by Jodi L. Miller
Can you imagine going through the anxiety and expense of a trial, ultimately being acquitted of the crime you’re accused of only to be tried again for the same crime? The Founding Fathers could, and they addressed it in the Fifth Amendment to the U.S. Constitution.
The Fifth Amendment states in part, “…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…” This is known as the Double Jeopardy Clause, and it prevents the government from prosecuting someone for the same crime once they have been either acquitted or convicted.
George Thomas, a professor at Rutgers Law School in Newark who teaches courses on criminal law and constitutional law, explains that the framers of the U.S. Constitution were influenced by Commentaries on the Laws of England, a treatise written by Sir William Blackstone, an 18th century English jurist who was known for his explanations of English common law.
“The framers essentially copied Blackstone’s double jeopardy principle,” Professor Thomas says. “The only change of note was Blackstone limited it to jeopardy of life.”
The framers of the U.S. Constitution added the phrase “or limb.” Professor Thomas, who wrote a book on double jeopardy—Double Jeopardy: The History, the Law—speculates that the addition was made to assure that the protection guarded against re-prosecuting lesser crimes that did not carry the death penalty.
“I think they wanted a broader term there—broader than just life,” Professor Thomas says.
The purpose of the Double Jeopardy Clause, Professor Thomas explains, was to limit the power of the federal government. When America was founded, the framers feared that the U.S. Congress would start to act like the English Parliament and the President might start acting like a king, he says.
“One way a corrupt state could attack its enemies would be to keep prosecuting them even after an acquittal,” Professor Thomas notes. “The framers wanted to make sure the central government could not do that.”
Over the years, the U.S. Supreme Court has issued many rulings concerning the Double Jeopardy Clause. In the majority opinion for the 1957 case of Green v. United States the Court explained the clause’s purpose.
“The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense,” Justice Hugo L. Black wrote for the majority of the Court. “The underlying idea…is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
When does jeopardy kick in?
So, when is someone put “in jeopardy?” In a jury trial, jeopardy is attached to a defendant when the jury is empaneled and sworn in by the judge. In a bench trial, where a judge, rather than a jury, decides the outcome of a case, jeopardy attaches when the judge begins to hear the evidence in the case.
What about in the case of a mistrial? Does double jeopardy apply then? A mistrial occurs when a jury cannot reach a verdict, or there is a procedural error of some kind, or the judge determines there has been some sort of misconduct during the trial.
In 2012, the U.S. Supreme Court addressed double jeopardy and mistrials in the case of Blueford v. Arkansas. The Court was asked to decide whether the double jeopardy clause prevented the state of Arkansas from retrying Alex Blueford on murder charges after a mistrial was declared due to a hung jury.
The charges against Blueford included (in order of severity) capital murder, first-degree murder, manslaughter and negligent homicide. Before deliberations, the trial court judge instructed the jury, “If you have a reasonable doubt of the defendant’s guilt on the charge of capital murder, you will consider the charge of murder in the first degree. If you have a reasonable doubt of the defendant’s guilt on the charge of murder in the first degree, you will then consider the charge of manslaughter. If you have a reasonable doubt of the defendant’s guilt on the charge of manslaughter, you will then consider the charge of negligent homicide.” The jurors could either convict Blueford on one of the charges or acquit him of all of them.
After several hours of deliberation, the jurors reported that they could not reach a verdict. The judge called them back and asked them to try again. After more time, the jury sent a note saying they were still deadlocked and they went back to the courtroom.
At that time, the judge asked the jury foreperson to relate the count on capital murder, and the foreperson replied, “That was unanimous against that.” The judge asked for the count on murder in the first degree and the foreperson replied, “That was unanimous against that.” The judge then asked for the count on manslaughter and the foreperson replied, “nine for, three against.” When the judge asked about negligent homicide, the foreperson said, “We did not vote on that, sir. We couldn’t get past the manslaughter.” The jurors were then sent back to the jury room one more time to deliberate further.
Blueford’s attorney asked for a partial verdict on the two most serious charges, but the judge denied the request. When the jury still could not reach a verdict 30 minutes later, the judge declared a mistrial. When the State of Arkansas attempted to retry Blueford, his attorney “moved to dismiss the capital and first-degree murder charges on double jeopardy grounds, citing the foreperson’s report that the jurors had voted unanimously against guilt on those offenses.” The motion was denied. The Arkansas Supreme Court affirmed the trial court’s decision in the case and Blueford appealed to the U.S. Supreme Court.
In a 6 to 3 decision, the U.S. Supreme Court affirmed the Arkansas Supreme Court’s decision, ruling that the foreperson’s announcement that the jury had unanimously voted to acquit on the two most serious charges did not constitute a verdict or an acquittal because the jury resumed deliberations.
In the Court’s majority opinion, Chief Justice Roberts wrote: “As permitted under Arkansas law, the jury’s options in this case were limited to two: either convict on one of the offenses or acquit on all…There were separate [verdict] forms to convict on each of the possible offenses, but there was only one form to acquit, and it was to acquit on all of them…When the jury was unable to return a verdict, the trial court properly declared a mistrial and discharged the jury. As a consequence, the double jeopardy clause does not stand in the way of a second trial on the same offenses.”
In other words, the reason the defendant could be tried again is because while jeopardy had attached to the defendant, double jeopardy did not apply yet because there had been no verdict in the case.
Exceptions to double jeopardy
There are exceptions to the Double Jeopardy Clause. For example, the dual-sovereignty exception, which allows a state and the federal government to prosecute a defendant for the same crime.
Professor Thomas explains that dual-sovereignty stems from how our nation came together. In the beginning, the 13 colonies were independent states and viewed as separate sovereigns.
