Nor Twice Put In Jeopardy

[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . ..

–United States Constitution, Fifth Amendment

The founding fathers left much up for grabs in their wording of the Constitution and Bill of Rights, but not in the double jeopardy clause. They said “twice.”  Not thrice, not as many times as needed to get a conviction, not until a jury of twelve is unanimous one way or another.  Just twice.  And everything since has dishonored their word.

I’ve argued long and hard, and to no avail, that the doctrinal construct around the double jeopardy clause is fundamentally wrong.  The government gets one chance to prove a defendant guilty beyond a reasonable doubt. To do so, they must persuade twelve men good and true of guilt.  If they fail to do so, what?

The United States Supreme Court has redefined twice to mean until twelve jurors reach unanimous agreement, whether of guilt or lack of guilt.  Nowhere in the double jeopardy clause is there a proviso that unless there is unanimous agreement that a defendant is not guilty, the government can put a person in jeopardy again. 

The inability of the government to convince the twelve of guilt means that they have put a person in jeopardy and failed to convict.  That is their one shot at jeopardy. That even one person rejects the government’s proof satisfies whatever claim to due process the government possesses.  There is no burden on the defense to obtain a unanimous verdict from a jury of not guilty, yet the interpretation of double jeopardy does exactly that, subjecting the defendant to multiple jeopardy until some party has met the burden of unanimity. 

Thus, I was surprised and thrilled to see  PrawfsBlawg honcho  Dan Markel and his trusty sidekick, Ethan Leib (only kidding), seize the opportunity to “propose” a constitutional amendment at Slate’s “Fix the Constitution” series.





Theoretically, the Constitution’s double jeopardy clause is supposed to protect a defendant from being tried twice for the same offense. In practice, our constitutional protections against double jeopardy are anemic. One reason that’s true is because the Supreme Court has read the clause to allow the government to retry a defendant on a charge anytime the jury doesn’t reach unanimous agreement on a defendant’s innocence with respect to that charge.



This is unjustifiable. Unless there is evidence of their misconduct affecting the integrity of the initial trial, defendants who are not initially found guilty on a charge deserve finality and repose with respect to those charges. They shouldn’t be dependent on unilateral decisions by the government after they have already inspired some real doubt in a jury of their peers who have deliberated and failed to agree upon conviction.

That Dan and Ethan would propound this argument, this point, is quite extraordinary. Having read their book, Privilege or Punish (along with Jennifer Collins), which began with an interesting premise before devolving into a way to bring misery to the families of defendants everywhere, there was little expectation that they would have sufficient concern for an issue such as this, which restores meaning to the double jeopardy clause in aid of the defense rather than rationalizes away the try-’em-till-they’re-convicted approach.

I would be remiss not to applaud Dan and Ethan for their Slate post.  Not merely remiss, but insufferably unappreciative, given that I’ve never been reluctant to take a stab when I disagreed with Dan in the past.  I take back every snarling word I ever wrote about Dan for having used his bully pulpit to offer this proposal to change the Fifth Amendment:



Absent evidence of a defendant’s misconduct affecting the integrity of the initial judicial process, a defendant will have double jeopardy protection against a particular charge whenever a jury deliberates and is unable to agree upon conviction unanimously.

This honors the word of the Founding Fathers. This reflects the only intellectually honest approach toward jeopardy in light of the double jeopardy clause; the government gets one shot, one full opportunity, to prove guilt.  If it fails to do so, then no person shall be put twice in jeopardy.

And, as Dan and Ethan note, it’s not like this isn’t the case elsewhere in our approach toward jeopardy.


Our change would give the government one real chance to make its case on a particular charge. The Uniform Code of Military Justice has adopted the rule we propose—when the prosecutors fail to get jurors to reach consensus on conviction, according to the code, a not-guilty verdict is entered. In this domain, the military is doling out better justice than our Constitution provides to the average defendant in our criminal justice system.

When I first learned of this distinction between criminal and military law, I was shocked. How was it possible that the interpretation could be so fundamentally different, that under military law the burden, along with the proscription of double jeopardy, was respected when in criminal law it, like so many other rules, was subsumed in rationalization that rendered the constitutional prohibition a farce?

No one has ever provided a satisfactory explanation.  I conclude there is none.

So I tip my hat and offer my heartfelt appreciation to Dan Markel and Ethan Leib for using their opportunity at Slate to propose this change.  You guys did good. Thank you.  And sorry about all the mean things I said about you before.





14 thoughts on “Nor Twice Put In Jeopardy

  1. Frank

    A good start, but not complete. It stll leaves open the possibility of a new trial with different charges, or a different jurisdiction. Hang a jury in state court, get charged in Federal cout.

