Navigating the Trunks and Spars

George C. Thomas' book on Double Jeopardy, the first on this subject in over a quarter century, has the potential to play a key role in reviving a serious and sustained discussion of double jeopardy jurisprudence. Transformations in the substantive criminal law and criminal procedure areas over the last forty years, such as legislatures' penchant for enacting duplicitous statutes proscribing identical misconduct, and newly enacted statutes imposing serious sanctions in civil proceedings, make a renewed focus on the Double Jeopardy Clause of the Fifth Amendment absolutely critical. While Professor Thomas does a brilliant job of presenting the competing double jeopardy positions, describing the historical context of the Clause, and criticizing the Supreme Court's inconsistent opinions in this area, he ultimately settles upon an interpretation of same offense and twice put in jeopardy that is not only unhelpful in resolving current double jeopardy crises, but that actually has the potential to wrest all meaning from the Clause. Thomas' thesis is that since the legislature creates statutory criminal blameworthiness and the procedures for determining that blameworthiness, the legislature is the ultimate source of guidance on when offenses are the same and when the first jeopardy has ended. If the legislature tells us that identical statutes are different, then a defendant may suffer successive prosecutions for them. If the legislature tells us that a verdict is not yet final, the state can appeal. Because the legislature so rarely speaks clearly on these issues, Thomas offers a set of presumptions to assist the court in divining legislative intent on these two issues. Thomas argues that his interpretation most faithfully tracks the text of the Clause and the common law conception of double jeopardy, advances the policy preferences underlying the Clause, and produces hard-edged answers to double jeopardy questions that can guide the courts. I argue that an interpretation of the clause that forces the judicial branch to independently define offense and jeopardy is necessary to foster the only sensible purpose underlying the Clause - protecting defendants from harassing multiple convictions and prosecutions by mandating finality of factual findings of blameworthiness. Neither originalism nor historical practice is particularly helpful in answering double jeopardy questions. Framers' and ratifiers' intent regarding the clause is essentially non-existent. Moreover, due to the scarcity of felonies at common law, colonial judges rarely confronted the issue of whether offenses were the same, much less whether sameness was determined by a legislature or a court. If the clause had any meaning at all when ratified, it must have meant at least that the government could not recharge a defendant with theft because it was dissatisfied with an earlier acquittal on that identical theft. Yet this is precisely what the government can do today as a result of the plethora of duplicitous and overlapping criminal statutes, if we accept either Thomas' interpretation of the clause or the present same statutory elements test. I suggest that a conduct-based same offense test is necessary to prevent legislatures from authorizing, and prosecutors from bringing, repeated prosecutions because they are dissatisfied with the result of an initial prosecution, or because they desire a test-run, rather than because the defendant has committed misconduct or caused harm that was not accounted for in an initial prosecution.

The principle of double jeopardy, which is fundamental to criminal jurisprudence, aims to keep persons from being prosecuted or penalized twice for the same offense. Although double jeopardy is a common legal doctrine, there are significant variations in its use and interpretation across legal systems. Ghana, the United States of America (US), and the United Kingdom (UK) are the three nations whose perspectives on the double jeopardy rule are compared in this study. By analyzing similarities, differences, and core concepts, this research seeks to provide insights into the use of double jeopardy in diverse legal contexts and its implications for the defense of individual human rights. There are parallels and divergences among the double jeopardy legal systems of the United States, the United Kingdom, and Ghana. The Fifth Amendment to the US Constitution forbids someone from being "twice put in jeopardy of life or limb" for the same offense, upholding the concept of double jeopardy. While double jeopardy safeguards are incorporated into Ghana's 1992 Constitution, the UK has codified the rule of double jeopardy in laws like the Criminal Justice Act 2003. Notwithstanding these differences, all three countries acknowledge the significance of protecting people from arbitrary prosecution and guaranteeing justice in the legal system. The double jeopardy rule's exclusions and restrictions represent a noteworthy area of difference. In the USA, retrials are allowed under certain circumstances due to exceptions such as mistrials, hung juries, and new evidence. Ghana might not be bound by customs or legal interpretations, but the UK permits retrials in cases requiring new, solid evidence or tainted findings. These variances represent the unique legal practices and cultural contexts of each jurisdiction, impacting the interpretation and application of double jeopardy rules. In Ghana, the UK, and the USA, double jeopardy is applied differently in practice. Although all three nations recognize the notion of double jeopardy, their legal systems may differ in specific legal procedures and exceptions. A body of precedent pertaining to double jeopardy has emerged from major cases in the United Kingdom, pivotal decisions in Ghana, and decisions made by the United States Supreme Court. These variances represent the unique legal practices and cultural contexts of each jurisdiction, impacting the interpretation and application of double jeopardy rules.

