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Double Jeopardy

Double Jeopardy: The History, The Law

George C. Thomas
Copyright Date: 1998
Published by: NYU Press
Pages: 256
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  • Book Info
    Double Jeopardy
    Book Description:

    In the first book-length book on the subject in over a quarter century, George C. Thomas III advances an integrated theory of double jeopardy law, a theory anchored in historical, doctrinal, and philosophical method. Despite popular belief, double jeopardy has never been a limitation on the legislature. It functions instead to keep prosecutors and judges from imposing more than one criminal judgment for the same offense. Determining when seemingly different offenses constitute the "same offense" is no easy task. Nor is it always easy to determine when a defendant has suffered more than one criminal judgment. Tracing American double jeopardy doctrine back to twelfth century English law, the book develops a jurisprudential account of double jeopardy that recognizes the central role of the legislature in creating criminal law blameworthiness.

    eISBN: 978-0-8147-8441-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Acknowledgments
    (pp. xi-xii)
  4. Introduction
    (pp. 1-6)

    The United States Supreme Court has failed to achieve a stable interpretation of the Double Jeopardy Clause. This is surprising because the American double jeopardy prohibition partakes of a Western legal concept that is both ancient and fundamental. A specific bar against double jeopardy has existed in the common law at least since the confrontation between Henry II and Saint Thomas Becket in 1164. More generally, laws against changing a final judgment can be traced to the Code of Hammurabi.

    At one level, a bar against double jeopardy is a self-evident protection that is inevitable in any legal system. No...

  5. 1 The Road Back to Blackstone: An Overview of the Argument
    (pp. 7-45)

    Blackstone was almost certainly the source of the Double Jeopardy Clause language. The Supreme Court noted that a bar against double jeopardy “was carried into the jurisprudence of this Country through the medium of Blackstone.”¹ Blackstone stated a centuries-old common law view of double jeopardy, which is (I argue) the most defensible conception today, more than two hundred years later. But the growing procedural and substantive complexity of modern law has made the application of the common law principles devilishly difficult. Blackstone did not have to deal with federal sentencing guidelines, for example, and the number of criminal offenses today...

  6. 2 Double Jeopardy Policy and History
    (pp. 46-86)

    Part of the argument in the preceding chapter was that rules cannot be evaluated without a relatively hard-edged statement of the overarching policy and goals. This chapter seeks to identify the plausible statements of double jeopardy policy and then to choose the one that most closely fits the parameters developed in chapter 1. After a single “best” policy is tentatively identified, I turn to double jeopardy history to justify and illuminate that policy statement.

    A paradigm case can often tell us a fair amount about the policies that are served by the rule manifested in the paradigm. For example, English...

  7. 3 Standard Double Jeopardy Approaches
    (pp. 87-118)

    This chapter examines the largely failed efforts of the Supreme Court to find a coherent set of double jeopardy doctrines. The first three sections in the chapter coincide with the legislative-prerogative principle and supporting presumptions developed in chapter 2. Then I briefly describe the best of the solutions offered by commentators. None is any better than the Court’s efforts, save that of Michael Moore,¹ and Moore’s theory can be usefully deferred to chapter 5 for its relevance in developing a detailed set of presumptions about the same-offense issue.

    The jeopardy aspect of the problem is a good place to start,...

  8. 4 “Life or Limb” Blameworthiness
    (pp. 119-133)

    The Double Jeopardy Clause does not forbid all multiple judicial outcomes. It forbids only second jeopardies “of life or limb.” Even without reliance on the “life or limb” text, it is self-evident that double jeopardy protection does not apply to all forms of blameworthiness. We would be justly surprised if told our tort suit for damages could not proceed because the tortfeasor had already pleaded guilty to a crime that manifested the same blameworthiness.

    We would be surprised because the divergence between crime and tort can be traced at least as far back as Britton, whose treatise was published around...

  9. 5 Singular/Distinct Blameworthiness
    (pp. 134-166)

    The argument to this point is that double jeopardy “offense” can be understood only in terms of the “life or limb” blameworthiness the legislature intends to create. We must next understand when the legislature intends to create distinct blameworthiness and thus different offenses. Ultimately, we need a test that determines whether the blameworthiness in two statutes, or two violations of a single statute, is singular or distinct. If it is distinct, no double jeopardy bar exists to imposing a punishment for each distinct blameworthiness, and no bar exists to seeking that punishment in two proceedings.

    “Distinct” in this context means...

  10. 6 Bringing Coherence to Same-Offense Doctrine
    (pp. 167-200)

    So far I have developed an account that draws an equivalence between same-offense and singular criminal law blameworthiness. The argument is that, for purposes of the Double Jeopardy Clause, offense means the unit of blameworthiness the legislature intends to receive a single criminal (“life or limb”) penalty. This singularity can be manifested in a single act-type description that is violated once (with one violation sometimes including more than one act-token) or as the same blameworthy act-type described in more than one statute.

    Act-types can thus be the same in two ways: literally the same (which leads to a violation counting...

  11. 7 Unifying Same-Offense Theory: A Blameworthiness Test of Collateral Estoppel
    (pp. 201-213)

    As we have seen, a daunting challenge for a same-offense theory is to explain the disparate ways in which two offenses can be the same offense. In chapter 6 I argued that a blameworthiness account unifies the same-offense question, whether it arises in multiple violations of a single statute or in violations of different statutes and whether it arises in one trial or two trials. The next task is to explain the collateral estoppel dimension of the same-offense problem. No one has attempted to unify collateral estoppel with the traditional same-offense issues. That is my goal in this chapter.


  12. 8 Second Jeopardies: A Fresh Look at Blackstone’s Solution
    (pp. 214-255)

    We can now say good-bye to same offense. The focus in this chapter is on trial procedure and outcome, rather than on the substantive question of when offenses are the same. The question is whether a second jeopardy is threatened or has occurred. This question is important, of course, only if the second jeopardy concerns the same offense; for purposes of this chapter and the next, we simply assume that the relevant offenses are the same offense. In most second-jeopardy cases, the charge at the second trial is identical to the first one, which satisfies all same-offense tests.

    This chapter...

  13. 9 The Role of Legislative Intent in Determining the End of Jeopardy
    (pp. 256-271)

    We saw in chapters 2–6 that “same offense” is what the legislature means singular blameworthiness to be. In the second jeopardy part of the analysis, the legislative intent question goes to what the legislature means to count as a verdict. Unlike the same-offense context, where the legislature rarely speaks directly to the question of what constitutes singular blameworthiness, the legislature always tells us what constitutes a verdict. Either in statutes or rules of criminal procedure, the legislature specifies the form of a verdict, how it may be appealed or corrected, and when it becomes final if no action is...

  14. 10 A Final Defense: A Bill of Particulars and an Answer
    (pp. 272-276)

    When all is said and done, my idea in this book is simple: the Double Jeopardy Clause incorporates legislative judgments about substantive and procedural blameworthiness. The legislature creates substantive blameworthiness when it enacts criminal statutes. Determining when blameworthiness is singular or distinct (the same offense or different offenses) requires a set of presumptions about legislative intent in the vast majority of cases that lack explicit evidence of that intent. The most important presumption is that a single blameworthy act-type is a single offense, subject to an exception for multiple harms with requisite mens rea as to more than one harm....

  15. Notes
    (pp. 277-330)
  16. Bibliography
    (pp. 331-340)
  17. Index
    (pp. 341-348)
  18. About the Author
    (pp. 349-350)