Double Jeopardy (Update 2)

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In the 1990s, the Supreme Court decided a number of cases dramatically revising the prevailing interpretation of the Fifth Amendment's double jeopardy clause. These decisions have generally continued the Court's trend of leaving more leeway for state and federal legislatures, as well as prosecutors, to decide how many prosecutions and civil proceedings they will bring to punish a defendant for an act or course of conduct.

On the subject of what constitutes the "same offense" for double jeopardy purposes, a sharply divided Court, only three terms after deciding Grady v. Corbin (1990) on a 5–4 vote, overruled that decision by a similarly split vote in United States v. Dixon (1993) and returned to the older Blockburger definition of "same offense." Instead of defining "offenses" by determining whether two prosecutions are based on the same conduct (as in Grady), courts will now ask only whether each of the two statutes defining the offenses charged contains an element the other does not. Under this test, the Court allowed a defendant to be prosecuted for an assault even though he had already been punished, in a contempt proceeding, for violating a protective order by committing the same assault, as long as the statutes defining the two offenses each required proof of a different additional fact.

Defining when the double jeopardy clause prohibits successive proceedings for the same offense also caused the Court considerable trouble and second thoughts. A person who is convicted of an offense may be subjected to more than one kind of punishment for that offense—both a fine and a prison sentence, for example. But the double jeopardy clause prohibits the government from taking two bites of the apple by bringing multiple proceedings seeking different "punishments" for the same offense, even if one of those proceedings is labeled "civil." United States v. Halper (1989) ruled that the government could not criminally prosecute a person who had already been punished in a "civil" proceeding by a fine so disproportionate to the harm done that it could not be considered "solely remedial." Applying a similar test, a bitterly divided Court in Montana Department of Revenue v. Kurth Ranch (1994) found that a Montana tax for possession and storage of dangerous drugs was "punishment," and that the state was therefore not allowed to impose that fine in a civil proceeding and also bring a separate criminal prosecution (although both penalties could have been leveled in the same proceeding). But applying this same subjective test and distinguishing Halper rather tortuously, the Court two years later concluded that civil forfeiture is not "punishment" for double jeopardy purposes, partly because of its historical pedigree. Because of this conclusion, the defendant in United States v. Ursery (1996) was allowed to be criminally prosecuted for a marijuana offense even though, in an earlier proceeding, the government had forfeited his home and property due to the presence of the same marijuana; and another defendant, in United States v. $405,089.23 (1996), faced a forfeiture proceeding after a separate criminal prosecution even though the government could have sought forfeiture as a penalty originally. Finally, in Hudson v. United States (1998), the Court, split 5–4, disavowed Halper's mode of analysis. Even though a "civil" fine is intended in part as a deterrent, it may still be considered a remedial measure that therefore does not constitute "punishment" within the meaning of the double jeopardy clause, especially if it can be shown that the legislature intended the measure to be a civil penalty. Like the newly restricted definition of "same offense," which frees legislatures from judicial supervision of their decisions about how many offenses may be based on the same conduct, this new, narrowed test allows the government freedom to decide how many proceedings to bring, even when based on the "same offense."

The same split on the Court over the issue of how much leeway legislatures should be allowed reappeared in the area of sentencing. The Court had previously held that double jeopardy protections do not generally attach at sentencing. Applying this maxim expansively, the Court in Witte v. United States (1995) ruled that a defendant may be prosecuted for an offense on the basis of conduct that has already been used as "relevant conduct" at a sentencing proceeding in an earlier prosecution, leading to a substantial increase in that sentence. Taking the theory that sentencing is not governed by the same rules as trial one step further, the Court in United States v. Watts (1996) held that a defendant's sentence may even be enhanced by an allegation on which the jury at his trial had actually acquitted him (because the standard of proof at sentencing is lower).

In the past, the Court had applied double jeopardy principles to capital sentencing in Bullington v. Missouri (1981), holding that the prosecution may not seek the death penalty in a retrial of a defendant who had been given a life sentence on the same charge and then successfully appealed the conviction. But in Schiro v. Farley (1994), the Court allowed a state to proceed to the penalty phase of a capital proceeding even though the jury had implicitly acquitted the defendant of facts the state would be required to prove at the penalty phase in order to sustain a capital sentence. The Court also distinguished Bullington in the noncapital case of Monge v. California (1998), a case brought under a state "three strikes" law where the state had not proven all the facts required by the statute to show that the defendant should have his sentence doubled because he had an eligible earlier conviction. After the enhanced sentence was reversed on appeal for insufficient evidence about the previous conviction, the state was allowed to try again, and to submit proof of the required factors. The Court, split 5–4 once again, held that this relitigation was permissible because it only concerned a sentencing factor in a noncapital case.

One of the few areas of double jeopardy law that has caused no dissension on the Court has been one of the most controversial in other arenas. Although the Court has never overruled or even questioned the dual sovereignty doctrine, the successive state and federal prosecutions of the Los Angeles police officers who were videotaped beating Rodney King provoked a new flurry of academic and public debate about whether the Court's interpretation of the double jeopardy clause is more formalistic than fair. Scholarly opposition to the doctrine, from academics writing from a wide range of perspectives (from civil libertarians to adherents of originalism), continued to be overwhelming. The officers' conviction in federal court, following their acquittal in state court, convinced many observers of the truth of one of the double jeopardy clause's central tenets—prosecutorial practice makes perfect.

Susan N. Herman


Amar, Akhil Reed and Marcus, Jonathan 1995 Double Jeopardy Law After Rodney King. Columbia Law Review 95:1–59.

Herman, Susan N. 1995 Reconstructing the Bill of Rights: A Reply to Amar and Marcus's Triple Play on Double Jeopardy. Columbia Law Review 95:1090–1111.

Symposium 1994 The Rodney King Trials: Civil Rights Prosecutions and Double Jeopardy. UCLA Law Review 41:509–720.

Thomas, George C., III 1998 Double Jeopardy: The History, the Law. New York: New York University Press.