Guest Essayist: Guest Essayist: Charles E. Rice, Professor Emeritus of Law at the University of Notre Dame

Amendment V:

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 offense 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.


[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.–  U.S. Constitution, Fifth Amendment.

What are the purpose and origin of that constitutional protection?   “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 accordance with this philosophy… a verdict of acquittal is final, ending a defendant’s jeopardy, and even when ‘not followed by any judgment, is a bar to a subsequent prosecution for the same offence.’ … Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous.” Green v. U.S., 355 U.S. 184, 188 (1959).  (citations omitted.)

The importance of the double jeopardy protection is obvious.  But its applications raise technical questions.  For example, as the Supreme Court of the United States ruled, “[I]t is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge…. A defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again…. This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict.  At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where ‘unforeseeable circumstances… arise during [the first] trial making its completion impossible, such as the failure of a jury to agree on a verdict.’…. [A] defendant can be tried a second time for an offense when his prior conviction for that same offense had been set aside on appeal.”   Green v. U.S., 355 U.S. 184, 187-88 (1959) (citations omitted).

The United States Constitution created a system of dual sovereignties, federal and state.  The protections of the Bill of Rights, including the protection against double jeopardy, were originally intended to bind only the federal government, the government of the United States.  Barron v. Baltimore, 32 U.S. 243 (1833).  For protection of their liberties against infringement by state governments, the people relied on guarantees in their state constitutions.  Thus the Supreme Court, in Palko v. Conn., 302 U.S. 319 (1937), declined to apply the double jeopardy protection strictly against the states.  Three decades later, however, the Supreme Court reversed that restriction on account of what it described as the “fundamental” character of that protection: “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…. The fundamental nature of the guarantee against double jeopardy can hardly be doubted.  Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation’s independence….As with many other elements of the common law, it was carried into the jurisprudence of this Country through the medium of Blackstone, who codified the doctrine in his Commentaries…. Today, every State incorporates some form of the prohibition in its constitution or common law.”  Benton v. MD, 395 U.S. 784, 795 (1969) (citations omitted).”

The protection against double jeopardy is limited by the federal character of our constitutional system.  “[A]n 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…. [T]he double jeopardy… forbidden [by the Fifth Amendment] is a second prosecution under authority of the Federal Government after a first trial for the same offense under the same authority.  Here the same act was an offense against the State of Washington, because a violation of its law, and also an offense against the United States under the National Prohibition Act. The defendants thus committed two different offenses by the same act, and a conviction by a court of Washington of the offense against that State is not a conviction of the different offense against the United States and so is not double jeopardy.”  U.S. v. Lanza, 260 U.S. 377, 382 (1922) (citations omitted).

A criminal assault under state law may also be a separate civil rights violation under federal law if the prerequisites of racial or other elements are present.  When, however, two different units of government are subject to the same sovereign, the double jeopardy clause does bar separate prosecutions by them for the same offense.  Waller v. Florida, 397 U.S. 387 (1970) (trial by a municipal court bars a trial for the same offense by a state court.)  The dual sovereignty doctrine has also been applied to permit successive prosecutions by two states for the same conduct.  Heath v. Alabama, 474 U.S. 82 (1985) (where defendant crossed the state line in committing a kidnap murder, he could be prosecuted for murder in both states.)

The clause generally has no application in noncriminal proceedings.  Helvering v. Mitchell, 303 U.S. 391 (1938).  But the protection against double jeopardy can apply to the imposition of sanctions that are civil in form but that constitute “punishment” in their application.  Breed v. Jones, 421 U.S. 519 (1975) (juvenile court proceedings); U.S. v. Halper 490 U.S. 435 (1989) (imposition of a civil penalty under the False Claims Act triggers protection against double jeopardy if the penalty is very disproportionate to compensating the government for its loss and is obviously intended for retributive or deterrent purposes).  Because a main purpose of the double jeopardy clause is the protection 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, an exception to the general rule prohibiting appeals from nonfinal orders.  Abney v. U.S., 431 US 651 (1977)

In summary, the double jeopardy protection is truly fundamental.  That basic character should not be obscured by the necessity of making technical distinctions in its application.  Those distinctions, based on procedural or federalist factors, attest instead to the necessity of preserving the fundamental character of that protection not merely in general but in all of its applications.

Charles E. Rice is Professor Emeritus at the University of Notre Dame law School. His areas of specialization are constitutional law and jurisprudence. He currently teaches “Law and Morality” at Notre Dame.

March 15, 2012 

Essay #19 


Guest Essayist: Charles E. Rice, Professor Emeritus of Law at the University of Notre Dame

Article III, Section 2, Clause 2

2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Exceptions Clause of Article III, Section 2, provides that “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” This was intended, according to Alexander Hamilton, to give “the national legislature… ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove [the] inconveniences” which might arise from the powers given in the Constitution to the federal judiciary.” The Federalist, no. 80.

