Double Jeopardy's Demise

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.