Protections the Clause Gives

Protections the Clause Gives

Once a proceeding is criminal, the next question is what the Clause forbids the State to do. The Court has answered by describing the guarantee as three separate protections: against a second prosecution for the same offense after an acquittal, against a second prosecution for the same offense after a conviction, and against multiple punishments for the same offense.¹ The Court gave that description in North Carolina v. Pearce on the same day that Benton v. Maryland held the guarantee enforceable against the States, so all three protections reach state prosecutions as well as federal ones.² The incorporation holding itself comes later in this chapter. For now the three protections serve as a map, and later readings supply the tests that decide when each one applies.

The division into three tracks what the State could otherwise do with repeated process. The Clause operates chiefly as a restraint on courts and prosecutors. The legislature remains free to define crimes and punishments, but once it has acted, courts may not impose more than one punishment for the same offense, and prosecutors ordinarily may not seek that punishment in more than one trial.³ The first two protections restrain the prosecutor's repeated attempts, and they differ only in what the first proceeding produced: a verdict in the defendant's favor, or a conviction and sentence. Where successive prosecutions are at stake, the guarantee serves a policy of finality for the defendant's benefit, shielding the accused from relitigation of the facts behind an acquittal and from efforts to add punishment after a conviction.⁴ The third protection is aimed at the sentencing court and needs no second trial to operate. When one trial produces consecutive sentences, the guarantee ensures only that the court does not exceed what the legislature authorized.⁵ Treating the second prosecution and the second punishment as separate dangers keeps the State from reaching the same result by relabeling the proceeding. The Court traces the punishment protection to Ex parte Lange, which treated the rule that no one may be twice lawfully punished for the same offense as settled in English and American law.⁶

Sorting a fact pattern into the right protection starts with asking what the first proceeding produced. In Brown v. Ohio, police caught Nathaniel Brown driving a stolen car in Wickliffe, and he pleaded guilty to joyriding and received 30 days in jail and a $100 fine. After his release he was indicted in Cuyahoga County for stealing the same car nine days earlier.⁷ A conviction had come first and a new prosecution followed, which places the case under the second protection. The Court held that auto theft and joyriding, as greater and lesser included offenses, are the same offense, and that the Fifth Amendment forbids successive prosecution and cumulative punishment for them whichever comes first.⁸ Whether two charges amount to the same offense is a separate question with its own tests, taught in a later reading.

The pattern to avoid is reading the Clause as a bar on retrial and nothing more. Multiple punishments can arise within a single trial, and a student who looks only for a second prosecution will miss the sentencing claim. The three subsections that follow match each protection to its typical fact pattern. Which charges count as the same offense, when jeopardy ends, and when retrial is allowed after the defendant's own appeal belong to later readings. Each protection also depends on the earlier gates in this chapter: the proceeding must be criminal, the Clause must bind the prosecuting State, and jeopardy must have attached.

After an Acquittal

The first protection applies when the earlier proceeding ended in an acquittal, which is a verdict of not guilty. An acquittal is final and ends the defendant's jeopardy, so it bars a later prosecution for the same offense even when the verdict was not followed by any judgment.¹⁰ The purposes taught earlier press hardest at this point. A not-guilty verdict records that the State, with all its resources, tried to prove guilt and failed, and a second trial would revive the practice the Clause targets, in which a prosecutor retries the defendant in the hope that a different jury will reach a different result.¹¹ The clearest illustration comes from the case that carried the Clause to the States.

In Benton v. Maryland the State tried Benton on larceny and burglary, and the jury found him not guilty of larceny but guilty of burglary.¹² The Maryland Court of Appeals later remanded for a new trial because the jury had been selected in an unconstitutional manner.¹³ At the second trial the State pursued both counts again and won convictions on both, and the state court rejected Benton's double jeopardy objection on the ground that the Fifth Amendment Clause did not apply to the States.¹⁴ The Supreme Court held that the Clause does bind the States, a holding the incorporation section below takes up.¹⁵ It then applied the Clause to the larceny count, holding that the first jury's acquittal barred the second trial on that offense and that the larceny conviction therefore had to be reversed.¹⁶

