Double Jeopardy and the Supreme Court

The Fifth Amendment to the U.S. Constitution states, in part, that "No person ... shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The Supreme Court has, for the most part, treated this concern seriously.

United States v. Perez (1824)

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In the Perez ruling, the Court found that the principle of double jeopardy does not prevent a defendant from being put on trial again in the event of a mistrial.

Blockburger v. United States (1832)

This ruling, which never specifically mentions the Fifth Amendment, was the first to establish that federal prosecutors may not violate the spirit of the double jeopardy prohibition by trying defendants multiple times, under separate statutes, for the same offense.

Palko v. Connecticut (1937)

The Supreme Court declines to expand the federal prohibition on double jeopardy to the states, an early - and somewhat characteristic - rejection of the incorporation doctrine. In his ruling, Justice Benjamin Cardozo writes:

We reach a different plane of social and moral values when we pass to the privileges and immunities that have been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment by a process of absorption. These, in their origin, were effective against the federal government alone. If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor Justice would exist if they were sacrificed. This is true, for illustration, of freedom of thought, and speech. Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations, a pervasive recognition of that truth can be traced in our history, political and legal. So it has come about that the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states, has been enlarged by latter-day judgments to include liberty of the mind as well as liberty of action. The extension became, indeed, a logical imperative when once it was recognized, as long ago it was, that liberty is something more than exemption from physical restraint, and that, even in the field of substantive rights and duties, the legislative judgment, if oppressive and arbitrary, may be overridden by the courts …
Is that kind of double jeopardy to which the statute has subjected him a hardship so acute and shocking that our polity will not endure it? Does it violate those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions"? The answer surely must be "no." What the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him, we have no occasion to consider. We deal with the statute before us, and no other. The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on until there shall be a trial free from the corrosion of substantial legal error. This is not cruelty at all, nor even vexation in any immoderate degree.

Cardozo's subjective incorporation of double jeopardy would stand for more than thirty years, in part because all state constitutions also included a double jeopardy statute.

Benton v. Maryland (1969)

In the Benton case, the Supreme Court finally applied federal double jeopardy protection to state law.

Brown v. Ohio (1977)

The Blockburger case dealt with situations in which prosecutors attempted to break a single act up into several categorical offenses, but prosecutors in the Brown case went a step further by chronologically dividing a single offense - a 9-day joyride in a stolen car - into separate offenses of car theft and joyriding. The Supreme Court didn't buy it. As Justice Lewis Powell wrote for the majority:

After correctly holding that joyriding and auto theft are the same offense under the Double Jeopardy Clause, the Ohio Court of Appeals nevertheless concluded that Nathaniel Brown could be convicted of both crimes because the charges against him focused on different parts of his 9-day joyride. We hold a different view. The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.

This was the last major Supreme Court ruling that expanded the definition of double jeopardy.

Blueford v. Arkansas (2012)

The Supreme Court was noticeably less generous in the case of Alex Blueford, whose jury had unanimously acquitted him on capital murder charges before hanging on the issue of whether to convict him of manslaughter. His attorney argued that prosecuting him on the same charges again would violate the double jeopardy provision, but the Supreme Court held that the jury's decision to acquit on first-degree murder charges was unofficial and did not constitute a formal acquittal for double jeopardy purposes. In her dissent, Justice Sonia Sotomayor interpreted this as a failure of resolve on the part of the Court:

At its core, the Double Jeopardy Clause reflects the wisdom of the founding generation … This case demonstrates that the threat to individual freedom from reprosecutions that favor States and unfairly rescue them from weak cases has not waned with time. Only this Court's vigilance has.

The circumstances under which a defendant may be re-prosecuted, following a mistrial, is the unexplored frontier of double jeopardy jurisprudence. Whether the Supreme Court will retain the Blueford precedent or ultimately reject it (just as it had rejected Palko) remains to be seen.

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Head, Tom. "Double Jeopardy and the Supreme Court." ThoughtCo, Aug. 27, 2020, Head, Tom. (2020, August 27). Double Jeopardy and the Supreme Court. Retrieved from Head, Tom. "Double Jeopardy and the Supreme Court." ThoughtCo. (accessed March 27, 2023).