CHAPTER 14 DOUBLE JEOPARDY

• Jurisdiction: United States

Chapter 14 DOUBLE JEOPARDY

§ 14.01 GENERAL PRINCIPLES¹

[A] Constitutional Text

[1] In General

The Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." This provision, the so-called "Double Jeopardy Clause," has roots in Greek and Roman law, as well as in English canon and common law.² The concept of double jeopardy "although not universal, is part of Western legal heritage, explicitly enshrined in the law of many countries."³ The double jeopardy prohibition is a fundamental right applicable to the states through the Fourteenth Amendment Due Process Clause.⁴

[2] "In Jeopardy"

For double jeopardy purposes, a person is not "in jeopardy" of life or limb until the jury is empaneled and sworn⁵ or, in a bench trial, until the first witness is sworn.⁶ Consequently, the prosecutor is not constitutionally barred from appealing a pretrial dismissal of criminal charges against a defendant or from refiling charges against him, even if the dismissal was based on the evidence that would have been introduced at trial.⁷

[3] "Of Life or Limb"

[a] Generally

The Fifth Amendment provides that a defendant may not be twice placed in jeopardy "of life or limb" for the "same offence."⁸ Notwithstanding this life-or-limb language, the Court long ago held that the Double Jeopardy Clause applies to all crimes, including those offenses for which the only potential punishment is a monetary fine.⁹

[b] Civil versus Criminal Proceedings and Penalties¹⁰

A legislature "may impose both a criminal and a civil sanction in respect to the same act or omission; for the Double Jeopardy Clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense."¹¹ Therefore, D may be subjected to a civil suit, and a civil sanction imposed on him, even if he was previously criminally prosecuted and punished for the same conduct.

This does not mean, however, that the government may escape the dictates of the Fifth Amendment merely by denominating a proceeding as "civil." For example, the Supreme Court ruled in Breed v. Jones¹² that a youth may not be prosecuted in a criminal court for conduct that was the basis of a previous juvenile court proceeding because — notwithstanding "the 'civil' label-of-convenience which has been attached to juvenile proceedings" — a finding of delinquency can result in the youth's loss of liberty and stigmatization, consequences similar to a criminal conviction.

As might be expected, the Supreme Court and lower courts have struggled drawing a line between civil and criminal proceedings and, most especially, between civil and criminal penalties for purposes of the Double Jeopardy Clause. In Hudson v. United States,¹³ the Supreme Court announced a two-step approach to the question. According to Hudson, "[w]hether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction." The first question, therefore, is "whether the legislature 'in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.' "¹⁴

Even if a legislature labels a penalty "civil," Hudson provides that a court must inquire " 'whether the statutory scheme was so punitive either in purpose or effect' as to 'transform what was clearly intended as a civil remedy into a criminal penalty.' " How does a court make this second determination? The Hudson Court referred to the factors — the "useful guideposts" — for drawing a constitutional line between civil and criminal factors listed in Kennedy v. Mendoza-Martinez:¹⁵

[1] Whether the sanction involves an affirmative disability or restraint; [2] whether it has historically been regarded as a punishment; [3] whether it comes into play only on a finding of scienter; [4] whether its operation will promote the traditional aims of punishment — retribution and deterrence; [5] whether the behavior to which it applies is already a crime; [6] whether an alternative purpose to which it may rationally be connected is assignable for it; and [7] whether it appears excessive in relation to the alternative purpose assigned.

The Hudson Court warned that "these factors must be considered in relation to the statute on its face" and that " 'only the clearest proof' will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." In light of this language in Hudson, there will rarely be a case in which imposition of a monetary penalty will bar a later criminal prosecution on the basis of double jeopardy.¹⁶ For example, in Hudson, the Court held that the Double Jeopardy Clause did not bar the government from, first, imposing monetary penalties on defendants for violating federal banking statutes and, later, prosecuting them for essentially the same conduct. The penalties were expressly denominated as civil (the first step of the analysis); and, taking the second step and considering the "guideposts" listed above, the Court found "little evidence, much less the clearest proof" that the penalties were "punitive in form and effect."

