, “[t]he whole matter may have a second hearing,” and the defendant “may be subjected to intolerable oppression.”¹²

After Maryland ratified the Constitution, a special committee recommended a constitutional amendment prohibiting a “second trial after acquittal.”¹³ New York’s statement of ratification similarly contained a prefatory declaration of rights, including “[t]hat no Person ought to be put twice in Jeopardy of Life or Limb for one and the same Offence, nor, unless in case of impeachment, be punished more than once for the same Offence.”¹⁴

Adoption of the Fifth Amendment

After the First Congress convened in 1789, efforts to add a bill of rights continued. Representative James Madison of Virginia proposed, along with other provisions, a double-jeopardy amendment: “No person shall be subject, [except] in case of impeachment, to more than one trial or one punishment for the same offence.”¹⁵ The public meaning of “offence” was quite broad; it referred to a “transgression” or “an act committed against law, or omitted where the law requires it.”¹⁶

During the ensuing debate, several members objected to limiting the protection to “more than one trial.” Representatives Egbert Benson of New York, Roger Sherman of Connecticut, and Theodore Sedgwick of Massachusetts feared this language could deprive a defendant of a beneficial second trial at which the defendant could attempt to “undo” his original conviction.¹⁷ Proponents like Representative Samuel Livermore of New Hampshire believed Madison’s language declared the current state of the law and would prevent a retrial after an acquittal.¹⁸ Representative Benson’s motion to strike the disputed language failed.¹⁹ Representative George Partridge of Massachusetts moved unsuccessfully to add “by any law of the United States” after “offence.”²⁰

In the Senate, the provision was substantially modified without any recorded discussion. The text was changed to provide that no person shall “be twice put in jeopardy of life or limb by any public prosecution” for the same offense. The phrase “by any public prosecution” was later dropped. The text then provided: “nor shall any person be subject to be put in jeopardy of life or limb, for the same offence.” After further deliberations, the wording was slightly modified, yielding the final version: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”²¹ The Senate language, as modified, was ratified in 1791 as part of the Fifth Amendment.

Federal Practice

Over time, the U.S. Supreme Court has identified three protections that the clause encompasses: no second prosecution for the same offense after an acquittal, no second prosecution for the same offense after a guilty verdict, and no multiple punishments for the same offense.²² The clause has not been read literally to apply only to death penalty cases where a person’s “life or limb” is in jeopardy.²³ Rather, the protection applies to any indictment or information charging a person with any statutory or common-law felony or misdemeanor sanctioned by death, imprisonment, or fine.²⁴ Under modern doctrine, the double-jeopardy protection has been incorporated against the states.²⁵

Current double-jeopardy jurisprudence addresses five primary issues. Specifically:

Which sovereign’s law applies? The clause protects against “separate prosecutions for the same offense.”²⁶ Because “an ‘offence’ is defined by a law, and each law is defined by a sovereign,” the Supreme Court has held that a defendant may be prosecuted under the laws of separate sovereigns for the same conduct.²⁷ However, this “separate sovereigns” exception has been called into question as against the original understanding of the protection.²⁸ Governments are separate sovereigns under the clause if they derive their power to prosecute “from wholly independent sources.”²⁹ Because the federal government and the states are separate sovereigns, the clause does not prohibit a federal prosecution after a state prosecution,³⁰ and vice versa.³¹ The clause also does not prohibit successive prosecutions by different states.³² But it does prohibit successive prosecutions by the state and a local government within that state or two local governments in the same state, because each derives its sovereignty from a common source—the state constitution.³³ Although Indian tribes are sovereigns, allowing separate prosecutions,³⁴ American territories are not.³⁵

What is the charged “offense”? Modern criminal law is characterized by an “extraordinary proliferation of overlapping and related statutory offenses.”³⁶ Double-jeopardy protection depends on carefully ascertaining what is the “allowable unit of prosecution.”³⁷ Few limits, if any, “are imposed by the Double Jeopardy Clause on the legislative power to define offenses,”³⁸ but once a legislature defines that proscription, courts “determine[] the scope of protection afforded by a prior conviction or acquittal.”³⁹ To ascertain whether two statutory offenses are the same “offense” for double-jeopardy purposes, the Supreme Court has instituted a multi-element test that determines whether each “offense” contains an element that is not common to the other.⁴⁰

