Explore Freedom

Explore Freedom » Why Double Jeopardy May Not Protect You

FFF Articles

Why Double Jeopardy May Not Protect You


The legal doctrine of double jeopardy may be in flux (again), this time in a murder case being reviewed by the United States Supreme Court.

An October 11 CNN report opens, “The justices on Tuesday accepted the appeal of Alex Blueford, accused of killing his girlfriend’s infant son. At issue is whether a criminal defendant can be retried on more serious charges if the jury deadlocks on a lesser charge.”

The jury had the option of finding Blueford guilty on any of four charges: capital murder, first-degree murder, manslaughter, and negligent homicide. They rejected the first two charges but deadlocked on the third one of manslaughter and did not discuss the fourth. A mistrial was declared. In refiling the case, however, the prosecutors reinstated the full slate of four charges.

The question before the Supreme Court is whether the jury’s rejection of the capital and first-degree murder charges constitutes a de facto acquittal on those offenses? If it does, then retrying Blueford on those two charges may violate the double-jeopardy clause of the Fifth Amendment to the U.S. Constitution, which reads, “No person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” In short, a person may not be retried for the same offense after being acquitted. How does double jeopardy apply in cases in which there is a split decision on charges? State courts are divided on the question. The Supreme Court may well render the defining words.

Protection from double jeopardy is a constitutional right, but its scope and applicability have largely been defined by court precedents, such as the pending Blueford v. Arkansas. As a procedural defense in flux, double jeopardy deserves a closer look.

What Is double jeopardy?

Countries with legal systems derived from English common law usually include protection against double jeopardy.

Double jeopardy dates back at least to early Greek and Roman law. In 355 B.C., the Greek orator Demosthenes stated that “the laws forbid the same man to be tried twice on the same issue, be it a civil action, a scrutiny, a contested claim, or anything else of the sort.”

Without discounting the importance of its earlier history, we should note that the origins of double jeopardy within the common law are often traced back to 12th-century England, with its parallel court system consisting of ecclesiastical and Crown (lay) courts. Clergymen who were accused of civil or criminal offenses were tried by the notoriously lenient ecclesiastical courts, thus avoiding the far harsher Crown courts.

In the 12th century, the church’s presence was pervasive throughout English society, reaching into commerce, trade, and politics. Thus, the range of crimes alleged against 12th-century clerics was very broad, including offenses that diverted money from the royal purse. Moreover, given the leniency of ecclesiastical courts, corruption within church membership was rampant. Henry II (King of England from 1154–1189) challenged the jurisdiction of ecclesiastical courts by pressing for guilty clerics to be tried also by lay courts. Henry is reputed to have said that it takes “two crimes to hang a priest.” The first crime could lead to his being defrocked, and only then could the second crime lead to capital punishment.

The renowned legal scholar Thomas Becket was then Archbishop of England. He strenuously objected to Henry’s proposal and invoked the canon-law principle of “not twice for the same fault.”

Conflict over this and other points of church authority became so bitter between the two men that it led to Becket’s murder by knights who thought they were carrying out the king’s wishes. They were mistaken, but Henry II was widely held responsible for the assassination of a religious figure revered throughout Europe. Indeed, Becket was canonized by the Catholic Church shortly after his murder, and nowadays both the Catholic and Anglican churches recognize him as a martyr. As penance, and to quell dissent, Henry II bowed to the “benefit of clergy” — that is to the exclusive authority of ecclesiastical courts to try their own. Over time, the clerical privilege evolved into the universal protection that is now called “double jeopardy.”

In his essay “A Brief History of the Fifth Amendment Guarantee against Double Jeopardy,” David S. Rudstein observes,

The first recorded mention in English law of an individual raising a plea of a former acquittal to bar a prosecution for the same offense appears to have occurred at the beginning of the thirteenth century.… Over the next five hundred years, the guarantee against double jeopardy became firmly entrenched in the common law in the form of the pleas of autrefoits acquit (a former acquittal), autrefoits convict (a former conviction), and pardon. By the second half of the eighteenth century, Sir William Blackstone, perhaps the most important writer on the common law, could say that the principle that “no man is to be brought into jeopardy of his life, more than once for the same offence” constitutes a “universal maxim of the common law.” (PDF)

Double jeopardy in America

The history of double jeopardy in America is more clearly rooted in protecting the individual against overweening authority. Justice Hugo L. Black stated the general purpose of the legal protection in America in his opinion in Green v. United States (1957):

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.

In practical terms, double jeopardy has been used to prevent a range of judicial inequities, including the use of the public purse to harass innocent defendants; the financial and emotional devastation of a defendant through multiple prosecutions; the corruption of criminal courts through a disregard for the finality of their proceedings; the corruption of prosecutors who target individuals; and the arbitrary power of judges to impose multiple sentences that constitute “undue” or “unusual punishment.”

