Double jeopardy law made simple.

• Author: Amar, Akhil Reed

"[N]or shall any person be subject for the same offence to be twice

put in jeopardy of life or limb ...."(1)

Modern Supreme Court case law is full of double jeopardy double talk. Consider first the poetic phrase "life or limb." It seems sensible enough to read these words as a grim and graphic metaphor for criminal sanctions--and such an approach runs deep in American case law, to say nothing of English literature. This reading also makes the most sense of the precise location of the Fifth Amendment Double Jeopardy Clause, wedged as it is between two other provisions--the Grand Jury and Self-Incrimination Clauses--that apply only to criminal offenses. But can "life or limb" be stretched to encompass some civil suits involving only money? Today's Supreme Court seems to think so,(2) but how can this be squared with the text and structure of the Fifth Amendment? The Fifth Amendment Due Process Clause clearly applies to civil cases, but isn't its "life, liberty, or property" language obviously contradistinguished from the more narrow "life or limb" language of the Fifth Amendment Double Jeopardy Clause?

Consider next a far more egregious example of modern double jeopardy double talk. The Double Jeopardy Clause speaks of the "same" offense, and yet the Court casually applies the Clause to offenses that are not the same but obviously different. Premeditated murder is not the same as attempted murder or manslaughter; armed robbery is not the same as robbery; and yet under the so-called Blockburger test, the Court generally treats a greater offense as the same as each of its logically lesser-included offenses.(3) But on rare occasions, the Court rejects this test and reminds us that "[q]uite obviously the [greater] offense is not, in any common-sense or literal meaning of the term, the `same' offense as one of [its lesser-included] offenses."(4) How can we make sense of all this?

Finally, consider the question of precisely when "jeopardy" attaches. The modern Court claims that once the jury is sworn, a defendant is in "jeopardy."(5) Thus, defendant A cannot be tried a second time if, say, her first jury is dismissed because of gross prosecutorial misconduct. But if defendant B's first jury is dismissed for some other reason--because it cannot reach a unanimous verdict or because some jurors fall ill during trial--then B can indeed be tried again.(6) Why, on the Court's premises, doesn't such a retrial likewise place a person twice in jeopardy--and for the identical offense--in obvious violation of the bright-line rule of the Clause? And if a person is simply not "in jeopardy" until his jury is sworn, does this mean that if defendant C has won an acquittal in a fair and suitably error-free trial, C may nonetheless be reindicted for the same offense and held in pretrial detention until a second jury is sworn? If not--if jeopardy really attaches upon C's second indictment itself--does this mean that when a good faith prosecutor dismisses defendant D's first indictment pretrial, then the government is forever barred from bringing a new indictment on the same offense against D (based, say, on new evidence)?

Modern Supreme Court case law is also full of double jeopardy double takes. For example, in the 1975 Jenkins case,(7) the Court, per Justice Rehnquist, promulgated a double jeopardy test for identifying which erroneous trial court dismissals could be appealed by the government, reversed on appeal, and remanded for proper retrial.(8) But in the 1978 Scott case,(9) the Court, per Justice Rehnquist, explicitly overruled the 1975 Jenkins case and promulgated a new test.(10) (As we shall see, this new test is also flawed(11)--but never mind that for now.) Another example: In the 1990 Corbin case,(12) the Court, by a five-to-four vote, laid down a general test for identifying which formally different offenses should be treated as the "same" for double jeopardy purposes.(13) But in the 1993 Dixon case,(14) the Court, by a five-to-four vote, explicitly overruled the 1990 Corbin case.(15) And yet in the 1994 Kurth Ranch case,(16) the Court, by a five-to-four vote, ignored the 1993 Dixon test without explanation, and seemed sub silentio to apply some version of the overruled 1990 Corbin test.(17) As the modern Court itself has noted, "the decisional law in [the double jeopardy] area is a veritable Saragasso Sea which could not fail to challenge the most intrepid judicial navigator."(18)

