Double Jeopardy's Demise

Review Essay Double Jeopardy's Demise DOUBLE JEOPARDY: THE HISTORY, THE LAW. By George C. Thomas Il.ft New York University Press, 1998. pp. 348. $50.00 cloth. Reviewed by Susan R. Kleintt INTRODUCTION George C. Thomas's book on double jeopardy is, as his editor reveals on the inside jacket cover, the first on this subject in over a quarter century. It thus has the potential to play a key role in reviving a serious and sus- tained discussion of double jeopardy jurisprudence. Transformations in the substantive criminal law and criminal procedure areas over the last forty years make a renewed focus on the Double Jeopardy Clause of the Fifth Amendment absolutely critical; more so now, perhaps, than at any other time in our nation's history. A complete list of relatively recent changes in the criminal landscape that have the potential to subject a person to a second jeopardy for the same offense would take the bulk of the space allotted to me in this Review Essay. The most important changes include: state and federal legislators' penchant for enacting duplicative statutes proscribing identical misconduct; Congress's federalization of the criminal law, con- gressional enactment of vague and malleable criminal statutes; federal and state prosecutors' ability to double count and otherwise manipulate the quantity of punishment received under the Federal Sentencing Guidelines and their state counterparts; the advent of so-called "compound" criminal offenses; and federal and state legislators' move toward labeling serious sanctions "civil" rather than criminal. While Thomas does an outstanding job of presenting the competing double jeopardy positions, describing the common law antecedents of the Clause, and criticizing the Supreme Copyright © 2000 California Law Review, Inc. California Law Review, Incorporated (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t Distinguished Professor of Law, Rutgers University, Newark, New Jersey. "t Baker and Botts Professor of Law, University of Texas at Austin. My thanks to Hans Baade, Robert Dawson, and Nancy Jean King for commenting on earlier drafts, and Katrina Blodgett and James Kirby for their research assistance. I am especially grateful to Douglas Laycock for providing the insight that one cannot be a criminal procedure scholar without also becoming a constitutional law scholar. 1001 1002 CALIFORNIA LAW REVIEW [Vol. 88:1001 Court's inconsistent opinions in this area, he does not adequately acknowl- edge these changes that threaten the very core of double jeopardy protec- tions. Perhaps because of this, 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 has the potential to wrest all meaning from the Clause. Thomas's thesis is that "since the legislature creates statutory criminal blameworthiness and the procedure 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" (p. 6). While Thomas defends this thesis primarily on a "theoretical level," he also claims it is "historically linked to the views of Sir William Blackstone" (p. 5). To con- vince the reader, he first details three competing double jeopardy models: (1) the substantive double jeopardy clause; (2) a partly substantive double jeopardy clause; and (3) a procedural/derivative double jeopardy clause. Second, Thomas attempts to demonstrate that the third model most faithfully tracks both the text of the Clause and the common law concep- tion of double jeopardy; advances the policy preferences underlying the Clause; and produces "hard-edged" answers to double jeopardy questions that can guide the courts. Finally, he offers a set of presumptions to assist the court in divining legislative intent when confronted by double jeopardy issues. I follow this same general outline, though I will criticize model three and champion my own variant of models one and two. Drawing on both history and modem practice, I argue that an interpretation that forces the judicial branch to independently define "offense" and "jeopardy" is necessary to foster the only sensible purpose underlying the Clause: protecting against harassing multiple prosecutions and convictions by securing final- ity of factual findings regarding blameworthiness. Whether Blackstone supports the position that a legislature can override common law double jeopardy protection at will is far from clear. Regardless, Blackstone was writing in the British system of Parliamentary Supremacy, and is not a useful source for interpreting a judicially-enforceable American Bill of Rights. Evidence of Framers' and ratifiers' intent regarding the Clause is essen- tially nonexistent. Moreover, the scarcity of common law felonies meant that colonial judges rarely confronted the issue of whether two offenses were the same, much less whether "sameness" was determined by the legislature or the court. If the clause had any