Double Jeopardy Law Made Simple
![handle is hein.journals/ylr106 and id is 1825 raw text is: Essay
Double Jeopardy Law Made Simple
Akhil Reed Amar'
[N]or shall any person be subject for the same offence to be twice
put in jeopardy of life or limb ....'
Modem Supreme Court case law is full of double jeopardy double talk.
Consider first the poetic phrase life or limb. It seems sensible enough to read
these words as a grim and graphic metaphor for criminal sanctions-and such
an approach runs deep in American case law, to say nothing of English
literature. This reading also makes the most sense of the precise location of the
Fifth Amendment Double Jeopardy Clause, wedged as it is between two other
provisions-the Grand Jury and Self-Incrimination Clauses-that apply only
to criminal offenses. But can life or limb be stretched to encompass some
civil suits involving only money? Today's Supreme Court seems to think so,:
but how can this be squared with the text and structure of the Fifth
Amendment? The Fifth Amendment Due Process Clause clearly applies to civil
cases, but isn't its life, liberty, or property language obviously
contradistinguished from the more narrow life or limb language of the Fifth
Amendment Double Jeopardy Clause?
Consider next a far more egregious example of modem double jeopardy
double talk. The Double Jeopardy Clause speaks of the 'same offense, and
yet the Court casually applies the Clause to offenses that are not the same but
obviously different. Premeditated murder is not the same as attempted murder
or manslaughter; armed robbery is not the same as robbery; and yet under the
so-called Blockburger test, the Court generally treats a greater offense as the
same as each of its logically lesser-included offenses. But on rare occasions,
Southmayd Professor of Law, Yale Law School.
1. U.S. CONST. amend. V.
2. See. e.g., United States v. Ursery, 116 S. Ct. 2135. 2142-47 (1996): see also Depar ment of
Revenue v. Kurth Ranch, 114 S. Ct. 1937 (1994); United States v. Halper. 490 U.S. 435 (1989).
3. See Blockburger v. United States, 284 U.S. 299 (1932). In fact. the Blockburger case itself does not
quite stand for the global test of sameness that later courts have attrbuted to it. See infra note 38 For an
example of a modem-day application of the so-called BIockburger test, see. e.g.. Brown % Ohio, 432 U S.
1807](ViewImageLocal?handle=hein.journals/ylr106&div=58&collection=&method=preview&ext=.png&size=3)
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Double Jeopardy Law Made Simple
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