Through founding documents and through court precedents, double jeopardy has come to include three specific protections. First, those acquitted of a crime are protected against being retried for the same offense. Second and third, those convicted of a crime may not be prosecuted again for the same offense, nor may they receive multiple punishments in successive proceedings. (Under some circumstances, double jeopardy can preclude a second prosecution if a judge prematurely terminates a first trial.)

In 1641, the Massachusetts Bay Colony enacted the first legal code forged by New England colonists. This Body of Liberties is widely viewed as a forerunner to the Constitution’s Bill of Rights. Point 42 of the Body stated, “No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse.” King Charles II revoked this legal code in 1684 and replaced it with English law, which was less friendly to individual rights. Later reenacted, the Body of Liberties was then supplanted again.

New Hampshire was the first state to include protection against double jeopardy in its constitution (1784). Article 16 of its bill of rights, “Former Jeopardy; Jury Trial in Capital Cases,” states, “No subject shall be liable to be tried, after an acquittal, for the same crime or offense.”

Several other states recognized the legal doctrine through court precedents.

On a federal level, double jeopardy was eventually expressed through the Fifth Amendment of the Bill of Rights, which was attached to the Constitution. As originally proposed, the Constitution had no Bill of Rights. The Constitution set out the parameters and operation of a federal government, and did not set out in detail the guarantees of freedom an individual had against the federal power. When the absence of such guarantees threatened to prevent the wide acceptance of the Constitution, Virginia representative James Madison introduced amendments that evolved into the Bill of Rights. On double jeopardy, Madison suggested the wording, “no person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence.”

In the Fifth Amendment, the wording finally became, “No person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” (“Life or limb” is an antiquated term that refers to being drawn and quartered, but it has been widely interpreted to apply also to crimes that are not capital offenses or punished in a corporeal manner.)

Double jeopardy has been in effect since ratification of the Constitution in 1791. But it has evolved through legal interpretation and criminal court precedent.

Exceptions to double jeopardy

The main area in which double jeopardy has evolved has been through defining “exceptions” — that is, the circumstances under which this procedural protection does not apply.

Consider an exception ignored by the movie Double Jeopardy, in which a woman is convicted of murdering her husband; in fact, he has set her up, and he remains alive. The plot assumes that, after serving a prison sentence for murder, she can kill him with impunity because double jeopardy protects her from a retrial. In fact, for double jeopardy to apply, a retrial must be based on the same facts as the earlier one. There is an exception if the same crime is committed at different times, so new charges can be laid and tried separately.

By far the most important exception to double jeopardy is that of “dual sovereignty,” by which prosecution can be conducted by more than one government.

Indeed, the Fifth Amendment applied only to the federal government and placed no restrictions on state governments that might pursue multiple prosecutions on the same offense. In 1868, double jeopardy was imposed on the state level through the Fourteenth Amendment. Section 1 states, in part,

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment established the “incorporation doctrine.” This is the legal doctrine through which key provisions in the Bill of Rights are applied at the individual state level. Thus, the Supreme Court has found that no state law may violate freedom of speech or due-process protections such as double jeopardy.

Nevertheless, individual states retain the authority to try a person who has been prosecuted for the same offense by a federal authority, and vice versa. The two prosecutions do not constitute double jeopardy. In United States v. Lanza (1922), the Supreme Court asserted that “an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.” In short, a defendant can be prosecuted separately on the federal and state levels for the same crime. All subsequent Supreme Court cases concerning dual sovereignty have upheld Lanza.

Moreover, in Heath v. Alabama (1985), the Supreme Court ruled that each individual state possesses sovereignty and, so, may proceed with separate prosecutions. The specifics of Heath involved a murder committed in Alabama, after which the body was taken to Georgia. Both states prosecuted and convicted Heath for the same murder, and the Supreme Court sustained both convictions. In theory, therefore, every state in the union could separately prosecute the same person for the same act if that act somehow fell within its jurisdiction.

Grand-jury hearings and many appeal procedures do not prohibit double jeopardy. A host of circumstances allow prosecutions to move forward. For example, if a case is dismissed or otherwise blocked before jeopardy attaches, then future prosecutions can proceed. In criminal cases before a jury, jeopardy attaches when the jury is empanelled; in ones before a judge alone, jeopardy attaches when the first witness is sworn in. Juvenile-delinquency adjudications attach jeopardy at different stages depending on circumstance.


What began as a straight-forward and well-defined due-process protection has become a legal maze. In the process, protection for the individual has been surrendered to prosecutorial authorities. Currently, there is a drive to federalize crimes, even those that have a long tradition of being tried on a state level. The trend has been led by the war on drugs and the RICO Act, through which property associated with a crime can be confiscated. As the federalization of crime becomes more prevalent, so too do federal trials based on dual sovereignty or on defining the same act in substantively different ways. Like freedom of speech and other constitutional guarantees of individual liberty, double jeopardy is gradually being reduced to window dressing.

  • Categories
  • This post was written by:

    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).