The part of the case that most often trips students is what the jury-selection defect did and did not change. The defect called the burglary conviction into question, since the State had not shown that the selection method left that verdict unaffected.¹⁷ The larceny verdict was a different kind of result. It was an acquittal, a ruling in Benton's favor that he had not challenged, and the State's need for a second trial on the burglary count gave it no second attempt at the larceny count. A defect in the first trial does not erase an acquittal, and the result looks natural once you ask who caused the defect: the unconstitutional selection method was the State's own. A rule letting the State reopen acquittals whenever its own procedures proved flawed would hand it another chance each time it erred, which is the incentive the Clause removes.

The bar holds even when the acquittal looks wrong. The Government cannot secure a new trial by appealing an acquittal it considers erroneous.¹⁸ Justice Brennan's dissent in Dowling v. United States restates the point, observing that the protection applies even to an acquittal resting on an "egregiously erroneous foundation."¹⁹ The Clause does not forbid every government appeal after an acquittal, however, because an appeal that could not lead to a second trial before a new fact-finder is permitted, a qualification later readings develop.²⁰

The acquittal also protects against some prosecutions on charges that differ from the first. In Ashe v. Swenson a jury acquitted Ashe of robbing one of six poker players after the defense contested only whether he was among the robbers, and the State then tried him before a new jury for robbing a second player, with witnesses who were now more certain of his identity.²¹ The Court reversed the conviction, reasoning that the first verdict had settled the identity question and that the guarantee protects an acquitted man from having to "run the gauntlet" a second time.²² The doctrine at work is collateral estoppel, under which an issue of ultimate fact decided by a valid and final judgment cannot be litigated again between the same parties, and it expands the protection beyond a repeated charge.²³ How far that doctrine reaches, and when two charges count as the same offense, are questions for later readings. Here it is enough to see that the acquittal is the event around which this protection is built.

The protection has a clear boundary at the other end, because it requires an acquittal. When a charge is dismissed during jury selection, before any verdict and before the jury is sworn, the State may refile within the limitations period.²⁴ That situation differs from Benton's in one decisive respect: Benton's first jury returned a verdict in his favor, while the dismissed charge never reached a verdict. With nothing decided about guilt, the State has not yet lost the contest it is trying to reopen, and the first proceeding has not let it rehearse its case before a jury. Whether jeopardy had attached is the separate gate taught later in this chapter, and a dismissal before the jury is sworn fails that gate as well.

After a Conviction

The second protection applies when the earlier proceeding ended in a conviction. The State has already tried the defendant, won a verdict of guilt, and imposed a sentence, and it now seeks to prosecute the same offense again.²⁶ The bar is old: at common law it covered a second trial after a conviction as well as after an acquittal, whether or not the accused had yet been punished.²⁷ The reason follows from what a conviction represents. A valid conviction means the State has had its complete opportunity to prove the offense and has used it successfully, so a further prosecution for that offense can serve only to improve on the result. A concurring opinion in North Carolina v. Pearce identifies that as the target, describing a purpose of the Clause as preventing the State, after a conviction, from retrying the defendant in the hope of securing a greater penalty.²⁸ Since Benton v. Maryland made the guarantee enforceable against the States, state prosecutors are bound by this protection just as federal prosecutors are.²⁹

The incentive the protection removes belongs to the prosecutor. A prosecutor who thinks a sentence too light has a motive to try again, and if a second prosecution were available whenever that motive arose, the State could keep trying the same offense until some judge or jury handed down the penalty it wanted. The defendant could never treat a judgment as final, and each new trial would bring the expense, anxiety, and risk of erroneous conviction that the Clause exists to spare.³⁰ This protection and the acquittal bar therefore share a target, the State's second attempt, and differ only in what the State is trying to improve. After an acquittal it wants a conviction, and after a conviction it wants more punishment.