meaning at all when ratified, it must have prevented the government from recharging a defendant with a particular theft because it was dissatisfied with an acquittal on that theft. Yet that is precisely what the government can do today as a result of the 1. "[NMor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...." U.S. CONST. amend. V. 2000] DOUBLE JEOPARD Y'S DEMISE 1003 plethora of duplicative and overlapping criminal statutes, if we accept either Thomas's interpretation of the Clause or the present "same statutory elements" test. Like every other provision in the Bill of Rights, the Double Jeopardy Clause should bind the legislative branch. I suggest that, in today's world, 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 ac- counted for in an initial prosecution. Before criticizing the book, I wish to make clear that my disagreement with Thomas's suggested interpretation of the Clause does not detract from the high quality of his work. His book is well written and useful. He does not merely bind together a collection of previously published law review articles or essays. Rather, Thomas accomplishes the prodigious task of synthesizing all scholarly, judicial, and historical literature on the subject, analyzing it, and presenting his own unique theory. He offers a conceptual framework that yields relatively consistent and predictable answers to the full range of double jeopardy issues-the meaning of "same offense," when jeopardy is "twice," the relationship between double jeopardy and collateral estoppel, whether civil sanctions can constitute jeopardy of "life or limb," and unit-of-prosecution problems. Along the way, he not only succinctly describes three complicated positions available regarding the Clause, but details the full legal and social ramifications of accepting each. Finally, his suggested presumptions for ascertaining legislative intent regarding whether offenses are the same and when jeopardy attaches would probably constitute an improvement over the Court's present tests, were Thomas willing to relabel his presumptions constitutional imperatives. The clarity and insight with which Thomas attacks the task of rationalizing double jeopardy jurisprudence unquestionably constitutes a valuable con- tribution to the field. I THREE DOUBLE JEOPARDY MODELS: A SYNOPSIS AND CRITIQUE Thomas immediately focuses on the key issue in modem double jeopardy jurisprudence: Was the Clause designed solely to limit executive and judicial branch action, or is it, like the rest of the Bill of Rights, intended to place limits on the legislative branch? Here I am in complete agreement with Thomas. The Court's unwillingness or inability to decide whether the Clause protects against legislative incursions upon double jeopardy values accounts for most of the confusion in double jeopardy jurisprudence. For example, the Court has rightly been criticized for repeatedly shifting from one legal test for determining whether statutorily defined offenses are the 1004 CALIFORNIA LAW REVIEW [Vol. 88:1001 "same" to another.2 Some of these, such as the "essence of offense" test,3 place strict limits on the legislature's ability to define a single bad act as more than one crime,4 while others, such as the "same statutory elements" test,5 allow the legislature to authorize as many criminal trials for the same misconduct as creative draftsmanship will permit.6 Likewise, the Court has vacillated on the question of what limits the Double Jeopardy Clause places on the legislature's ability to determine when a jeopardy is "second." For example, while the Court has absolutely forbidden prosecutorial appeals of acquittals,7 it has allowed the legislature to authorize prosecutorial appeals of sentences, reasoning that there could be no second punishment where the statutorily authorized appeal prevented a defendant from forming a legitimate expectation that the original sentence was "final." 8 Thomas argues that clarification and consistency can be achieved only if the Court rejects any limits upon the legislature and selects his third double jeopardy model. I come to precisely the opposite conclusion. We will achieve consistency and protect double jeopardy values only by enforcing limits on the legislature's ability to authorize successive trials. A. A Substantive Double Jeopardy Clause Model One, which Thomas labels "a substantive double jeopardy clause" (p. 8), is both a straw man and a red herring. This model interprets 2. Thomas notes this trend, defining "same offense" and discussing a two tier test for "same offense" (pp. 52-57, 94-103). See also Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 YALE L.J. 1807, 1808-09 (1997); Thomas R. Lee, Stare Decisis in HistoricalPerspective: From the Founding Era to the Rehnquist Court, 52 VAND.

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