Amdt5. Scope of the Double Jeopardy Clause

Fifth Amendment:

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 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.1 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.2 Ordinarily, however, civil in rem forfeiture proceedings may not be considered punitive for purposes of double jeopardy analysis. 3and the same is true of civil commitment following expiration of a prison term. 4

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. 5

During the 1970s, the Court decided an uncommonly large number of cases raising double jeopardy claims. 6 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.7 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. 8 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. 9 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. 10 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.


  1.  Jump to essay-1Ex parte Lange, 85 U.S. (18 Wall.) 163, 169 (1874). The clause generally has no application in noncriminal proceedings. Helvering v. Mitchell, 303 U.S. 391 (1938).
  2.  Jump to essay-2The clause applies in juvenile court proceedings that are formally civil. Breed v. Jones, 421 U.S. 519 (1975). See also United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984); United States v. Halper, 490 U.S. 435 (1989) (civil penalty under the False Claims Act constitutes punishment if it is overwhelmingly disproportionate to compensating the government for its loss, and if it can be explained only as serving retributive or deterrent purposes); Montana Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767 (1994) (tax on possession of illegal drugs, to be collected only after any state or federal fines or forfeitures have been satisfied, constitutes punishment for purposes of double jeopardy). But see Seling v. Young, 531 U.S. 250 (2001) (a statute that has been held to be civil and not criminal in nature cannot be deemed punitive as applied to a single individual). The issue of whether a law is civil or punitive in nature is essentially the same for ex post facto and for double jeopardy analysis. 531 U.S. at 263.
  3.  Jump to essay-3United States v. Ursery, 518 U.S. 267 (1996) (forfeitures, pursuant to 19 U.S.C. § 981 and 21 U.S.C. § 881, of property used in drug and money laundering offenses, are not punitive). The Court in Ursery applied principles that had been set forth in Various Items of Personal Property v. United States, 282 U.S. 577 (1931) (forfeiture of distillery used in defrauding government of tax on spirits), and United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984) (forfeiture, pursuant to 18 U.S.C. § 924(d), of firearms used or intended to be used in firearms offenses). A two-part inquiry is followed. First, the Court inquires whether Congress intended the forfeiture proceeding to be civil or criminal. Then, if Congress intended that the proceeding be civil, the court determines whether there is nonetheless the clearest proof that the sanction is so punitive as to transform it into a criminal penalty. 89 Firearms, 465 U.S. at 366.
  4.  Jump to essay-4Kansas v. Hendricks, 521 U.S. 346, 369-70 (1997) (commitment under state’s Sexually Violent Predator Act).
  5.  Jump to essay-5Abney v. United States, 431 U.S. 651 (1977).
  6.  Jump to essay-6See United States v. DiFrancesco, 449 U.S. 117, 126-27 (1980) (citing cases).
  7.  Jump to essay-7Burks v. United States, 437 U.S. 1, 9, 15 (1978). One result is instability in the law. Thus, Burks overruled, to the extent inconsistent, four cases decided between 1950 and 1960, and United States v. Scott, 437 U.S. 82 (1978), overruled a case decided just three years earlier, United States v. Jenkins, 420 U.S. 358 (1975).
  8.  Jump to essay-8See Crist v. Bretz, 437 U.S. 28, 40 (1978) (dissenting opinion). Justice Powell, joined by Chief Justice Burger and Justice Rehnquist, argued that, with the Double Jeopardy Clause so interpreted, the Due Process Clause could be relied on to prevent prosecutorial abuse during the trial designed to abort the trial and obtain a second one. Id. at 50. All three have joined, indeed, in some instances, have authored, opinions adverting to the role of the double jeopardy clause in protecting against such prosecutorial abuse. E.g., United States v. Scott, 437 U.S. 82, 92-94 (1978); Oregon v. Kennedy, 456 U.S. 667 (1982) (but narrowing scope of concept).
  9.  Jump to essay-9United States v. Scott, 437 U.S. 82, 101 (1978) (dissenting opinion) (Justices Brennan, White, Marshall, and Stevens).
  10.  Jump to essay-10Thus, Justice Blackmun has enunciated positions recognizing a broad right of defendants much like the position of the latter three Justices, Crist v. Bretz, 437 U.S. 28, 38 (1978) (concurring), and he joined Justice Stevens’ concurrence in Oregon v. Kennedy, 456 U.S. 667, 681 (1982), but he also joined the opinions in United States v. Scott, 437 U.S. 82 (1978), and Arizona v. Washington, 434 U.S. 497 (1978) (Justice Blackmun concurring only in the result).