George C. Thomas' book on Double Jeopardy, the first on this subject in over a quarter century, has the potential to play a key role in reviving a serious and sustained discussion of double jeopardy jurisprudence. Transformations in the substantive criminal law and criminal procedure areas over the last forty years, such as legislatures' penchant for enacting duplicitous statutes proscribing identical misconduct, and newly enacted statutes imposing serious sanctions in civil proceedings, make a renewed focus on the Double Jeopardy Clause of the Fifth Amendment absolutely critical. While Professor Thomas does a brilliant job of presenting the competing double jeopardy positions, describing the historical context of the Clause, and criticizing the Supreme Court's inconsistent opinions in this area, he ultimately settles upon an interpretation of same offense and twice put in jeopardy that is not only unhelpful in resolving current double jeopardy crises, but that actually has the potential to wrest all meaning from the Clause. Thomas' thesis is that since the legislature creates statutory criminal blameworthiness and the procedures for determining that blameworthiness, the legislature is the ultimate source of guidance on when offenses are the same and when the first jeopardy has ended. If the legislature tells us that identical statutes are different, then a defendant may suffer successive prosecutions for them. If the legislature tells us that a verdict is not yet final, the state can appeal. Because the legislature so rarely speaks clearly on these issues, Thomas offers a set of presumptions to assist the court in divining legislative intent on these two issues. Thomas argues that his interpretation most faithfully tracks the text of the Clause and the common law conception of double jeopardy, advances the policy preferences underlying the Clause, and produces hard-edged answers to double jeopardy questions that can guide the courts. I argue that an interpretation of the clause that forces the judicial branch to independently define offense and jeopardy is necessary to foster the only sensible purpose underlying the Clause - protecting defendants from harassing multiple convictions and prosecutions by mandating finality of factual findings of blameworthiness. Neither originalism nor historical practice is particularly helpful in answering double jeopardy questions. Framers' and ratifiers' intent regarding the clause is essentially non-existent. Moreover, due to the scarcity of felonies at common law, colonial judges rarely confronted the issue of whether offenses were the same, much less whether sameness was determined by a legislature or a court. If the clause had any meaning at all when ratified, it must have meant at least that the government could not recharge a defendant with theft because it was dissatisfied with an earlier acquittal on that identical theft. Yet this is precisely what the government can do today as a result of the plethora of duplicitous and overlapping criminal statutes, if we accept either Thomas' interpretation of the clause or the present same statutory elements test. I suggest that a conduct-based same offense test is necessary to prevent legislatures from authorizing, and prosecutors from bringing, repeated prosecutions because they are dissatisfied with the result of an initial prosecution, or because they desire a test-run, rather than because the defendant has committed misconduct or caused harm that was not accounted for in an initial prosecution.

A double jeopardy analysis of the Medgar Evers murder case

Call me absolutist. To me, Stacey Koon,l Lemrick Nelson,2 and Paul Hill3 look alike. Each of these men was twice put jeopardy for the something the Double Jeopardy Clause4 plainly prohibits. The Supreme Court agrees that these cases are alike. The Court's dual sovereignty doctrine, which holds that prosecutions by two different sovereigns-either state or federal governments-can never be for the same offense, would permit reprosecution all three cases.5 Akhil Amar and Jonathan Marcus, rethinking double jeopardy in the wake of the Rodney King affair6 seek to mediate between the Supreme Court's fiction-based approach and my Hugo Black-like insis-

The core proposition of the Fifth Amendment’s Double Jeopardy Clause is as intuitive as it is straightforward. After all, if a state could prosecute someone despite her previous conviction or acquittal, then the scope of punishment would be unlimited and its threat unending—the sort of proposition only a tyrant could love. Yet, in Gamble v. United States, the Supreme Court once again blessed a dual sovereignty exception that permits just such duplicative prosecutions. We hardly are the first to question this rule, but we submit the Court’s most recent primary mistakes were two. First, the Court began from a conception of constitutional community contrary to our Framers’ own; and when one reaches for a grab bag of history, jurisprudence, and commentary, that starting point makes a difference. Second, the Court ignored both the logic of America’s founding and recent double jeopardy jurisprudence, both of which strongly counsel against the exception in the federal-state context. We hope that a future Court will be more receptive to the nation’s constitutional structure and to the genuine but limited needs of criminal justice.

