Double Jeopardy: The History, the Law

Double Jeopardy: The History, the Law

Double Jeopardy: The History, the Law

Double Jeopardy: The History, the Law


In the first book-length book on the subject in over a quarter century, George C. Thomas III advances an integrated theory of double jeopardy law, a theory anchored in historical, doctrinal, and philosophical method.

Despite popular belief, double jeopardy has never been a limitation on the legislature. It functions instead to keep prosecutors and judges from imposing more than one criminal judgment for the same offense. Determining when seemingly different offenses constitute the "same offense" is no easy task. Nor is it always easy to determine when a defendant has suffered more than one criminal judgment. Tracing American double jeopardy doctrine back to twelfth century English law, the book develops a jurisprudential account of double jeopardy that recognizes the central role of the legislature in creating criminal law blameworthiness.


The United States Supreme Court has failed to achieve a stable interpretation of the Double Jeopardy Clause. This is surprising because the American double jeopardy prohibition partakes of a Western legal concept that is both ancient and fundamental. A specific bar against double jeopardy has existed in the common law at least since the confrontation between Henry II and Saint Thomas Becket in 1164. More generally, laws against changing a final judgment can be traced to the Code of Hammurabi.

At one level, a bar against double jeopardy is a self-evident protection that is inevitable in any legal system. No legal system can survive without some bar against relitigating the same issue over and over. And if there is to be a bar against multiple determinations of the same question, why should the number of permissible determinations be anything other than one? Once a tribunal has determined the facts and law, there is no reason to think that a second tribunal would be any more likely to reach the “right” or “just” outcome (however we might define those terms). Indeed, if two tribunals returned different verdicts in the same case, there would be no a priori reason to prefer one to the other, and thus no reason to prefer a second trial’s outcome to the first.

Viewed in this way, stripped to its core, there is nothing difficult or controversial about double jeopardy. If D is convicted or acquitted of murdering his ex-wife, he cannot again be tried for the murder of his exwife. The Double Jeopardy Clause captures this self-evident principle in an arcane formulation: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The clause thus forbids a second “jeopardy of life or limb” for the “same offence.”

At the core, both “jeopardy” and “same offense” have a self-evident, uncontroversial meaning. The self-evident meaning of “same offense” is “identical offense.” First-degree premeditated murder is the same offense as first-degree premeditated murder, of course, but not much else is obvi-

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