The second scenario in that box is the Ball principle, and it keeps the conviction bar from reaching every second trial. In United States v. Ball the Court held that a defendant who gets a first conviction set aside may be retried for the offense of which the defendant was convicted, and that rule has become a fundamental part of criminal procedure.³¹ Courts have explained it in two ways. Some said the appellant waived the plea of former jeopardy by asking that the conviction be set aside, and others said the retrial continues the jeopardy that attached at the first trial, since jeopardy does not end until the accused is acquitted or the conviction becomes final.³² On either account, when a conviction is overturned a new trial does not expose the defendant to a new or second risk of conviction.³³ A further reason rests on society's interest in punishing a person whose guilt is clear after a fair trial, since the cost to society would be very high if every defect sufficient to reverse a conviction conferred immunity from punishment.³⁴ The defendant, rather than the State, chose to put the judgment in question, so the retrial resumes the original prosecution.

Students who see a conviction followed by another trial for the same offense should therefore ask who set the conviction aside, because retrial after the defendant's own successful appeal is not the second prosecution this protection forbids. The facts of Pearce show the principle at work. Rice pleaded guilty in an Alabama court to four burglary charges and received prison terms totaling ten years. Two and a half years later the judgments were set aside in a state post-conviction proceeding because Rice had been denied counsel, and he was retried on three of the charges, convicted, and sentenced to terms totaling twenty-five years.³⁵ The question the Court took up was what limits apply to punishment after reconviction, and whether time already served must be credited, rather than whether Rice could be retried at all.³⁶ A concurring opinion records the baseline in plain terms: a convicted person may be retried after a successful appeal.³⁷ Those limits on punishment belong to later readings, and this section states no rule about them.

Retrial after the defendant's own appeal has an edge, and Green v. United States marks it. Green was indicted on an arson count and on a count alleging a death caused by the arson, which would be first-degree murder, and the jury was instructed that it could convict of first-degree or second-degree murder. It convicted him of second-degree murder, and its verdict was silent on the first-degree charge.³⁸ The Court of Appeals reversed the second-degree conviction for lack of supporting evidence and remanded for a new trial, at which Green was tried again for first-degree murder.³⁹ The Supreme Court held that the second trial put him in jeopardy twice for the same offense, even though the original jury had refused to find him guilty of first-degree murder and that charge played no part in his appeal.⁴⁰ Ball therefore supports retrial on the offense of which the defendant was convicted and from which the defendant appealed, but it does not carry the State up to a greater charge that the first jury declined to convict on. The reasoning behind that result concerns the effect of the first verdict, and later readings return to it.

A different pattern appears in Blackledge v. Perry, where the heavier charge came after the defendant invoked a statutory right to appeal. Perry was convicted of misdemeanor assault with a deadly weapon in a bench trial and sentenced to six months. His appeal entitled him to a trial de novo under North Carolina law, which annulled the conviction and started the prosecution over, and before that trial the prosecutor obtained a felony indictment for assault with intent to kill based on the same conduct.⁴¹ Perry argued double jeopardy, but the Court found it necessary to reach only his claim that the felony charge penalized his exercise of the right to appeal, and it held that bringing the more serious charge violated due process.⁴² The case shows that a prosecutor's step up to a heavier charge after a conviction can be resolved on a retaliation theory under due process, so an answer that mentions only double jeopardy may miss the doctrine that controls.

Against Multiple Punishments

The third protection turns attention from the number of trials to the number of penalties. The Court has described the guarantee as containing three separate protections: against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense.⁴⁴ The first two bar a second proceeding. The third bars a second sanction, and it has to stand on its own because a State forbidden to try a person twice could otherwise reach much the same result by repeating or enlarging a penalty inside the original judgment. Since Benton v. Maryland carried the Clause to the States, state courts are bound by this protection just as federal courts are.⁴⁵

The protection predates the Clause's final wording. A proposal in the first Congress would have barred more than one punishment or one trial for the same offense. The language was changed because some members feared that a flat limit of one trial might stop a convicted person from obtaining a new trial on a writ of error, and the change was not meant to alter the ban on double punishment.⁴⁶ The Court's foundational treatment came in Ex parte Lange. A federal statute allowed a sentence of one year's imprisonment or a fine of $200, yet Lange was sentenced to both. Five days later, on habeas corpus, the trial court re-examined its own sentence and reset it at one year of imprisonment without credit for time already served. The Supreme Court ordered Lange discharged altogether, reasoning that the trial court had power to impose either punishment, that Lange had paid the fine, and that he had therefore already suffered complete punishment and could not be subjected to any further sanction.⁴⁷ In explaining the result, the Court called it settled in English and American jurisprudence that "no man can be twice lawfully punished for the same offence."⁴⁸

