Eleanor Finch
The Fifth Amendment of the United States Constitution contains the Double Jeopardy Clause, which protects individuals from being tried twice for the same offence. The clause provides four essential protections, including prohibitions against being subjected to the risk of conviction, being retried after an acquittal, and being convicted of both an offence and a lesser-included offence. The effectiveness of the clause depends on whether two separate offences can be considered the same, and it has been the subject of several judicial decisions regarding waiver of double jeopardy.
| Characteristics | Values |
|---|---|
| Name of Amendment | Fifth Amendment |
| Clause | Double Jeopardy Clause |
| Date Passed by Congress | September 25, 1789 |
| Date Ratified | December 15, 1791 |
| What it provides | No person can be convicted twice for the same offence |
| What it prohibits | Multiple punishments for the same offence |
| What it applies to | Juvenile court proceedings that are formally civil |
| What it doesn't apply to | Grand jury proceedings |
| What it depends on | Whether two separate offences can be considered the same offence |
| What it doesn't protect against | Retrial of a conviction that was reversed on appeal on procedural grounds |
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What You'll Learn
The Fifth Amendment
> "...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."
The clause provides four essential protections against the following:
- Being tried for a crime without a grand jury's indictment, except for specific cases.
- Being subjected to the risk of conviction for the same offence twice.
- Being compelled to be a witness against oneself in a criminal case.
- Being deprived of life, liberty, or property without due process.
The Supreme Court of the United States has ruled on cases involving the Double Jeopardy Clause, such as Green vs. State, where the Court ruled that the defendant could not be retried for first-degree murder after being acquitted of that charge by the original jury. In another case, United States v. Broce, the Court held that the defendant had waived his right to a double jeopardy claim by agreeing to it in a plea bargain agreement.
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Jeopardy of life or limb
The Fifth Amendment to the United States Constitution contains the Double Jeopardy Clause, which states that:
> "...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."
The "jeopardy of life or limb" refers to the possibility of capital punishment upon conviction. The phrase “life or limb” is not interpreted strictly and applies to any criminal penalty. The Double Jeopardy Clause prohibits, for the same offence:
- Being put on trial after an acquittal.
- Being retried on a charge for which a person has been found guilty but where the conviction was reversed on appeal.
- Being retried for the same offence after a mistrial.
- Being indicted by another grand jury after a prior grand jury refused to do so.
The Double Jeopardy Clause also applies to juvenile court proceedings that are formally civil.
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Double jeopardy in juvenile court proceedings
The Fifth Amendment of the United States Constitution contains the Double Jeopardy Clause, which states:
> "...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."
The Double Jeopardy Clause protects individuals from being prosecuted twice for the same crime. This applies to both federal and state governments. While it generally covers criminal punishment, there are cases where civil penalties may qualify if they are punitive. The Supreme Court of the United States has ruled that civil asset forfeitures do not constitute punishment for the purposes of the Double Jeopardy Clause, as they are remedial civil sanctions rather than punitive criminal sanctions.
The Double Jeopardy Clause also applies to juvenile court proceedings that are formally civil. In Breed v. Jones, 421 U.S. 519 (1975), the Supreme Court decided that double jeopardy applies when an individual is tried as a juvenile and then again as an adult for the same offence. This is because juvenile courts have the discretion to try a minor as an adult. Therefore, if a juvenile court tries an individual as a minor, another court may not try the same individual as an adult for the same crime.
In the context of juvenile court proceedings, the U.S. Supreme Court has also determined that youth charged with delinquency are entitled to many of the same due process rights as adults accused of crimes, including the right to an attorney, the right to confront witnesses, the right to have charges proven beyond a reasonable doubt, and the right against double jeopardy. The Supreme Court has ruled that youth are not entitled to jury trials in juvenile court, although several states have chosen to provide this right.
The juvenile justice system has evolved since its establishment in the late 19th century, with four distinct periods: the Progressive Era (1899-1960s), the Due Process Era (1960s-'70s), the Get-Tough Era (1980s-'90s), and the contemporary Children Are Different Era (2005-present). The system recognises that children who commit crimes are less blameworthy than adults and have a greater capacity for change. However, it has faced criticism for the harsh treatment of Black youth and the use of correctional practices similar to those in adult prisons and jails, such as solitary confinement and strip searches.
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Double jeopardy and civil penalties
The Fifth Amendment of the United States Constitution contains the Double Jeopardy Clause, which states that:
> "...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."
The Double Jeopardy Clause protects against three abuses:
- A second prosecution for the same offence after acquittal.
- A second prosecution for the same offence after conviction.
- Multiple punishments for the same offence.
Double jeopardy is a procedural defence that prevents an accused person from being tried again on the same or similar charges following an acquittal or conviction. It is a common concept in criminal law, and its purpose is to protect individuals from being subjected to the hazards of trial and possible conviction more than once for an alleged offence. In civil law, a similar concept is that of res judicata, which provides stronger protection by precluding any causes of action or claims that arise from a previously litigated subject matter.
The Double Jeopardy Clause applies to both the federal and state governments. It generally covers criminal punishment and not all sanctions. However, in certain cases, civil penalties may qualify if they are punitive in nature. For example, in United States v. One Assortment of 89 Firearms, the Supreme Court held that the prohibition on double jeopardy extends to civil sanctions that are punitive. Similarly, in United States v. Halper, the Court ruled that a civil sanction under the False Claims Act qualifies as punishment if it overwhelmingly disproportionately compensates the government for its loss and can only be explained as serving a retributive or deterrent purpose.
On the other hand, in United States v. Ursery, the Supreme Court held that civil asset forfeitures did not constitute punishment for the purposes of the Double Jeopardy Clause, as they are remedial civil sanctions rather than punitive criminal sanctions. Additionally, in Seling v. Young, the Court clarified that a statute held to be civil and not criminal cannot be deemed punitive when applied to an individual.
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Double jeopardy and dual sovereignty
The Fifth Amendment to the United States Constitution contains the Double Jeopardy Clause, which states:
> "...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."
The clause is designed to protect individuals from being tried and convicted more than once for the same alleged offence. Jeopardy attaches in a jury trial when the jury is sworn in, in a bench trial when the court begins to hear evidence, or when a court accepts a defendant's plea unconditionally. However, jeopardy does not attach in a grand jury proceeding or during an appeal.
The concept of dual sovereignty recognises that two different governments can prosecute the same person for the same conduct without violating the Double Jeopardy Clause. This was established in the case of United States v. Lanza (1922), where the Supreme Court recognised that the federal government and state governments derive their power from different sources and can therefore deal with the same subject matter within the same territory.
The dual sovereignty doctrine has been applied to permit successive prosecutions by two states for the same conduct and to allow federal prosecution after a conviction in an Indian tribal court for an offence stemming from the same conduct. However, if the two governments are found to be subject to the same sovereign, the Double Jeopardy Clause bars separate prosecutions for the same offence. For example, in Puerto Rico v. Sanchez Valle (2016), the Supreme Court held that separate prosecutions by the United States and Puerto Rico for the same underlying conduct violated the Double Jeopardy Clause because both governments derived their prosecutorial authority from Congress.
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Frequently asked questions
The Fifth Amendment to the United States Constitution contains the Double Jeopardy Clause.
The clause states that "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb". In other words, no person can be convicted twice for the same offence.
The basic concept of the clause is found in English common law, although some scholars suggest that the idea has its origins in Roman law. The first bill of rights that expressly adopted a double jeopardy clause was the New Hampshire Constitution of 1784.
