Abstract
The Double Jeopardy clause in the 5th amendment of the US constitution provides, "No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb." The double jeopardy clause is founded on policy considerations sought to prevent the government use of its vast resources to bend the law, protect the accused from the emotional, financial, and social burdens from cumulative trials, preserve the finality and integrity of judgments, restrict the charging powers of the prosecution, and remove judicial discretion to impose unlawful multiple judgments. Application of double jeopardy clause has attracted significant controversy in the US due to existence of dual sovereignties at the federal and state government levels in respect to commission of the offense. The outcome is contradictions that have prompted calls for compromise through an approach that both protects the accused and caters for the government interests, a potential recipe for an unending legal debate.
Introduction
Prosecuting lawyers often pride themselves in building watertight cases, but such is not the case always as the defense may exploit legal loopholes or inconsistencies in evidence to outwit the prosecution in a court battle. In either case, the accused may be acquitted or convicted, and after sometime time, which may take years, new evidence emerges that the prosecution considers critical in challenging the acquittal or conviction. Under the circumstances, the accused has a right to be protected from undergoing a repeat of the trial. Such a right is exercised through ‘Double Jeopardy’, which the legal dictionary defines as “ a second prosecution for the same offense after acquittal or conviction or multiple punishments for the same offense.” Prohibition of double jeopardy seeks avoid unconstitutional double trial and double conviction rather than double punishment. Heralded as the oldest legal concept in Western civilization, double jeopardy is enshrined in the 5th amendment of the US constitution, and protection of the accused is provided for by each of the 50 states through their own constitution, statutes, and common law. Examination of the concepts behind double jeopardy and its practical implications is critical to recognizing and understanding its significance in the legal field.
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Policy Considerations Governing the Doctrine of Double Jeopardy
Protection against double jeopardy is regarded as a universal Maxim of the common law. The existence of laws means that they can be broken, and the doctrine of incorporation is crucial in application of the Bill of Rights to state and federal governments. The ideology is embodied in one of the policies underpinning double jeopardy, which requires prevention of the government’s use of its superior resources to inflict injustices and erroneously convict innocent civilians. Carusona (1977) argued that federal government appeals in criminal cases are driven by express statutory authorization. The law authorizes the US federal government to appeal against any criminal cases except in instances where further prosecutions are prohibited through double jeopardy. When allowed to exercise authority without such a limiting clause the government can overstep its mandate as evidenced through all manner of appeals that exhaust all statutes not covered by double jeopardy in conducting retrials.
Sigler (1969) argued that the development of legal and social policies where double jeopardy is concerned must account for the grossly unfair role of a second prosecution in relation to emotional, financial, and social impacts on the accused. According to Levmore and Porat (2011), reprieved for defendants under the circumstances can be obtained through beneficial sorting of defendants who oblige to waive their double jeopardy protection, informed by the need to reduce prosecutorial investment. While the option may be attractive to innocent defendants, it is not a guarantee of emotional, financial, or social reprieve that the double jeopardy clause seeks to protect, and serves as one of its policies. The implication of another policy consideration of double jeopardy is captured in a case cited in Dawson (1992), Bartkus vs Illinois, where after being acquitted of robbing a federally insured bank by the federal jury, Bartkus underwent reprosecution under the robbery statute of Illinois state to which the double jeopardy clause did not apply, and was eventually convicted to life imprisonment. Under the circumstances, the prosecution exploited the dual sovereignty loophole by bypassing the popular sovereignty policy consideration of double jeopardy that dictates for the preservation of the finality and integrity of criminal proceedings, which would be compromised in instances where the government opts to ignore unsatisfactory judicial outcomes.
In reference to the case Bartkus vs Illinois, Dawson observed that the federal government did not only instigate new criminal proceedings against the accused, but also had autonomous control in the charging process as evidenced by the postponement of the trial of all accomplices until they testified against the accused in court. The double jeopardy clause operates on a policy that seeks to trim prosecutorial powers in the charging process to ensure that backhanded approaches are not employed to bring the accused to a second trial through manipulation of the charging process. When left unchecked, the courts may play a role in passing judgment that are contradictory to the law or are not recognized by it. Therefore, the double jeopardy clause ensures elimination of judicial discretion in imposing of unlawful cumulative judgments.
Implications of Double Jeopardy and Contradictions in Execution
Dawson (1992) argues that the double jeopardy clause operates through the doctrines of popular sovereignty and dual sovereignty, the former implying application at the federal level and the latter at state level. Such was the complex nature of the case Bartkus vs Illinois in which while affirming conviction of the accused, based it on the grounds that the double jeopardy clause did not apply to the states, and in cases where it did, offenses against tow sovereignties are not regarded as the ‘same offense’ for purposes of double jeopardy. The principles on which double jeopardy are founded are clear, but it is evident that application of the clause continues to elicit legal debates in regards to when the accused should be fully protected and when they should not. The dual nature of execution of clause at federal and state levels in the US can be viewed a potential loophole that can be exploited by the government machinery. It violates a number of policy considerations in the development of the double jeopardy clause.
The situation is compounded by perceptions that the Supreme Court’s adoption of a narrow definition of what constitutes the same offense, has left the government with a lot of maneuverability to bring successive prosecutions in blatant violation of the clause (Poulin, 2003). As a result, proposals have been advanced advocating for a more effective double jeopardy protection approach that also accounts for legitimate government interests. Nevetheless, it is imperative to recognize that the protection of the accused from successive prosecution represents an uneasy equilibrium. Instances cited in Levmore and Porat (2011) include after an overwhelming vote for acquittal that offers no protection for the accused, and when the judge errs in their judgment in finding that the defendant cannot be tried again. However, worth noting is that such doctrinal developments and anomalies represent contradictory aspect of the law. The US maintains the jeopardy clause in full rigor, however, the federal government has unlimited discretion in some instances in proffering similar charges against the accused for a retrial. The most important aspect for consideration is that any retrial violates the policy underlying the double jeopardy clause; as a result, modern courts tend to scrutinize the rationales for justification of a retrial (Carusona, 1977).
Protection of the accused against a retrial for the same offense is critical in upholding the rule of law by avoiding prolonged court battles that may be emotionally, financially, and socially draining to the defendants. The protection, provided for in a clause in the 5th amendment of the US constitution is maintained with rigor because it embodies aspects in the Bill of Rights in relation to protection of the accused. However, criticism has been directed at the clause informed by the argument that it operates on popular and dual doctrines, the latter being instrumental in its implementation. In most cases, the federal government seeks to reopen a successive trial if it is unsatisfied by the outcomes of the initial judgment. As a result, proposals have been advanced advocating for an approach that would ensure protection of the accused while at the same time addressing interests of the government. Such calls are informed by the deficient definition of the Supreme Court as to what constitutes the ‘same offense.’
References
Carusona, P. A. (1977). Double Jeopardy: The prevention of multiple prosecutions. Chi.-Kent L. Rev. , 54 , 549.
Dawson, M. A. (1992). Popular sovereignty, Double Jeopardy, and the dual sovereignty Doctrine. The Yale Law Journal , 102 (1), 281-303.
Levmore, S., & Porat, A. (2011). Bargaining with Double Jeopardy. The Journal of Legal Studies , 40 (2), 273-293.
Poulin, A. B. (2003). Double Jeopardy protection from successive prosecution: A Proposed Approach. Geo. LJ , 92 , 1183.
Sigler, J. A. (1969). Double Jeopardy: The Development of a Legal and Social Policy . Cornell University Press.
