The Supreme Court ruled that the protection against double jeopardy, guaranteed at the federal level, also applied at the state level. The decision was one of a series that extended most of the provisions contained in the Bill of Rights to apply to the states.
Protection against double jeopardy is widely regarded in Western culture as one of the most basic of an individual’s legal rights, equal in importance to the right to a trial by jury. The term refers to the principle that no person should be at risk twice—that is, be put in “double jeopardy”—for one alleged criminal act. So basic is this concept that its roots can be traced back to Greek, Roman, and canon law. In the United States, this principle is incorporated in the Fifth Amendment to the Constitution, stating that no one is to “be subject for the same offence to be twice put in jeopardy of life and limb.”
Theoretically, this protective principle is a humane acknowledgment of the discrepancy in power between an ordinary citizen and the government. Private individuals, with limited resources, are protected from harassment by the ubiquitous and mightier powers of the government, which, with its greater resources, could continue to investigate and charge any person for any crime any number of times over an indefinite period were it not for this protection against double jeopardy. This protection also allows an accused person to be given a final judgment, eliminating the anxiety and uncertainty that could be caused if an accusation of criminal wrongdoing could be levied repeatedly. Finally, it acknowledges that the verdict delivered after the due process of the law must be allowed to stand, even if the evidence would seem to indicate a different result.
In practice, such a balance between the individual’s rights and the government’s need to maintain law and order is difficult either to identify clearly or to administer consistently. It is an area of the law so fraught with practical problems that several aspects of the definition of double jeopardy have had to be tested and judged repeatedly. So many issues have had to be determined on a case-by-case basis in court that the set of standards has been left unclear.
Understanding the significance of any one specific case, therefore, requires keeping in mind that the practice of double jeopardy has evolved over many years. In the United States, history illustrates the power of the Supreme Court in directing the course of human rights. From the beginning, for example, there arises the question of when an accused person might be placed in double jeopardy. Logically, it would seem clear that a person who has been tried initially and found not guilty could claim “double jeopardy” if he or she were to be tried again. It took a Supreme Court decision in 1978 (Crist v. Bretz)
Other seemingly basic definitions have been subject to court rulings. Legal and scholarly debate has tried, for example, to determine what constitutes the “same offense,” because one criminal act could be construed to break several laws. The Court has ruled that the same criminal action could involve several different offenses, so that a person could be charged several times and not be in double jeopardy.
One of the major decisions in the history of double jeopardy protection and the United States Supreme Court came in 1969, in the case of Benton v. Maryland. Appreciation of the significance of this one specific decision requires understanding of an old conceptual problem, that of dual sovereignty. In the United States, the Constitution and the first ten amendments to it—the Bill of Rights—were framed with the federal government in mind. While an individual is protected against the danger of being tried twice for the same offense by a federal prosecutor, if the same criminal offense also breaks a state law, a person may be tried by the state. Many but not all states had evolved their own codes protecting an individual from double jeopardy, but the standards tended to differ from state to state and were not always consistent with federal standards. In an important case in 1937, Palko v. Connecticut,
In August, 1965, John Dalmer Benton was tried in the state of Maryland on charges of larceny and burglary. He was convicted of burglary, but the jury found him not guilty of the larceny charges. Benton was given a ten-year sentence. He filed an appeal in the Maryland Court of Appeals. Meanwhile, in another case, the same court had ruled that the section of the state constitution requiring jurors to swear their belief in the existence of God was invalid. Because the jurors in Benton’s trial had been asked to so swear, he was given the option of asking for a reindictment and retrial, which he did. Benton appealed the charge of larceny, however, claiming that he had been found not guilty of that charge in the first trial and to be tried again would put him in double jeopardy. This appeal was denied, and Benton was tried again on both burglary and larceny charges.
Ironically, this time the jury found him guilty of both offenses, and he was given fifteen years for burglary and five years for larceny. Benton’s case was appealed to the Maryland Court of Special Appeals on the double jeopardy claim, but it was rejected. When the case reached the Supreme Court in 1968, the Court decided to hear the case to the extent of asking two questions. First, is the double jeopardy clause of the Fifth Amendment applicable to the states through the Fourteenth Amendment? Second, if double jeopardy applies to states as well as to federal prosecutions, was Benton put in double jeopardy?
On the merits of the case, the Supreme Court ruled, on June 23, 1969, that the double jeopardy clause of the Fifth Amendment is applicable to the states through the Fourteenth Amendment. Benton’s conviction for larceny was reversed. Writing the majority opinion for the Court, Justice Thurgood Marshall rejected the opinion of the Palko case that basic constitutional rights could be denied by the states as long as the totality of the circumstances does not result in a denial of “fundamental fairness.” Instead, 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. Justices John M. Harlan II and Potter Stewart dissented from the majority opinion, objecting to the continuing incorporation of the Bill of Rights into the due process clause.
