Rethinking Ashe v. Swenson from an Originalist Perspective.

• Author: DeMott, Joseph J.
• Position: NOTE

Table of Contents Introduction I. Modern Double Jeopardy Doctrine A. The Blockburger Test B. Issue Preclusion II. The Original Guarantee Against Double Jeopardy III. The Common Law Understanding of "Same Offence" A. Legal Identity of the Offenses 1. An elements-based test 2. Relevant common law procedures B. Factual Identity of the Offenses IV. Assessing Ashe from an Originalist Perspective A. The Court's Three Competing Approaches B. The Common Law Approach V. Translating the Common Law Understanding into Modern Doctrine A. Originalist Theories of Translation B. Translating the Test for Legal Identity C. Translating the Test for Factual Identity 1. An expected-applications approach 2. A judicial deference approach 3. A principle-based approach VI. Comparing the New Originalist Approach with Existing Doctrine Conclusion Introduction

Early one morning in January 1960, six men were playing "a friendly game of poker" in the basement of a private home in Lee's Summit, Missouri. (1) Suddenly, a group of armed criminals broke into the house. (2) They made their way to the basement, "robbed each of the poker players of money and various articles of personal property," and then "fled in a car belonging to one of the victims." (3) Bob Ashe, along with three other suspects, was later arrested and charged with six counts of first-degree robbery-one for each poker player--as well as one count of auto theft. (4)

The State decided to prosecute each charge separately. First, it put Ashe on trial for robbing just one of the poker players, a man named Knight. (5) The court instructed the jury to convict Ashe if it determined that he had been "one of the robbers, ... even if he had not personally robbed Knight." (6) The jury returned an acquittal. (7) Six weeks later, the State put Ashe on trial for robbing another one of the poker players, Roberts. (8) This time, the jury concluded that Ashe had been one of the robbers. He was convicted and sentenced to thirty-five years in prison. (9)

After exhausting his state court appeals, Ashe filed a petition for habeas corpus claiming that the State had violated the Double Jeopardy Clause by subjecting him to successive trials for what was in essence "the same offence." (10) In an opinion by then-Judge Blackmun, the Eighth Circuit affirmed Ashe's conviction. (11) The U.S. Supreme Court reversed, however, holding in Ashe v. Swenson that the Double Jeopardy Clause barred the State from relitigating the issue of Ashe's involvement in the robbery at the second trial. (12) Thus, Ashe stands for the proposition that issue preclusion is part of the constitutional guarantee against double jeopardy. (13)

In recent years, several Justices have criticized Ashe on originalist grounds. In (2009), Justice Scalia's dissenting opinion in Yeager v. United States--joined by Justices Thomas and Alito--declared that "[i]n Ashe, the Court departed from the original meaning of the Double Jeopardy Clause." (14) Although Justice Scalia noted the possibility of "adher[ing] to Ashe on stare decisis grounds," (15) he vehemently opposed extending its holding. (16) In (2016), Justice Thomas went further, urging his colleagues to "reconsider the holding[] of Ashe" in "an appropriate case." (17) And just last Term, Justice Gorsuch's opinion for the Court in Currier v. Virginia called Ashe "a significant innovation" in the Court's double jeopardy jurisprudence and suggested that "it sits uneasily with ... the Constitution's original meaning." (18)

Beyond these Justices' expressions of skepticism, there has been little scholarly exploration of whether the issue preclusion doctrine announced in Ashe can be squared with the original understanding of the Double Jeopardy Clause. The major historical accounts of double jeopardy law include some relevant discussion but do not assess the doctrine's originalist bona fides. (19) And the few scholars who have considered the question disagree about the answer. George Thomas has asserted that issue preclusion is "implicit in the same-offense language of the Double Jeopardy Clause/' (20) but cites no Founding-era sources in support of that view. (21) Akhil Amar has disagreed, arguing that the doctrine "cannot easily be crammed into the Double Jeopardy Clause in light of the syntax, grammar, purpose, and history of the Clause," and should instead be rooted in due process. (22) David Zlotnick has taken a third position, claiming that Ashe is totally indefensible on originalist grounds because "[s]uccessive prosecutions based on different victims of one criminal event were permissible at common law." (23) But none of these scholars devotes more than a few sentences to the question or seriously engages with the historical evidence. Thus, the scholarly literature lacks an in-depth analysis of whether Ashe can be justified on originalist grounds.

