Academic journal article American Criminal Law Review

The Case of Ex Parte Lange (or How the Double Jeopardy Clause Lost Its "Life or Limb")

Academic journal article American Criminal Law Review

The Case of Ex Parte Lange (or How the Double Jeopardy Clause Lost Its "Life or Limb")

Article excerpt


The familiar phrase "jeopardy of life or limb" had a literal, real, immediate, and probably terrifying meaning to the Founding Fathers, especially to those bold enough to sign the Declaration of Independence or to fight in the Revolution. Should any of them have been caught, prosecuted, and convicted of this high treason, the punishment, according to the venerable Blackstone, was:

   1. That the offender be drawn to the gallows, and not be carried or
   walk.... 2. That he be hanged by the neck, and then cut down alive. 3. That
   his entrails be taken out and burned, while he is yet alive. 4. That his
   head be cut off. 5. That his body be divided into four parts. 6. That his
   head and quarters be at the king's disposable.(1)

Had any of the offenders been women, their punishment would have been, "as the natural modesty of the sex forbids the expo[s]ing and publicly mangling their bodies, ... to be drawn to the gallows, and there to be burned alive."(2) Indeed, during the last half of the eighteenth century, in both England and America, the mandatory punishment for nearly all felonies was death,(3) although the gruesome accoutrements of executions for high treason attended only the more serious felonies.(4) It was against this backdrop that the Founding Fathers understood the notion of double jeopardy and crafted a double jeopardy clause conforming to that understanding.(5) For them, to be in "jeopardy of life or limb" meant to be in jeopardy of capital punishment.

That "life or limb" refers to the most serious punishments should be obvious, of course, from the words themselves without knowledge of the historical context. But the commonly-understood meaning of those words gives no hint of their modern-day, judicially-imposed meaning. Surely there are few, if any, provisions of the Constitution from which the Supreme Court, in its interpretations, has deviated more drastically from the literal terms used at conception. In effect, the qualifying words "of life or limb" have been written out of the Fifth Amendment, and the Clause should now more aptly state, "nor shall any person be subject for the same offense to be twice put in jeopardy of [any punishment]."

To be sure, in today's jurisprudence, it is taken for granted that the scope of the Double Jeopardy Clause encompasses not just capital punishment, but imprisonment, and fines and punishment of all kinds, for felonies and misdemeanors alike. In fact, the Supreme Court's double jeopardy cases over the past few terms focus on the possibility that even some government-imposed civil sanctions might come within the purview of the Clause. Despite the salutary policy of affording double jeopardy protection for all punishments, it is not plausible to stretch the Double Jeopardy Clause from capital punishment to the minor punishments imposed for misdemeanors, much less for punitive civil sanctions. The stretch can only be made by viewing the words "life or limb" as a term of art, or as one commentator more eloquently stated, as "a single unitary phrase.... whose whole is greater than its parts"--words that are to be read as "poetic notes:" (6) As poetry, in other words, "life or limb" can become a metaphor for all punishment. But this convenient rationalization, as will be explained, disregards the likelihood that the Framers understood double jeopardy not as a broad, general, and evolving concept, but rather as a finite and static rule limited by its own terms.

The Supreme Court, motivated by policy instead of history, adopted the poetic notes approach in the 1873 case of Ex parte Lange(7) by applying the Double Jeopardy Clause to misdemeanors and misdemeanor punishment, and thus clearing the way for the evolution of double jeopardy law in its current form. Since that time, the Lange opinion has enjoyed nearly unquestioned acceptance and has been zealously defended.(8) Only the Pennsylvania Supreme Court, in a now obscure opinion, has had the gumption to reject outright the Lange interpretation. …

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