The case of Ex parte Lange (or how the Double Jeopardy Clause lost its 'life or limb').

• Author: Limbaugh, Stephen N., Jr.

1. INTRODUCTION

   The familiar phrase "jeopardy of life or limb" had a literal, real, immediate, and probably terrifying meaning to the Founding Fathers, especially to those bold enough to sign the Declaration of Independence or to fight in the Revolution. Should any of them have been caught, prosecuted, and convicted of this high treason, the punishment, according to the venerable Blackstone, was:

   1. That the offender be drawn to the gallows, and not be carried or walk.... 2. That he be hanged by the neck, and then cut down alive. 3. That his entrails be taken out and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposable.(1) Had any of the offenders been women, their punishment would have been, "as the natural modesty of the sex forbids the expo[s]ing and publicly mangling their bodies, ... to be drawn to the gallows, and there to be burned alive."(2) Indeed, during the last half of the eighteenth century, in both England and America, the mandatory punishment for nearly all felonies was death,(3) although the gruesome accoutrements of executions for high treason attended only the more serious felonies.(4) It was against this backdrop that the Founding Fathers understood the notion of double jeopardy and crafted a double jeopardy clause conforming to that understanding.(5) For them, to be in "jeopardy of life or limb" meant to be in jeopardy of capital punishment.

   That "life or limb" refers to the most serious punishments should be obvious, of course, from the words themselves without knowledge of the historical context. But the commonly-understood meaning of those words gives no hint of their modern-day, judicially-imposed meaning. Surely there are few, if any, provisions of the Constitution from which the Supreme Court, in its interpretations, has deviated more drastically from the literal terms used at conception. In effect, the qualifying words "of life or limb" have been written out of the Fifth Amendment, and the Clause should now more aptly state, "nor shall any person be subject for the same offense to be twice put in jeopardy of [any punishment]."

   To be sure, in today's jurisprudence, it is taken for granted that the scope of the Double Jeopardy Clause encompasses not just capital punishment, but imprisonment, and fines and punishment of all kinds, for felonies and misdemeanors alike. In fact, the Supreme Court's double jeopardy cases over the past few terms focus on the possibility that even some government-imposed civil sanctions might come within the purview of the Clause. Despite the salutary policy of affording double jeopardy protection for all punishments, it is not plausible to stretch the Double Jeopardy Clause from capital punishment to the minor punishments imposed for misdemeanors, much less for punitive civil sanctions. The stretch can only be made by viewing the words "life or limb" as a term of art, or as one commentator more eloquently stated, as "a single unitary phrase.... whose whole is greater than its parts"--words that are to be read as "poetic notes:" (6) As poetry, in other words, "life or limb" can become a metaphor for all punishment. But this convenient rationalization, as will be explained, disregards the likelihood that the Framers understood double jeopardy not as a broad, general, and evolving concept, but rather as a finite and static rule limited by its own terms.

   The Supreme Court, motivated by policy instead of history, adopted the poetic notes approach in the 1873 case of Ex parte Lange(7) by applying the Double Jeopardy Clause to misdemeanors and misdemeanor punishment, and thus clearing the way for the evolution of double jeopardy law in its current form. Since that time, the Lange opinion has enjoyed nearly unquestioned acceptance and has been zealously defended.(8) Only the Pennsylvania Supreme Court, in a now obscure opinion, has had the gumption to reject outright the Lange interpretation.(9) Noting that Lange was an "extreme view," the court held that the Pennsylvania Constitution's double jeopardy provision--worded identically to its federal counterpart--applied to capital offenses only.(10) Of the few other writers since Lange who at least have acknowledged that the Double Jeopardy Clause as written applied only to felonies and not to misdemeanors, none press the point, probably under the fair assumption that Lange has become too entrenched to bother. Professor Jay A. Sigler's 1969 treatise, Double Jeopardy, is the best example; he states, on one hand, that "[g]enerally, the words of the clause of the fifth amendment which restricts double jeopardy to dangers to `life and limb' have been ignored, and a majority of states have not adopted the original federal rule which restricts double jeopardy to felonies."(11) On the other hand, Professor Sigler then relegates Lange to a simple footnote in support of the proposition.(12)

   Perhaps a more important explanation for the absence of criticism of Lange is that few disagree with the humane and just policy of affording double jeopardy protection for all offenses and punishments. The criticism to be leveled at Lange, however, is not against that policy itself. It is against the notion that the policy, whatever its worth, is grounded in the Constitution.