When does jeopardy attach? In other words, how much of a trial has to occur before a new prosecution becomes impermissible?⁴¹ Jeopardy attaches in a bench trial when the first witness is sworn; it attaches in a jury trial when the jury is sworn.⁴² An acquittal—a decision of not guilty on the facts—ends the trial.⁴³ Whether there is an acquittal turns on whether there is a verdict that the prosecution failed to establish criminal liability.⁴⁴ Such a verdict—if accepted by the court—is an acquittal even if it is inconsistent with other verdicts.⁴⁵

What punishment is covered? A sanction only counts for double-jeopardy purposes if it is a criminal “punishment.”⁴⁶ Generally, whether a sanction qualifies depends on the governing statute.⁴⁷ In other words, the statute must define a punitive measure as the punishment for a crime for the sanction to fall under the clause; accordingly, not every punitive measure qualifies. For example, the government may seize property used in furtherance of criminal activity (a process called civil forfeiture) even if the defendant has been prosecuted for—and acquitted of—the same conduct that is the basis for the civil forfeiture.⁴⁸ It may do so because Congress has authorized parallel civil forfeiture and criminal prosecutions since the Founding, and civil forfeiture proceeds against the property at issue (because of its role in the criminal conduct), not the individual who used it.⁴⁹ By contrast, the government may not specially tax criminal conduct and also prosecute a person for that conduct, because the aim of the tax is purely to punish, not to raise revenue.⁵⁰ Because the taxed conduct “is completely forbidden,” the tax is another means of criminalizing the same activity that the criminal statute criminalizes, so the government may not bring a proceeding to collect the tax after bringing a prosecution; otherwise, it would violate the clause.⁵¹

When is a retrial allowed? The clause does not absolutely prohibit retrials.⁵² Retrial is generally permissible when a trial terminates for reasons unrelated to the defendant’s criminal culpability.⁵³ A retrial is permissible when a defendant requests a mistrial or when there is a “manifest necessity.”⁵⁴ A manifest necessity exists, for example, if the jury deadlocks or is unduly influenced by defense counsel’s misconduct.⁵⁵ A defendant who successfully appeals his conviction for a lesser charge (such as manslaughter) cannot be retried on a greater charge (such as murder).⁵⁶ A new trial is not permitted when a defendant successfully challenges his conviction for insufficient evidence; this appellate victory operates as an acquittal.⁵⁷ But a new trial is permitted when an appellate court reverses a conviction for improper venue because the reversal did not resolve criminal culpability.⁵⁸

Open Questions

• Denezpi v. United States (2022) held that the clause allowed the same sovereign—the federal government—to prosecute a defendant for violating federal law after it prosecuted him for violating tribal law.⁵⁹ What are the implications of this decision?
• Given the increased attention paid to civil forfeiture in recent years, will the Court revisit the line between civil and criminal punishments?
• Because there is evidence that the original double-jeopardy protection applied only to capital offenses, will the Court revisit Ex parte Lange (1873), which held that the clause applied to all offenses?⁶⁰