This Note provides that analysis. Part I gives a brief overview of modern double jeopardy doctrine. Part II explains that in 1791, when the Bill of Rights was ratified, the Double Jeopardy Clause was understood to guarantee a preexisting common law right. Part III describes the content of that right. In eighteenth-century England, a defendant who had already stood trial on a particular charge could bar a subsequent prosecution by demonstrating two things. First, he had to show that the formal elements of the two charges overlapped such that he could have been convicted of the new charge at the initial trial. And second, he had to show that the two indictments described the same factual incident.

Part IV compares this common law approach with the three positions set forth in Ashe--Justice Stewart's majority opinion, Justice Brennan's concurrence, and Chief Justice Burger's dissent. It concludes that none of them accurately reflects the content of the common law right. It then makes the case that all seven of the charges against Ashe would have been treated as the "same offence" at common law. Part V considers how different brands of originalism might translate the common law understanding of double jeopardy into modern doctrine. After considering and rejecting two potential alternatives, it settles on the rule that where two charges are (1) legally identical and (2) arise from a single incident, the Double Jeopardy Clause requires them to be resolved in a single proceeding. Part VI considers the pros and cons of this originalist rule and compares it with current Supreme Court doctrine. This Note concludes that the judgment in Ashe, though not the issue preclusion rationale on which it rests, can be justified on originalist grounds.

1. Modern Double Jeopardy Doctrine

   The Double Jeopardy Clause states that "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." (24) Current U.S. Supreme Court doctrine contains two distinct tests for determining whether the Clause permits a defendant who has received a final judgment on one charge to be subsequently tried for a similar charge.

   1. The Blockburger Test

      The primary test for whether two crimes constitute "the same offence" for double jeopardy purposes is named after Blockburger v. United States (25) It requires a court considering the claim that a prosecution is barred by double jeopardy to compare the formal elements of the previously adjudicated offense with those of the newly charged offense. (26) Under Blockburger, greater and lesser included offenses are always "the same offence." (27) In other words, "[t]wo offenses are different, for double jeopardy purposes, whenever each contains an element that the other does not." (28)

      As an illustration, consider the crimes of joyriding and auto theft (as defined by Ohio law in 1973). Joyriding was defined as "taking or operating a vehicle without the owner's consent." (29) Auto theft was defined as joyriding plus one additional element--"the intent permanently to deprive the owner of possession." (30) Because joyriding contains no elements that auto theft does not, it is a lesser included offense of auto theft. (31) Therefore, the two crimes are "the same offence" under Blockburger.

      In contrast, consider the following pair of gun possession laws. Under 18 U.S.C. [section] 922(g), it is unlawful to (1) possess a firearm affecting interstate commerce (2) after having been convicted of a felony. (32) It is also unlawful under [section] 922(q)(2)(A) to (1) possess a firearm affecting interstate commerce (2) in a school zone. (33) Although the two crimes share the element of firearm possession, they are not the "same offence" under Blockburger because each contains an element that the other lacks. Thus, if a convicted felon is found carrying a gun in a school zone and tried under the felon in possession provision, the Double Jeopardy Clause would not bar a subsequent trial under the school zone provision.

   2. Issue Preclusion

      In addition to the Blockburger test, modern double jeopardy law includes the doctrine of issue preclusion, (34) also known as collateral estoppel. (35) Issue preclusion has a long history as a civil litigation doctrine. (36) In the civil context, it prevents a party from relitigating an issue that a court has "determined by a valid and final judgment," provided that the party "actually litigated" the issue in the prior proceeding and that it was "essential to the judgment." (37) By the 1940s, if not earlier, issue preclusion had also become part of federal criminal law, (38) and the 1970 decision in Ashe held that it was a constitutional requirement. (39) In its criminal law form, issue preclusion works only against the prosecution, which it prevents from "relitigating any issue that was necessarily decided [in the defendant's favor] by a jury's acquittal in a prior trial." (40)

      As an illustration, consider Turner v. Arkansas, which involved a murder that occurred during a robbery. (41) Turner was initially tried for murder. (42) The prosecution argued that Turner had shot and killed...