The reason the Clause reaches punishment as well as trial comes from Lange's own reasoning. The Court asked why a person once tried and convicted can never be tried again for that offense, and answered that the real danger is the punishment that would follow a second conviction.⁴⁹ If a person who had finished a sentence could be sentenced again on the same conviction, the rule against second trials would be worth very little, because the State could obtain the same result without holding a trial at all. The temptation belongs to whoever is dissatisfied with the first penalty, whether a prosecutor who thinks it too light or a court that reconsiders it, and a rule that policed only trials would leave that temptation free to operate after judgment. A concurring opinion in North Carolina v. Pearce applies the principle to its plainest case: where a man has successfully attacked a sentence he has already fully served, the State cannot create an additional sentence and send him back to prison.⁵⁰ The same opinion explains why a court may shorten a sentence after the fact but may not lengthen it: the limit rests on the ban on double punishment, and has nothing to do with the court having lost control of its judgment.⁵¹

Pearce shows how the protection arises when a defendant is sentenced again after a retrial. The Court framed the credit-for-time-served question as one that necessarily implicates the multiple-punishment protection, since the issue is whether a new sentence must account for punishment the defendant has already endured.⁵² The two cases decided together differed on that point. Under North Carolina law Pearce received full credit for time served under his earlier sentence.⁵³ In Alabama, Rice had pleaded guilty to four burglary charges and received prison terms totaling ten years. Two and a half years later a state proceeding set the judgments aside because he had been denied counsel, and after retrial on three of the charges he received terms totaling twenty-five years with no credit for the time he had already spent in prison.⁵⁴ The comparison isolates the fact that matters here. Pearce's earlier time counted toward his new sentence, while Rice's two and a half years counted for nothing. How the Court resolved the credit question, and the separate limits on harsher sentences after reconviction, belong to later readings. This section identifies only the protection those questions engage.

Multiple punishment can also arise inside a single proceeding, and there the question is what the legislature authorized. The legislature defines crimes and punishments, and once it has acted, courts may not impose more than one punishment for the same offense.⁵⁵ At a single trial the guarantee therefore keeps courts within legislative authorization, while in successive prosecutions it serves a policy of finality for the defendant.⁵⁶ Both settings ask whether the offenses are the same. In Brown v. Ohio the Court applied the test from Blockburger v. United States, which asks whether each provision requires proof of a fact the other does not, and held that offenses that are the same for barring consecutive sentences at one trial are necessarily the same for barring successive prosecutions.⁵⁷ A greater offense and its lesser included offense fail that test, so the Clause forbids both successive prosecution and cumulative punishment for them, whichever comes first.⁵⁸ When two charges count as the same offense is the subject of a later reading.

The protection also has an outer boundary, because it reaches only criminal punishment. In Kansas v. Hendricks a State confined a man under a civil commitment statute after he had completed a prison term, and the Court held that the commitment was neither a second prosecution nor a second punishment, because the Act was civil and commitment under it was not tantamount to punishment, even though the confinement followed a prison term.⁵⁹ The same limit explains why parallel civil sanctions rarely amount to a second punishment. The Clause protects only against multiple criminal punishments for the same offense, and a sanction the legislature has classified as civil stays civil unless it is so punitive that it becomes a criminal penalty.⁶⁰ In SEC v. Palmisano a defendant sentenced to fifteen years in prison was also ordered to disgorge about $9.2 million and pay a $500,000 civil penalty, and the Second Circuit found no double jeopardy violation.⁶¹ The reason follows from what the protection is for: it stops the State from punishing again what it has already punished, and a measure that is not itself punishment does not do that. On an exam stem, a second sanction after a prison term is therefore not automatically a second punishment, and the first question is whether the second sanction is criminal in character.