1. Benton v. Maryland, 395 U.S. 784, 795 (1969); David S. Rudstein, A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy, 14 Wm. & Mary Bill Rts. J. 193, 196–204 (2005). ↩︎
2. 4 Blackstone 335. ↩︎
3. United States v. Scott, 437 U.S. 82, 87 (1978). ↩︎
4. Stephen N. Limbaugh, Jr., The Case of Ex Parte Lange (or How the Double Jeopardy Clause Lost Its “Life or Limb”), 36 Am. Crim. L. Rev. 53, 63–64 (1999). ↩︎
5. Rudstein, supra at 221–22. ↩︎
6. Id. at 223–25. ↩︎
7. Arthur P. Scott, Criminal Law in Colonial Virginia 81–82 (1930). ↩︎
8. Rudstein, supra at 223–24. ↩︎
9. Id. at 224. ↩︎
10. Id. at 223; N.H. Const. of 1784, pt. 1, art. XVI. ↩︎
11. Rudstein, supra at 223. ↩︎
12. Storing 2.9.171. ↩︎
13. Address of the Antifederalist Minority of the Maryland Convention (May 1, 1788), in 12 DHRC 659, 665. ↩︎
14. N.Y. Decl. of Rts., Form of Ratification, and Recommendatory Amendments to the Constitution (July 26, 1788), in 23 DHRC 2326, 2327. ↩︎
15. 1 Annals of Cong. 781–82 (1789); id. at 451–52. ↩︎
16. N. Bailey, Dictionarium Britannicum (2d ed. 1736); 2 Richard Burn & John Burn, A New Law Dictionary 167 (1792). ↩︎
17. 1 Annals of Cong., supra at 781–82. ↩︎
18. Id. at 782. ↩︎
19. Id. ↩︎
20. Id. ↩︎
21. S. Jour., 1st Cong., 1st Sess. 71, 77 (Sept. 4 & 11, 1789); Rudstein, supra at 230–32. ↩︎
22. Monge v. California, 524 U.S. 721, 727–28 (1998). ↩︎
23. Limbaugh, supra at 65–66. ↩︎
24. Ex parte Lange, 85 U.S. (18 Wall.) 163, 168–73 (1873); Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L.J. 1807, 1810–12 (1997). ↩︎
25. Benton, 395 U.S. at 787. ↩︎
26. Denezpi v. United States, 596 U.S. 591, 594 (2022). ↩︎
27. Gamble v. United States, 587 U.S. 678, 683–84 (2019). ↩︎
28. Id. at 745–53 (Gorsuch, J., dissenting). ↩︎
29. Puerto Rico v. Sanchez Valle, 579 U.S. 59, 68 (2016). ↩︎
30. Gamble, 587 U.S. at 687–90. ↩︎
31. Bartkus v. Illinois, 359 U.S. 121, 132 (1959). ↩︎
32. Heath v. Alabama, 474 U.S. 82, 88 (1985). ↩︎
33. Waller v. Florida, 397 U.S. 387, 393 (1970). ↩︎
34. Denezpi, 596 U.S. at 598–99. ↩︎
35. Sanchez Valle, 579 U.S. at 71–73. ↩︎
36. Ashe v. Swenson, 397 U.S. 436, 445 n.10 (1970). ↩︎
37. Sanabria v. United States, 437 U.S. 54, 69–70 (1978). ↩︎
38. Id. at 69. ↩︎
39. Id. at 70. ↩︎
40. Blockburger v. United States, 284 U.S. 299, 304 (1932). ↩︎
41. United States v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977). ↩︎
42. Serfass v. United States, 420 U.S. 377, 388 (1975). ↩︎
43. Fong Foo v. United States, 369 U.S. 141, 143 (1962); Smith v. Massachusetts, 543 U.S. 462, 467 (2005). ↩︎
44. McElrath v. Georgia, 601 U.S. 87, 96 (2024). ↩︎
45. Id. at 97. ↩︎
46. Hudson v. United States, 522 U.S. 93, 98–99 (1997). ↩︎
47. Id. at 99–100. ↩︎
48. United States v. Ursery, 518 U.S. 267, 287–88 (1996). ↩︎
49. Id. at 274–75. ↩︎
50. Dep’t of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 781–83 (1994). ↩︎
51. Id. at 778, 782. ↩︎
52. Oregon v. Kennedy, 456 U.S. 667, 671–73 (1982). ↩︎
53. Smith v. United States, 599 U.S. 236, 252–54 (2023). ↩︎
54. Kennedy, 456 U.S. at 671–73; United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). ↩︎
55. Arizona v. Washington, 434 U.S. 497, 509–10 (1978). ↩︎
56. Price v. Georgia, 398 U.S. 323, 326–27 (1970). ↩︎
57. Burks v. United States, 437 U.S. 1, 18 (1978). ↩︎
58. Smith, 599 U.S. at 253–54. ↩︎
59. 596 U.S. at 615–16 (Gorsuch, J., dissenting). ↩︎
60. Limbaugh, supra at 66–68. ↩︎