The Supreme Court has also made it nearly impossible to contest civil forfeitures on the basis of double jeopardy. In United States v. Ursery¹⁷ the Court ruled that the federal government could punish a defendant in a criminal proceeding for committing a drug offense and then require him in a civil proceeding to forfeit assets linked to the drug crime. The Ursery Court observed that "[s]ince the earliest years of this Nation, Congress has authorized the Government to seek parallel in rem civil forfeiture actions and criminal prosecutions based upon the same underlying events." Indeed, numerous federal and state laws permit an individual to be prosecuted for a criminal offense and, simultaneously or after the criminal trial, have real or personal property linked to the criminal conduct subjected to civil forfeiture. The Ursery Court stated that "in a long line of cases, this Court has considered the application of the Double Jeopardy Clause to civil forfeitures, consistently concluding that the Clause does not apply to such actions because they do not impose punishment."

Ursery did not categorically rule out the possibility that a civil forefiture could be deemed penal. The Court stated in a footnote:

That a forfeiture is designated as civil by Congress [or a state] and proceeds in rem establishes a presumption that it is not subject to double jeopardy. . . . Nevertheless, where the "clearest proof" indicates that an in rem civil forfeiture is "so punitive either in purpose or effect" as to be equivalent to a criminal proceeding, that forfeiture may be subject to the Double Jeopardy Clause.¹⁸

Such clear proof was not present in Ursery.¹⁹ The Court pointed to various nonpunitive purposes of the drug forfeiture law: to encourage "property owners to take care in managing their property," to guarantee that property will not be used for illegal purposes, and to ensure that law violators do not profit from their misdeeds. These criteria, of course, would justify nearly any civil forfeiture scheme.

[B] "Dual Sovereignty" Doctrine²⁰

Criminal conduct frequently violates both federal and state statutes. For example, the unprovoked act of D striking V, a federal officer, constitutes the federal offense of assault upon a federal officer,²¹ and a state offense, such as simple assault or battery. Or, taking the example of the police beating of Rodney King in Los Angeles,²² the actions of those officers were chargeable as the state offenses of assault with a deadly weapon and excessive use of force by a police officer, and as the federal crime of violating King's constitutional rights.²³ Robbery of a federally insured bank — which is virtually any bank today — also constitutes a violation of both state and federal law.

Likewise, a single act may constitute a violation of criminal statutes in more than one state. For example, if D, while standing in state X, shoots and kills V, who is standing across the border in state Y, both states may claim jurisdiction to prosecute the homicide. Or, a multijurisdictional conspiracy could easily violate conspiracy laws in multiple states.

The same conduct may also simultaneously violate a state law and a local ordinance. For example, if D steals a painting attached to a wall in a city building, this act may constitute theft under state law and larceny of city property under a local ordinance.

In United States v. Lanza,²⁴ the Supreme Court announced the dual sovereignty doctrine, which provides that "an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be [prosecuted and] punished by each." In effect, prosecutions under laws of separate sovereigns are prosecutions of different offenses, not reprosecutions of the "same offense." Therefore, it is permissible for the federal government to prosecute a defendant after a state prosecution of the same conduct,²⁵ or vice-versa,²⁶ regardless of the outcome of the first prosecution.

The doctrine applies as well to dual state prosecutions. For example, D may be prosecuted for a single homicide in states X and Y, assuming that both states have adequate ties to the event to claim jurisdiction. The Fifth Amendment is not violated in such circumstances, even in the extreme case that the second prosecution is brought to secure the death penalty after the defendant received a lesser penalty for the same homicide in another state.²⁷

However, a city is considered a subordinate instrumentality of the state in which it is located. Therefore, it is not an independent sovereign for purposes of the Double Jeopardy Clause. Consequently, successive municipality and state prosecutions for the same offense ordinarily are barred.

The dual sovereignty doctrine is controversial. From a policy perspective, the doctrine may be...