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Exploring the Constitution, Part 27: The Fifth Amendment Protection Against Double Jeopardy

Copyright 2001 by David W. Neuendorf

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In part 26 of the series of columns on the Constitution, we started our examination of the Fifth Amendment by discussing the requirement for the use of grand juries. In part 27 we'll look at the Amendment's protection against double jeopardy. The relevant part of the text of the Constitution is the following:

"...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;..."

A literal reading of the wording seems to say that the principle applies only to capital offenses, or others for which the punishment would involve danger to a "limb" of the defendant. Presumably the latter refers to punishments which would now be considered "cruel and unusual," such as mutilation. The US Supreme Court, however, often uses American and even English common law precedents to decide the meaning of constitutional language. In this case, they have interpreted "jeopardy of life or limb" to mean jeopardy of any form of punishment.

The reason for this prohibition is to prevent government harassment of a citizen by repeated prosecutions based on the same accusation. With the immense financial resources provided by the taxpayers, the state could convict anyone by trying him multiple times until the prosecutor attained the desired verdict. The Fifth Amendment thus serves to protect us from one of the common weapons of tyranny.

The term "double jeopardy" is thrown around a lot in movies and fiction, often with little understanding. In one recent movie plot, for example, it was assumed that one conviction of murdering a person who turned out to be alive after all made the accused forever immune to prosecution for murdering that particular victim. Of course, double jeopardy refers to multiple prosecutions for the same act, not to prosecutions for multiple instances of the act.

Over the years, frustrated prosecutors have made various arguments about the meaning of double jeopardy. For example, some interpret it to mean multiple convictions for the same offense. The Supreme Court has repudiated these ideas, explaining that "jeopardy" in this context means being in danger of a conviction; that is, being tried for an offense. Once a verdict has been reached, unless a mistrial is declared, only the defendant has the right to seek a new trial or an appeal. Having been exposed to the danger of conviction once, he cannot be put in jeopardy again.

The Supreme Court has carved out some exceptions to the application of the double jeopardy clause. For example, a civil penalty is not considered a punishment for purposes of the Fifth Amendment. That is why O.J. Simpson could be stripped of all of his property in a civil suit after being acquitted of the murder of his wife.

More importantly, the court has created a doctrine called "dual sovereignty" which significantly limits the definition of double jeopardy. This doctrine is based on the fact that any crime which occurs in the US also happens inside the territory of one state. Both the state and federal governments have jurisdiction over crimes that occur in their territory. Both may prosecute a person for state and federal criminal violations based on the same illegal act.

I started this column thinking that dual state and federal prosecutions, such as that which occurred in the Rodney King beating incident, were violations of the Fifth Amendment. Researching Supreme Court opinions has convinced me that dual sovereignty is a necessary doctrine for our judicial system. Without it, the state and federal governments could nullify each other's laws by being the first to prosecute for a particular act.

For example, suppose that a racist killer were to be convicted in federal court of violating the civil rights of his victims, and sentenced to a prison term. Without the principle of dual sovereignty, the state where the killing occurred would be unable to try the defendant for murder, since he had already been tried once for that same act. The state's law against murder would have been nullified by the federal civil rights law. That would be a gross violation of the federal relationship between the state and federal governments.

By the way, researching these questions can be a lot of fun; and anyone with an internet connection can do it. For Supreme Court cases, I like to start at The opinions have many hyperlinks to precedents cited, so you can zero in on the key cases fairly fast.