Doctrines
Double Jeopardy
Also Known As Non Bis in Idem
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Origin Ratified 1791 as part of the United States Bill of Rights.
Double jeopardy is the constitutional protection against being prosecuted twice for the same offense, guaranteed by the Fifth Amendment of the United States Constitution and recognized in comparable form across common law and civil law jurisdictions under the principle of non bis in idem. In the United States, the dual sovereignty doctrine permits both a state and the federal government to prosecute the same underlying conduct as separate offenses against separate sovereigns, a long-contested exception to the general rule.
Facts
Origin PeriodRatified 1791 as part of the United States Bill of Rights. 1 Core PrincipleNor shall any person be subject for the same offence to be twice put in jeopardy of life or limb (Fifth Amendment, United States Constitution, ratified 1791). 1 Core PrincipleThe protection carries a key exception in United States federal practice: under the dual sovereignty doctrine, the federal government and a state government are separate sovereigns, so an offender may be prosecuted by both, in either order, for the same underlying conduct without violating double jeopardy. 2 Cross-Tradition Connections
Sources
1. Bill of Rights Transcript (National Archives)
National Archives and Records AdministrationFifth AmendmentQuote, Fifth Amendment
nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb
2. Double Jeopardy (Wikipedia)
History sectionQuote, History section
These doctrines appear to have originated in ancient Roman law, in the broader principle non bis in idem ('not twice against the same').
2. Double Jeopardy (Wikipedia)
United States section, dual sovereignty exceptionQuote, United States section, dual sovereignty exception
Under the dual sovereignty doctrine, multiple sovereigns can indict a defendant for the same crime. The federal and state governments can have overlapping criminal laws, so a criminal offender may be convicted in individual states and federal courts for exactly the same crime or for different crimes arising out of the same facts.
Double Jeopardy (Cornell LII Wex)
Cornell Law School Legal Information Instituteopening sectionQuote, opening section
The Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution protects against being prosecuted twice for the same crime. Through the incorporation doctrine, double jeopardy applies to both the federal and state governments, following Benton v. Maryland, 395 U.S. 784 (1969).
Dissenting Readings (1 dissenting reading)
Description
Gorsuch, dissenting in Gamble v. United States (2019): 'When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is the poor and the weak, and the unpopular and controversial, who suffer first, and there is nothing to stop them from being the last.' The dissent argued the dual sovereignty exception lets state and federal governments jointly evade the Double Jeopardy Clause's core promise by treating one act as two offenses merely because two governments chose to punish it.
A dissenting reading, from Justice Neil Gorsuch (dissenting in Gamble v. United States, 2019)Gamble v. United States (Wikipedia), Wikipedia
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