The exact origin of the concept of an individual’s protection against double jeopardy remains unclear. Even a brief sampling of the historical development of the practice of this ideal suggests how much the political and social environments influence the nature of human rights, such as protection against double jeopardy, in any one country in any one time period. In the 1969 case of Benton v. Maryland, the Supreme Court clarified at least one very important aspect in the United States system of government, that double jeopardy protection, previously limited to federal prosecution, also extends to state prosecution.
In the broader historical context, the impact of this decision can be seen as analogous to the situation in England in the twelfth century. Considerable tension resulted from the skirmishes between the head of the state, Henry II, and the representative of the church in England, the Archbishop of Canterbury, Thomas Becket. To protect clerks from being tried and punished by both the ecclesiastical and the king’s courts, the protection against double jeopardy was sometimes cited. The framers of the U.S. Constitution included this protection in the Bill of Rights in 1789. Although the relationship between the states and the federal government is nowhere near as adversarial as the reference to twelfth century English politics might suggest, the two were conceived and remain as separate sovereignties. Thus the Fourteenth Amendment declares, “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law.” The Fifth Amendment, referring only to the federal government, explicitly protects against double jeopardy.
That the Court ruling linking these two amendments came in the 1960’s may also provoke some reflections on the fragility of any human right. During the 1960’s, the nation as a whole put great faith in the power of the federal government to undertake the responsibility of finding solutions to national social problems and protecting the rights of individuals. Such an attitude was a considerable change from the historical view of the federal government.
It is dangerous to overstate the importance of the Benton case. Dual sovereignty still exists—the states and the federal government are separate entities, with their own rights to prosecution. In practice, both are leery of wasting effort on prosecuting twice and tend not to do so. What was clarified in 1969 was the basic human right to be judged by some uniform standard by both sovereignties.
The practice of the ideal of double jeopardy protection remains riddled with confusion, inconsistencies, and questions. Progress toward smooth implementation of this ideal has been, and will no doubt continue to be, rocky. The Benton case, no matter how technical the victory may seem, was a symbolic step toward protecting an individual from getting lost in the battle between two much more powerful entities.
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Garcia, Alfredo. The Fifth Amendment: A Comprehensive Approach. Westport, Conn.: Greenwood Press, 2002. Explains holistically and in detail each element of the Fifth Amendment to the Constitution, including the double jeopardy prohibition. Bibliographic references and index. -
Kirchheimer, Otto. “The Act, the Offense, and Double Jeopardy.” Yale Law Review 58 (March, 1949): 513-544. A scholarly analysis of one specific aspect of double jeopardy, the difference between a single criminal act and the many categories of law one such act may violate. Discusses the potential dangers of this dichotomy and the differences between legal substance and legal procedures. Notes. -
Parker, Frank J. “Some Aspects of Double Jeopardy.” St. John’s Law Review 25 (May, 1951): 188-202. A discussion by a state’s attorney of some of the issues in double jeopardy cases. Uses specific cases to illustrate the problems of dual sovereignty when a state as well as a federal law has been violated; the issue of closely related offenses which may be tried separately; and the problem of retrials when the first is terminated. Notes. -
Rudstein, David S. Double Jeopardy: A Reference Guide to the United States Constitution. Westport, Conn.: Praeger, 2004. Comprehensive review of the constitutional protection against double jeopardy, its philosophical underpinnings, and the history of its application. Bibliographic references and index. -
Schulhofer, Stephen J. “Jeopardy and Mistrials.” University of Pennsylvania Law Review 125 (January, 1977): 452-539. Detailed discussion of the issues involved when mistrials occur. A brief summary of the double jeopardy concept is followed by an analysis of a landmark decision, the Perez case in 1824, as well as other specific cases of mistrials. Classification of the kinds of mistrials that may occur. Notes. -
Sigler, Jay A. Double Jeopardy: The Development of a Legal and Social Policy. Ithaca, N.Y.: Cornell University Press, 1969. Traces the history and development of double jeopardy as a legal and social policy, both federal and state, in the United States. Includes comparisons of the policy with practice in other nations and a discussion of the possibilities for doctrinal reform. An often-cited study, particularly useful for its extensive bibliography of both primary and secondary sources. Index. -
Slovenko, Ralph. “The Law on Double Jeopardy.” Tulane Law Review 30 (April, 1956): 407-430. A discussion of the law on double jeopardy with specific reference to one state. Although it refers to aspects of the criminal code of Louisiana, it provides a brief overview of basic concepts, such as the tests for determining double jeopardy, and is useful as a supplementary reference for the general reader. -
Westen, Peter, and Richard Drubel. “Toward a General Theory of Double Jeopardy.” Supreme Court Review, 1978, 81-169. An often-cited article in the discussion of double jeopardy. Argues that the shifts and inconsistencies in double jeopardy applications are a result of flaws in the fundamental theory. Addresses three distinct issues: finality, double punishment, and acquittal against evidence. Specific court cases are analyzed as illustrations.
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