  2. Burgers Allday

    Thanks for this post. I have long wondered about this same thing (but not strongly enuf 2 do the research on it). Sounds like it is as bad as I feared.

  3. Max Kennerly

    Some empirical data would help move the discussion along. Otherwise the obvious retort is that “the guilty would go free too often,” and then we’re at a stalemate of personal preferences.

  4. SHG

    So you view the presumption of innocence as a “personal preference,” Max?  The problem with empirical data is that every prosecution is different, so frequency isn’t relevant in any individual case.  Unless, of course, your concern is that those darn constitutional rights technicalities let the guilty go free.

  5. Thomas R. Griffith

    Sir, I’ve also thought about this and wondered how the judges get away with ignoring the so-called Constitution when they are reported to have sent the jury back or order new trials until they sub come to peer pressure.

    It forces the jury to tag team the hold-outs and bully them until they change verdicts. A bullied juror either refuses to go through it again or goes on to bully other jurors. Which is exactly why I proposed placing either Court Reporters in the room or installing tamper proof cameras and becoming part of the case file.(Job Creation?)

    Since the ‘R’ word isn’t allowed and since no one’s asked, *What in the hell can be done about this BS other than leaving it to Slate? If nothing, then we are simply learning about it, blogging about it & condoning it. Rendering ‘us’ (the messenger and the ‘masses’ guilty of association for going along. Thanks.

  6. Max Kennerly

    So you view societal’s interest in punishing the guilty to be a “personal preference?” Round and round we go.

    You assert, ipse dixit, that “failure to convict” is equivalent to “acquit.” That’s a debatable point. You know the theory behind the rule: a hung jury is like any other mistrial, a mid-trial failure that doesn’t preclude a continuation of the case. Simply waving your hands and shouting “I disagree!” is your right but it’s not going to convince anyone else.

    Frequency is quite relevant to understanding societal problems. How often does this happen? How often do prosecutors decline another prosecution? What types of cases generally get re-tried and which are dropped? Advocates spend years developing that same type of empirical evidence against the death penalty and crack sentencing, so that now (a) the death penalty isn’t used in most states and (b) the crack disparity has been removed.

    Shouting “this offends my notions of justice” feels good, but it’s not going to change anything. If those law professors cared, they’d use their ample research time and resources to come up with something more persuasive than, “hey, this feels wrong to us.” Well, sending people to jail who were not absolved by one jury then convicted by another feels very, very right to others.

  7. SHG

    Not round at all, Max. Once again, you demonstrate how to make noise while your head is up your ass. This was the point of Dan and Ethan’s proposal, that the failure of a jury to convict should be the end of the game. That you are yet again incapable of grasping their (and my) clear point isn’t merely sad, but pathetic.

    Seriously, Max. You need to get your head out of your ass. I’m not just kidding with you this time. There is something seriously awry with you. When you’re the only one incapable of grasping the point, it’s time to ask what’s wrong with you. 

  8. Sgt. Schultz

    Dude, a lot of your comments are pretty trollish, but mostly just make you look clueless. This one makes you look like a total dumbass. I bet you’re mad at SHG for making you look stupid, but the solution isn’t to be even more stupid, but to stop being stupid in the first place.

    Get with it. Or are you really as stupid as you come off?

  9. SHG

    For the most part, Max is harmless. He’s not a criminal defense lawyers, but can’t help himself from trying to play one in the comment section here. Most of us are well aware that Max just posts dumb comments, but sometimes he’s funny.  I know I get a chuckle out of Max’s comments.

    True, this one was just particularly inane. I expected more from him. And better behavior in my house, but apparently, I expect too much.

  10. Hastings Prof

    Mr. Kennerly,

    It strikes me that your problem is the failure to appreciate the premise of the proposal, which is that failure to persuade a jury convict is the outcome. This calls for a definitional change, and the concept appears to elude you.

    That you seek empirical data to “move the discussion along” is curious. The discussion has moved along, though apparently not to your satisfaction. Thus, it is merely your personal preference that is at issue, as the rest of us both understand and appreciate the concept.

    While one might debate whether Dan Markel and Ethan Leib are right in their interpretation or point of view, there is no debate that the discussion can’t move along unless it either meets your personal approval or your desire for empirical data, which might reflect on the significance of the problem but has nothing to do with the concept.

    In other words, your comments reflect the dual sins of your inability to understand the concept at issue and your narcissistic view that your inability to grasp the premise is somehow meaningful to others. You are free to believe that you, and your demands, are crucial to this discussion, but everyone else is similarly free to think otherwise.

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