Abstract: In Gamble v. United States, the defendant questioned the constitutionality of the dual sovereignty doctrine under the double jeopardy clause. In its judgment, delivered on 17 June, 2019, the United States Supreme Court upheld the application of the dual sovereignty doctrine, according to which different sovereigns may prosecute an individual without violating the double jeopardy clause if the individual's act infringed the laws of each sovereignty. This comment aims to address the reasoning of the Supreme Court and the rationale of the dual sovereignty doctrine, suggesting the convenience and necessity of a further study on its limits and the possible safeguards against potential abuses.

Gamble v. United States is an invitation for the Supreme Court to reconsider the rule in double jeopardy law, which permits federal and state authorities to engage in parallel or successive prosecutions of the defendant for the offense. In this amicus brief — in support of petitioner — we urge the Court to abolish the dual sovereignty rule. The argument develops in four parts. First, we show that the rule clashes with the original understanding of the Double Jeopardy Clause, especially in light of its drafting history. Second, we argue that under the Court's own test (reaffirmed as recently as the 2015 term) for determining which sovereigns are, in fact, dual, the sovereignty of the federal government is best understood as derivative of — not separate from — the sovereignty of the states. Third, we explain why every policy rationale behind double jeopardy protection counsels against the dual sovereignty rule, particularly given the existence of other doctrines (most notably, the Blockburger same offense rule) that already limit the scope of double jeopardy protection in practice. Finally, we suggest that the key precedents appearing to bolster the dual sovereignty approach are, on scrutiny, weaker than many have assumed — and in some instances, may not support the rule at all.

A potential hardship facing citizens of federal states is the possible application of two sets of penal laws to the same conduct. Several recent decisions of the Supreme Court of Canada,' which have upheld the validity of provincial legislation in spite of the existence of federal laws covering similar activity, increase the danger of multiple prosecutions and convictions and thus increase the need for a careful analysis of this area.2 It will be argued in this article that the rules against double jeopardy (the special pleas of autrefois acquit and convict, issue estoppel, the rule against unreasonably splitting a case, and the rule against multiple convictions) should apply with full force and effect to prosecutions for violations of federal and provincial laws.

This legal position paper discusses the current U.S. Supreme Court case law on double jeopardy as well as the relevant Indian criminal law rulings, culminating with the Oliphant/Duro/Lara trilogy.

This short book chapter analyses the U.S. Supreme Court's recent decision in Gamble v. United States (2019), which decided not to overrule 170 years of precedent allowing the sovereigns to both prosecute an for the same crime. Here, the feds prosecuted Gamble as a felon-in-possession after Gamble had pled guilty to that same offense under State law. He received an additional three years in prison for the federal conviction, consecutive to a year in Alabama. Justice Alito wrote for 7 Justices that the separate sovereigns exception to the Double Jeopardy Clause is backed by reasonable policy as well as precedents dating back to at least 1852. Interestingly, Justices Ginsburg and Gorsuch, ideological opposites to some extent, both dissented, and wrote that individual liberty should prevail over stare decisis. Doctrinal thoughts on three issues are offered at the end.

Sexually Violent Person (SVP) commitment statutes provide for indeterminate civil confinement of certain sex offenders after completion of their criminal sentences. In the United States, SVP laws raise important concerns relating to due process, ex post facto claims, and protection against double jeopardy. However, it is unclear to what extent current legislation addresses or neglects these issues. Without a systematic review of SVP legislation and related case law, it remains unknown to what degree U.S. states have incorporated different strategies to protect individual rights outlined by the U.S. Supreme Court. In this study, SVP statutes from each U.S. state, the federal government, and the District of Columbia, along with related case law, were examined to evaluate (1) the requirements of SVP confinement, (2) the procedures by which SVP hearings occur, and (3) the degree to which the requirements enumerated by the U.S. Supreme Court have been followed. Although nearly half of all states have SVP statutes, findings reveal that statutes differ considerably regarding standards of proof, commitment procedures, appeals standards, definitions of important terms, and procedural safeguards. Moreover, case law provides important information on how SVP laws actually operate. Findings are discussed in light of psychological, legal, and policy implications.

