No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
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. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, 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. 1 A second
vitally important interest[ ] embodied in the Double Jeopardy Clause
is the preservation of 'the finality of judgments.' 2
The concept of double jeopardy goes far back in history, but its development was uneven and its meaning has varied. The English development, under the influence of Coke and Blackstone, came gradually to mean that a defendant at trial could plead former conviction or former acquittal as a special plea in bar to defeat the prosecution. 3 In this country, the common-law rule was in some cases limited to this rule and in other cases extended to bar a new trial even though the former trial had not concluded in either an acquittal or a conviction. The rule’s elevation to fundamental status by its inclusion in several state bills of rights following the Revolution continued the differing approaches. 4 Madison’s version of the guarantee as introduced in the House of Representatives read:
No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense. 5 Opposition in the House proceeded on the proposition that the language could be construed to prohibit a second trial after a successful appeal by a defendant and would therefore either constitute a hazard to the public by freeing the guilty or, more likely, result in a detriment to defendants because appellate courts would be loath to reverse convictions if no new trial could follow, but a motion to strike
or trial from the clause failed. 6 As approved by the Senate, however, and accepted by the House for referral to the states, the present language of the clause was inserted. 7
Throughout most of its history, this clause was binding only against the Federal Government. In Palko v. Connecticut, 8 the Court rejected an argument that the Fourteenth Amendment incorporated all the provisions of the first eight Amendments as limitations on the states and enunciated the due process theory under which most of those Amendments do now apply to the states. Some guarantees in the Bill of Rights, Justice Cardozo wrote, were so fundamental that they are
of the very essence of the scheme of ordered liberty and
neither liberty nor justice would exist if they were sacrificed. 9 But the Double Jeopardy Clause, like many other procedural rights of defendants, was not so fundamental; it could be absent and fair trials could still be had. Of course, a defendant’s due process rights, absent double jeopardy consideration per se, might be violated if the state
creat[ed] a hardship so acute and shocking as to be unendurable, but that was not the case in Palko. 10 In Benton v. Maryland, however, the Court concluded
that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage. . . . Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ the same constitutional standards apply against both the State and Federal Governments. 11 Therefore, the double jeopardy limitation now applies to both federal and state governments and state rules on double jeopardy, with regard to such matters as when jeopardy attaches, must be considered in the light of federal standards. 12
In a federal system, different units of government 13 may have different interests to serve in the definition of crimes and the enforcement of their laws, and where the different units have overlapping jurisdictions a person may engage in conduct that will violate the laws of more than one unit. 14 Although the Court had long accepted in dictum the principle that prosecution by two governments of the same defendant for the same conduct would not constitute double jeopardy, it was not until United States v. Lanza 15 that the conviction in federal court of a person previously convicted in a state court for performing the same acts was sustained.
We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory. . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other. 16 In Gamble v. United States, the Court explained that “where there are two sovereigns, there are two laws, and two ‘offences.’” 17
The Supreme Court has been asked to overrule this “dual sovereignty” doctrine in a number of cases, and has repeatedly declined to do so. 18 Although some early cases establishing this doctrine cited the now-overruled principle that the Double Jeopardy Clause did not apply to the states, 19 the Court has since clarified that the dual sovereignty doctrine survived ratification of the Fourteenth Amendment. 20 The Court said in Gamble, issued in 2019, that the dual sovereignty doctrine was justified by historical understandings of the Double Jeopardy Clause. 21 Observing that the Clause prohibits dual prosecution for the same “offence,” the Court explained that at the time the Constitution was written, an “offence” was defined as a violation of a particular law. 22 In the Court’s view, two sovereigns will have two different laws, meaning that violations of those laws will be two different offenses. 23 Further, the Court emphasized that by 2019, the doctrine had been applied in “a chain of precedent linking dozens of cases over 170 years.” 24 In prior cases, the Court also recognized the practical considerations justifying the dual sovereignty doctrine, noting that without this principle, states could “hinder” federal law enforcement by imposing more lenient sentences on defendants under state law, thereby barring federal prosecution even if the “defendants’ acts impinge more seriously on a federal interest than on a state interest.” 25 And in Gamble, the Court noted the international consequences of the doctrine, stating that if “only one sovereign may prosecute for a single act, no American court—state or federal—could prosecute conduct already tried in a foreign court.”  26If the Double Jeopardy Clause did bar such U.S. prosecutions, the Court said that this could raise prudential concerns about the U.S. government’s ability to vindicate its interests in enforcing its own criminal laws, particularly if the foreign government’s legal system is seen as somehow inadequate. 27
The dual sovereignty doctrine has also been applied to permit successive prosecutions by two states for the same conduct, 28 and to permit a federal prosecution after a conviction in an Indian tribal court for an offense stemming from the same conduct. 29 Of course, when in fact two different units of the government are subject to the same sovereign, the Double Jeopardy Clause does bar separate prosecutions by them for the same offense. 30
The clause speaks of being put in
jeopardy of life or limb, which as derived from the common law, generally referred to the possibility of capital punishment upon conviction, but it is now settled that the clause protects with regard
to every indictment or information charging a party with a known and defined crime or misdemeanor, whether at the common law or by statute. 31 Despite the clause’s literal language, it can apply as well to sanctions that are civil in form if they clearly are applied in a manner that constitutes
punishment. 32 Ordinarily, however, civil in rem forfeiture proceedings may not be considered punitive for purposes of double jeopardy analysis. 33and the same is true of civil commitment following expiration of a prison term. 34
Because a prime purpose of the clause is to protect against the burden of multiple trials, a defendant who raises and loses a double jeopardy claim during pretrial or trial may immediately appeal the ruling; this is a rare exception to the general rule prohibiting appeals from nonfinal orders. 35
During the 1970s, the Court decided an uncommonly large number of cases raising double jeopardy claims. 36 Instead of the clarity that often emerges from intense consideration of a particular issue, however, double jeopardy doctrine has descended into a state of
confusion, with the Court acknowledging that its decisions
can hardly be characterized as models of consistency and clarity. 37 In large part, the re-evaluation of doctrine and principle has not resulted in the development of clear and consistent guidelines because of the differing emphases of the Justices upon the purposes of the clause and the consequent shifting coalition of majorities based on highly technical distinctions and individualistic fact patterns. Thus, some Justices have expressed the belief that the purpose of the clause is only to protect final judgments relating to culpability, either of acquittal or conviction, and that English common law rules designed to protect the defendant’s right to go to the first jury picked had early in our jurisprudence become confused with the Double Jeopardy Clause. Although they accept the present understanding, they do so as part of the Court’s superintending of the federal courts and not because the understanding is part and parcel of the clause; in so doing, of course, they are likely to find more prosecutorial discretion in the trial process. 38 Others have expressed the view that the clause not only protects the integrity of final judgments but, more important, that it protects the accused against the strain and burden of multiple trials, which would also enhance the ability of government to convict. 39 Still other Justices have engaged in a form of balancing of defendants’ rights with society’s rights to determine when reprosecution should be permitted when a trial ends prior to a final judgment not hinged on the defendant’s culpability. 40 Thus, the basic area of disagreement, though far from the only one, centers on the trial from the attachment of jeopardy to the final judgment.