What, in the end, are we to make of all this double jeopardy double talk, of all these double jeopardy double takes? In this Essay, I will suggest that the Double Jeopardy Clause is in fact rather simple and easy to apply. "Life or limb" connotes all criminal sanctions but never covers a mere civil suit about money. "Same offense" means just that--murder means murder, not attempted murder. And "jeopardy" begins with an indictment and ends with a suitably error-free verdict. However, the Double Jeopardy Clause itself does not exhaust the scope of constitutional principle involved in multiple prosecution and multiple punishment cases. Rather, the clean and simple rules of the Double Jeopardy Clause must be supplemented by several broader but more flexible commonsense principles protected by the Due Process Clause--and by certain other rules and principles rooted in the Sixth Amendment Jury Trial Clause. Rhetorically, the Court has tied itself into knots because it has failed to carefully disentangle the Double Jeopardy, Due Process, and Jury Trial Clauses. As a result, some defendants today are getting windfalls--needless and dangerous "get out of jail free" cards--while other defendants are getting less than they constitutionally deserve. Lawmakers, lawyers, citizens, and the Justices themselves are deprived of a clear account of exactly what the Constitution says, where, and why.

In this Essay, I seek to provide such an account.(19)

1. "LIFE OR LIMB"

   Before we analyze in detail the precise meaning of the double jeopardy rule, let us consider its scope, its domain: What proceedings are covered by the rule? A hyperliteralist might insist that the Clause applies only to cases where the threatened punishment involves death or dismemberment--"life" or "limb." Although Justice Joseph Story once came close to saying as much on circuit to wriggle out of a tight spot,(20) the Supreme Court rejected this gambit long ago in Ex Parte Lange,(21) holding that the Clause applies to all criminal cases.(22) "[A]t the time this [double jeopardy] maxim came into existence," explained the Lange Court, "almost every offence was punished with death or other punishment touching the person."(23) And so the phrase "life or limb" should be understood as a vivid and poetic metaphor for all criminal punishment.

   "A vivid and poetic metaphor?" our hyperliteralist might sneer. "In the Constitution? What about plain meaning?" Yes, I would respond, what about it? Surely the nuances of words and phrases are part of their plain meaning. The obviously alliterative, monosyllabic coupling of two good Old English words in the "life or limb" clause; their tethering to another fine poetic word, "jeopardy" (deriving from the French jeu-perdre, a "game" that one might "lose," and the Middle English iuparti, an uncertain game);(24) and the prominence of the unitary phrase "life or limb" in poetic and literary texts stretching back at least 500 years before the Bill of Rights(25)--all this is part of the plain meaning of the phrase. The hyperliteralist tries to play divide and conquer, splitting one phrase into two parts--"life" or "limb"--but in fact, the plain meaning yokes these words together in a single unitary phrase, "life or limb," whose whole is greater than its parts. Fidelity to constitutional text requires that we pay close heed to what the Constitution is trying to tell us; and to miss all the poetic notes here is to be not faithful, but tone-deaf. (Not literally tone-deaf, of course, but metaphorically--that's the point.)

   Since words are sometimes used rather literally, and other times more metaphorically, faithful textualism must also attend to the apparent purpose and logic of a given clause. To me at least, it is hard to see why the double jeopardy principle should apply when the state wants to chop off my toes, but not when it seeks to slit my nose, or brand my skin, or gouge my ears, or flay my back. (All these, of course, were actual punishments meted out in seventeenth-century England.)(26) These are punishments that, to borrow from Lange, quite literally "touch[ ] the person";(27) and these are "games" that the government should not be able to keep playing until it wins. Imprisonment may not literally deprive me of my limbs, but chains and bars do deprive me of free use of my limbs--and so here too it seems that the spirit and purpose of the Clause obviously apply.

   Nor is any of this mere special pleading on behalf of a pet clause. Consider, for example, the outlandish results that hyperliteralism would seem to demand elsewhere in the Constitution. Shall we say that because Article I addresses only "land and naval Forces"--"Armies" and "a Navy"(28)--that the Air Force is unconstitutional? Or that photographs can never receive copyright protection because the Copyright Clause speaks only of "Authors" and "Writings"?(29) Or that a handwritten private letter lacks all First Amendment protection because it is neither an oral "speech" nor the product of a printing "press"?(30) Or that a defendant may not subpoena and introduce reliable physical evidence that proves his innocence because the Sixth Amendment gives him only a right to compel the production of "witnesses" in his favor?(31)

   But once we go beyond literal lives and limbs, where shall we stop? Were the Double Jeopardy Clause freestanding, I would think its life or limb imagery should obviously apply to imprisonment and all serious criminal punishments and should probably apply to petty criminal...