“The colonies gave up some of their sovereignty in the U.S. Constitution, but they retained a fair amount,” Professor Thomas explains. “The dual-sovereignty exception is the notion that because the state, in some measure, is an independent sovereign from the federal government, then it has interests to be protected by its criminal law, and it should be able to prosecute those interests separately from the federal government.”
In Gamble v. United States (2019), the U.S. Supreme Court ruled on the dual-sovereignty exception. The case involved Terance Gamble who was pulled over by police in Alabama for a damaged headlight. Police searched the vehicle and found a handgun. Gamble was a convicted felon and under Alabama state law and federal law, it was illegal for him to possess a handgun. Gamble was tried and convicted under state law and sentenced to one year in prison. He was also prosecuted under federal law, receiving an additional 46-month sentence. The state district court and the 11th Circuit Court of Appeals both held that double jeopardy did not apply in the case due to the dual-sovereignty exception.
When the case came to the U.S. Supreme Court, the Constitutional Accountability Center, the American Civil Liberties Union, and the Cato Institute submitted a joint amicus brief to the Court asking them to overrule the dual-sovereignty exception to the Double Jeopardy Clause, claiming it is inconsistent with the clause’s history, text and purpose.
“The Framers viewed the Double Jeopardy Clause as a fundamental protection of individual liberty and an important safeguard against government harassment and overreach. The dual-sovereignty exception, by allowing two governments to do together what neither could do alone, undermines the fundamental protection of individual liberty that the Double Jeopardy Clause was adopted to achieve,” the brief stated.
In 2019, the U.S. Supreme Court affirmed the lower court’s decision with a 7 to 2 ruling. The Court’s majority opinion held: “The term ‘offence’ was commonly understood in 1791 to mean ‘transgression,’ that is, ‘the Violation or Breaking of a Law.’ …As originally understood, then, an ‘offence’ is defined by a law and each law is defined by a sovereign. So, where there are two sovereigns, there are two laws, and two ‘offences.’”
Justice Ruth Bader Ginsburg and Justice Neil Gorsuch issued separate dissents in the case. In her dissent, Justice Ginsburg quoted Alexander Hamilton in Federalist Paper No. 82, who argued that “the United States and its constituent States, unlike foreign nations, are ‘kindred systems, parts of ONE WHOLE.” She noted that there is no mention of “separate sovereigns” in the Fifth Amendment and that “if two laws demand proof of the same facts to secure a conviction, they constitute a single offense under our Constitution.”
Justice Gorsuch wrote, “When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is ‘the poor and the weak,’ and the unpopular and controversial, who suffer first—and there is nothing to stop them from being the last.”
Discussion Questions
- Consider the arguments for and against the dual-sovereignty exception to the Double Jeopardy Clause portrayed in the article. Explain in detail which side you are on and why.
- Imagine a scenario where a defendant is acquitted of a crime, but years later, new DNA evidence strongly suggests their guilt. Should double jeopardy prevent a retrial in this situation? Why or why not?
- Review the facts of the Blueford v. Arkansas Do you agree or disagree with the outcome? Explain your reasoning in detail.
Glossary Words
acquitted—cleared from a charge.
affirm— to uphold, approve or confirm.
amicus brief—a friend of the court brief, which is submitted by an entity with strong interests in a case but not a party in the case.
appealed— when a decision from a lower court is reviewed by a higher court because a party requests review.
capital murder—a specific type of murder that makes the accused eligible for the death penalty.
deadlocked — when a jury is unable to reach agreement on a verdict.
defendant — in a legal case, the person accused of civil wrongdoing or a criminal act.
felon—a person convicted of a felony.
first-degree murder —murder committed with premeditation.
hung jury — a jury that is so divided in its opinions that it is unable to reach a unanimous verdict.
majority opinion — a statement written by a judge or justice that reflects the opinion reached by the majority of their colleagues.
manslaughter — unlawful killing of a human being without premeditation.
negligent homicide—a criminal offense where a person’s negligence caused the death of another.
sovereign — indisputable power or authority.
sovereignty — supremacy of authority over a defined area or population.
verdict — the outcome of a trial; ruling handed down by a jury or a judge in a trial.
This article originally appeared in Constitutionally Speaking—The Fifth Amendment
BONUS CONTENT
A Famous Double Jeopardy Case
One of the most famous court cases that invoked double jeopardy was the second murder trial of Jack McCall in 1876. McCall killed Wild Bill Hickok, a gunfighter and lawman who became an American folk hero.
McCall walked into a saloon in Deadwood where Hickok was playing poker. He shot Hickok point blank in the back of the head. Hickok was holding Aces and Eights at the time, which is now commonly referred to as the “Dead Man’s Hand.”
The details of why McCall killed Hickok are murky. Some reports say McCall lost to Hickok playing cards the previous day and Hickok insulted him by offering him money and scolding him not to play again unless he could cover his losses. During his first trial, McCall claimed he was avenging his brother’s death.
McCall was originally tried and acquitted in Deadwood, which was then part of South Dakota Indian Territory and not considered a formal town. The jury, as well as the defense and prosecution were made up of local miners and businessmen. It took two hours for McCall to be found not guilty. After the verdict, an editorial in the Black Hills Pioneer stated: “Should it ever be our misfortune to kill a man…we would simply ask that our trial may take place in some of the mining camps of these hills.”
After the trial, McCall fled to the Wyoming Territory where he bragged about killing Hickok. Authorities in Wyoming didn’t recognize the acquittal, saying Deadwood had no legal jurisdiction. McCall was later retried in Yankton, the capital of the Dakota Territory. The federal court in Yankton ruled that the first trial was invalid since Deadwood was not under a legally constituted court system. For this reason, the court decided that double jeopardy did not apply.
In his second trial, McCall was found guilty. He was hanged in 1877, becoming the first person to be executed in the Dakota Territory.