Children are the newest claimants to constitutional freedoms. Their rights are being asserted with increasing frequency in expanding contexts. And the courts are listening. Since 1943 when the Supreme Court ruled that school children had an interest in intellect and spirit which protected them against having to salute the flag in violation of their religious beliefs,' constitutional rights of minors have been steadily enlarged. It is now acknowledged that children have protected interests in freedom of expression (Tinker, 1969), privacy (Planned Parenthood, 1976; Bellotti, 1976), procedural due process in criminal (McKiver, 1971; In re Winship, 1970; In re Gault, 1967) and non-criminal (Goss, 1975) settings, and freedom from double jeopardy (Breed, 1975). Most of the disputes involving children have been between children and the government-whether, for example, school officials may prohibit students from wearing arm bands to class to protest American involvement in the Vietnam War (Tinker, 1969), or whether children must be given the same protection as adults when they are charged with violations of the law (In re Gault, 1967). The decisions which expanded juvenile rights were thus unencumbered by conflicting parental rights to control of children. In that sense, and in retrospect, the decisions were relatively easy ones to make, involving simply the application of familiar constitutional freedoms, well developed in application to adults, to children in analogous contexts. Defining children's constitutional freedoms is vastly more difficult where parental rights (or interests) are also asserted. It is simply not clear in such cases where traditional libertarian allegiances should lie, for emerging children's rights have entered a crowded area of the stage, colliding with other carefully nurtured rights and interests: particularly those of parents as the preferred managers of their children's development, and familial interests in autonomy and privacy.2 The constitutional rights of parents were acknowledged long before those of children, and the Supreme Court cases defining them are now classic (Meyer, 1923; Pierce, 1923; Prince, 1944; Stanley, 1972; Wisconsin, 1972). The Court has spoken of the rights of parents in language usually reserved for rights viewed as basic or fundamental-rights *Walter H. Bennett, Jr., is a member of the North Carolina Bar and practices law in Charlotte, North Carolina, with the firm of Casey, Daly & Bennett, P. A. Laughlin McDonald is a member of the South Carolina Bar and the Georgia Bar and is Director, Southern Regional Office, American Civil Liberties Union Foundation, Inc., 52 Fairlie Street, N.W., Suite 355, Atlanta, Georgia 30303.

When a disability is imposed because of a criminal conviction, it makes a great deal of difference whether it is categorized as a civil regulation, which governments may impose rather freely under the police power, or punishment which is subject to numerous restrictions under the Bill of Rights, such as the prohibitions on double jeopardy and ex post facto laws, and the requirements of jury trial, counsel, and proof beyond a reasonable doubt. This essay analyzes the first major Supreme Court case to explore the distinction, Hawker v. New York, decided in 1898, which dealt with a criminal prosecution of an abortion doctor. A majority of the Supreme Court held that denial of the right to practice medicine to those convicted of abortion was not punishment, it was merely a legislative judgment that persons who engaged in illegal behavior had bad moral character and thus were not entitled to a medical license. The sanction was based on the underlying conduct rather than the conviction itself; the conviction was merely a method of proof. Accordingly, the Court reasoned, imposing the disability on Hawker after his sentence had been fully served did not violate the ex post facto clause. This essay argues that the distinction Hawker attempted to draw quickly evaporated. The New York legislature established a regime of administrative disciplinary hearings, and granted medical administrators the discretion to impose whatever sanctions were appropriate, including temporary suspension rather than license revocation, on doctors found to have performed unlawful abortions in such hearings. Thus, conviction rather than conduct was the critical factor. This essay concludes by arguing that Hawker was on to something. If disqualification is genuinely based on conduct, it is likely to have a regulatory purpose; an applicant denied a position at a bank because of an embezzlement conviction is not being criminally punished. On the other hand, if a sanction is applied exclusively to those convicted of particular conduct, and not to those who admit the conduct, or are proved to have engaged in the conduct in civil, disciplinary or administrative proceedings, the legislative motivation may be punitive. For example, if an applicant for a medical license is automatically denied because of a conviction for tax evasion, when an applicant who admitted liability in a civil case charging precisely the same conduct could get a license, the automatic denial looks like punishment.

This article explores the case law of the European Court of Human Rights, the European Court of Justice and the US Supreme Court on the fundamental rights of commercial companies. The rights considered include property, the privilege against self-incrimination, freedom of speech, double jeopardy, the right to make political donations, and the freedom of religion. The article highlights the dangers of taking the fundamental rights of companies too far, as has recently occurred in the US; and it advocates a cautious and coordinated approach to this delicate issue, which has become increasingly important on both sides of the Atlantic.