Prior to 1868, the Supreme Court had no occasion to rule on an act of Congress making an exception to its appellate jurisdiction. But when William McCardle, a Mississippi editor, was imprisoned by the federal reconstruction authorities, he sought a writ of habeas corpus from the federal circuit court, asking that court to rule that his detention was invalid. When this petition was denied he appealed to the Supreme Court under an 1867 statute permitting such appeals. After the Supreme Court heard arguments on the case, Congress repealed that part of the statute which had given the Court jurisdiction to hear such appeals.

The Court dismissed the appeal: “We are not at liberty to inquire into the motives of the legislature,” said the Court. “We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words… without jurisdiction the court cannot proceed at all in any case. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the case. And this is not less clear upon authority than upon principle.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 513-14 (1868).

The 1868 statute upheld in McCardle barred review only under the 1867 statute. In Ex parte Yerger 75 U.S. (8 Wall.) 85 (1868), the Court held that the 1868 statute left untouched the Supreme Court’s power to issue its own writ of habeas corpus to a lower court as provided in the Judiciary Act of 1789. But neither in McCardle nor in Yerger is there any indication that the Court would not have upheld an act withdrawing from the Court appellate jurisdiction in all habeas corpus cases.

In U.S. v. Klein, 80 U.S. (13 Wall.) 128, 145-46 (1872), the only Supreme Court decision striking down a statute enacted under the Exceptions Clause, the Court spelled out one limitation of that clause. Klein, a former Confederate, sued in the Court of Claims to recover for the seizure and sale of his property by Union forces. He had received a presidential pardon for his Confederate activities. If he had not received a pardon, the law would have prevented his recovery. While the appeal of his case was pending before the Supreme Court, a statute was enacted which provided that, whenever a judgment was founded on such presidential pardons, without other proof of loyalty, the Supreme Court shall have no further jurisdiction of the case. The statute further declared that every pardon granted to a suitor in the Court of Claims which recited that he had been guilty of rebellion or disloyalty, shall, if accepted by him in writing without disclaimer of those recitals, be taken as conclusive evidence of such act of rebellion or disloyalty and his suit shall be dismissed. While declaring the statute unconstitutional, the Supreme Court stated that Congress has power to deny appellate jurisdiction “in a particular class of cases:”

If this act … simply denied the right of appeal in a particular class of cases, there could be no doubt that it must be regarded as an exercise of the power of Congress to make “such exceptions from the appellate jurisdiction” as should seem to it expedient.

The statute in Klein attempted to dictate to the Court how it should decide a class of cases under the guise of limiting its jurisdiction. The Court lost jurisdiction only when the Court of Claims judgment was founded on a particular type of evidence, a pardon. The statute further prescribed that the recitals in the pardon of acts of rebellion would be conclusive proof of those acts. “What is this,” said the Court, “but to prescribe a rule for the decision of a cause in a particular way?” The Klein statute intruded also upon the President’s pardoning power by attempting “to deny to pardons … the effect which this court had adjudged them to have.” In these respects the statute in Klein was different from a statute withdrawing appellate jurisdiction over a class of cases.

Since Klein, the Supreme Court has not defined any further limits to the Exceptions Clause. But there are limits. Congress, for example, could not withdraw from the Supreme Court appellate jurisdiction, “in any case where a Baptist shall be” appellant. This would be unconstitutional, not because of a limitation in the Exceptions Clause, but because of a prohibition in the First Amendment. The religion of the appellant has nothing to do with the authentic nature of the case. The fact that Congress is forbidden by the First Amendment to prohibit appeals by Baptists, Jews, etc., does not mean that there is a restriction on Congress’ power to exclude classes of cases, as determined by the nature of the case, from the appellate jurisdiction of the Supreme Court as well as from the jurisdiction of the lower federal courts.

If a statute removed appellate jurisdiction from the Supreme Court, in, for example, “all cases but patent cases,” such would not be an exception but rather a wholesale obliteration of appellate jurisdiction. On the other hand a surgical removal of appellate jurisdiction in a class of cases, such as prayer in public schools, would be permitted under the Exceptions Clause. Such a withdrawal of jurisdiction would not change the Constitution, as would a constitutional amendment. Unlike a constitutional amendment, a withdrawal of appellate jurisdiction in school prayer cases would not reverse the Supreme Court’s rulings on school prayer. Some state courts might follow those decisions as the last authoritative Supreme Court expression on the subject. Other state courts might disregard the Supreme Court precedents and decide in favor of school prayer once the prospect of reversal by the Supreme Court had been removed.

An argument that fundamental rights should not vary from state to state begs the question of whether there is a fundamental right to uniformity of interpretation by the Supreme Court on every issue involving fundamental rights. The Exceptions Clause, an important element of the system of checks and balances, grants a wide discretion to Congress. There is, in short, a fundamental right to have the system of checks and balances maintained in working order. Without that system, other rights, such as speech, privacy, and free exercise of religion, could be reduced to nullities. This right to a preservation of the system of checks and balances is itself one of the most important constitutional rights.

Charles E. Rice is Professor Emeritus at the University of Notre Dame law School. His areas of specialization are constitutional law and jurisprudence. He currently teaches “Law and Morality” at Notre Dame.