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Legal Features

'Double Jeopardy' Protection

By Jack King
From The Freelance Star

How many times can a prosecutor haul you into court and put you on trial for the same traffic ticket? Until he wins?

How much punishment is enough?

What did the Framers of our Constitution mean when they said that no person could be twice put "in jeopardy of life or limb"?

Such was the fervor to break from England and create a wholly new kind of representative government, the Colonists were willing to risk being drawn and quartered. The penalty for treason was explicitly spelled out in Blackstone's Commentaries on the Laws of England, which was the Bible of every Colonial lawyer and judge:

1. That the offender be drawn (dragged) 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 disposal.

The words "life or limb," then, meant just what they say. Punishments were often gruesome. When the Constitutional Convention met in Philadelphia in the summer of 1787, the new states still adhered to the laws of England as they had stood on July 4, 1776. Almost all felonies still carried the death penalty, and it is easy to believe that the drafters meant literally that no person ought to "be twice put in jeopardy of life or limb" for the same crime.

That proposal became known as the Double Jeopardy Clause, and it is found in the Fifth Amendment to the U.S. Constitution - within our Bill of Rights.

But the clause has come to mean more - so much more that the U.S. Supreme Court has revisited it time and time again. As then-Associate Justice William Rehnquist observed more than two decades ago, "While the Clause itself simply states that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb,' the decisional law in the area is a veritable Sargasso Sea," challenging "the most intrepid judicial navigator."

But underlying the myriad interpretations of the clause are its three basic prohibitions:

It protects against a second prosecution for the same offense after acquittal.

It protects against a second prosecution for the same offense after conviction.

And, perhaps most important, it protects against multiple punishments for the same crime.

Common law had established that a person could not be tried twice for the same crime. If the first trial ended in acquittal, the plea autrefois acquit - already acquitted - would bar a second indictment. Likewise, if the first trial ended in a conviction, the plea autrefois convict barred a second prosecution. What the Framers did was make these common-law pleadings an irrevocable constitutional right.

It follows that if a person can be tried only once for a crime, he can be punished only once for it also. In the days when the usual sentence for a felony was hanging, the problem of a convict being punished twice did not often arise. But the concept existed in common law, probably for misdemeanors, which were often punished by fine or forfeiture.

Long before the Revolutionary War, the prohibition against double punishment was summed up in Lord Coke's maxim "Nemo debet bis puniri pro uno delicto" ("No one can be twice punished for the same crime").

Nearly a century after the Constitutional Convention, the Supreme Court declared the prohibition against double punishment a constitutional right deriving from the Fifth Amendment. In an 1873 case, Ex Parte Lange, the high court heard the case of a man who had been convicted of the petty offense of stealing some empty U.S. mailbags for his own use (a federal misdemeanor).

The federal theft statute prescribed a punishment of up to a year imprisonment or a fine of up to $200. The judge sentenced Lange to a year in jail and a $200 fine.

The "or" turned out to be important. Lange paid his fine and was taken into custody by the U.S. marshal, only to immediately file for a writ of habeas corpus declaring that, having paid the fine, he was being held unlawfully.

The court agreed, stating, "It is very clearly the spirit of the (Double Jeopardy Clause) to prevent a second punishment under judicial proceedings for the same crime, so far as the common law gave that protection" - emphasizing the word spirit. Ex Parte Lange was also the first Supreme Court case that explicitly held that the Double Jeopardy Clause covers misdemeanors.

It was not until 1969 that the Supreme Court found it necessary to hold that the Fifth Amendment's Double Jeopardy Clause applied also to the states through the 14th Amendment. John Benton was convicted at trial of burglary but acquitted of larceny by the jury. He appealed and won a new trial - at which he was convicted of both the burglary and the same larceny for which he had once been acquitted.

In Benton v. Maryland, the Supreme Court reversed Benton's larceny conviction, holding that he could not be tried a second time for a crime for which he had been found not guilty. In ruling thus, the court held that the Fifth Amendment's Double Jeopardy Clause applied to state crimes also.

As we celebrate the Bill of Rights this month, we can be thankful to the Framers, who crafted an enduring and resilient plan of self-government unlike any the world had ever seen, for infusing fairness in our criminal-justice system.

King is director of public affairs and a staff attorney for the National Association of Criminal Defense Lawyers.