   For this reason, or if only to consider an unexplored matter of historical curiosity, a challenge to Ex parte Lange is long overdue. The challenge may be brought on several fronts. First, the Court's rationale, as tacitly conceded, depended not on the express words used in the Constitution, but on reasons of policy alone. Second, the Court gave no deference to the state of double jeopardy law as it existed in the late 1700s when it was constitutionalized by the Founders. Third, the Court ignored legislative history showing that Congress rejected earlier, more inclusive versions of the Clause. Fourth, the Court distorted the post-ratification evolution of the doctrine.

   At its core, this challenge to Lange is designed to reassess the meaning of the words "life or limb," not as a doctrinaire exercise in hyperliteralism, but to show that the Framers fully intended to limit double jeopardy protection to capital offenses only and that they had legitimate reasons for doing so. By this account, the words "life or limb" were written not as poetry, but as prose.

2. PARSING THE LANGE COURT'S RATIONALE

   Ex parte Lange was the first case in which the Supreme Court elaborated on the meaning of the Double Jeopardy Clause.(13) The case arose on a petition for writ of habeas corpus filed by Edward Lange claiming that he was unlawfully imprisoned by the marshal of the United States District Court for the Southern District of New York under an order of the United States Circuit Court.(14) Lange had been convicted of a federal misdemeanor, "appropriating to his own use mail-bags [belonging to the Post Office Department], the value of which was less than twenty-five dollars," for which he was sentenced to serve one year of imprisonment and pay a fine of two hundred dollars.(15) Five days after Lange was committed to jail and paid the fine, the district judge, acting on an initial writ of habeas corpus, vacated the judgment on the ground that the punishment exceeded that authorized by law.(16) In sentencing, the judge had apparently overlooked the fact that the federal statute provided for imprisonment of no more than one year or a fine of not less than ten dollars nor more than two hundred dollars.(17) Because the statute was couched in this way, only one or the other of the two punishments could be imposed.(18) The trial court corrected the error by vacating the original sentence and resentencing Lange to one year of imprisonment, but without a fine.(19) To contest the imposition of the second sentence, Lange then filed a second petition for writ of habeas corpus in the circuit court.(20) The petition was denied, and the denial resulted in the entry of the order of imprisonment that, in turn, gave rise to the habeas corpus action before the Supreme Court.(21)

   Having paid the fine of two hundred dollars and having served five days of the original jail sentence, Lange claimed that the district court had no jurisdiction to impose another sentence.(22) On double jeopardy grounds, the Supreme Court agreed, stating, "We are of opinion that when the prisoner, as in this case, by reason of a valid judgment, had fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone."(23) In a vigorous dissent,(24) Justice Clifford pointed to, inter alia, the absurdity of disallowing the second sentence where the double jeopardy concern could be alleviated simply by a refund of the fine paid.(25)

   Although the primary focus of the majority opinion was the propriety of imposing the second sentence in lieu of the first, a threshold issue, decided in the affirmative, was whether the Double Jeopardy Clause applied at all to misdemeanors, and for that matter, to fines imposed for misdemeanors.(26) After ruminating on the virtues of the general proposition "that no man can be twice lawfully punished for the same offence," and describing the different expressions, variations, and applications of that proposition as reflected in the common law,(27) the Court then addressed the Fifth Amendment version with its express reference to "life or limb."(28) The Court began its analysis by citing two well-known commentators. The first, Joel Prentiss Bishop, had acknowledged that "the construction of [the words used in the Constitution] is that properly the rule extends to treason and all felonies, not to misdemeanors."(29) But he had then argued that "practically and wisely the courts have applied it to misdemeanors, and that in view of the liberal construction of statutes and constitutions in favor of persons charged with crime...