Text and Scope of the Clause

Text and Scope of the Clause

The first of the two threshold questions named in the introduction is whether a proceeding falls within the Clause at all. The text bars any person from being “subject for the same offence to be twice put in jeopardy of life or limb.”¹ Read literally, “life or limb” points to death and bodily punishment, which fits the world in which the Amendment was written: capital punishment was a common sanction in every State when the Bill of Rights was ratified, and the Fifth Amendment itself contemplated capital prosecutions.² On that reading the Clause would protect only defendants facing the gallows or the lash. The Court has rejected the narrow reading as to crimes, and it has been just as firm that the Clause does not reach proceedings that are civil.

The scope of the Clause therefore has two edges. On one side it covers every crime, whatever the penalty. On the other it covers nothing civil, however harsh the remedy. Most scope disputes come down to placing a given proceeding relative to those edges, and the hardest cases involve a legislature that has labeled a sanction civil although it looks like punishment. This section takes the edges in turn and then the inquiry for borderline sanctions.

Any Crime, Any Penalty

The protections of the Clause apply to all crimes, regardless of either the type or the severity of the punishment.³ The phrase “life or limb” refers to any criminal sanction, whether or not anyone's limbs are in danger: a capital sentence and imprisonment count, and so do a criminal fine, probation, and community service, because each follows from a criminal conviction.⁴ What the first gate asks is whether the proceeding carries a possible conviction for a crime, and crimes subject to lesser penalties qualify.⁵

The line does not follow severity because of the harm the Clause addresses. In Benton v. Maryland the Court quoted Green v. United States for the underlying idea: the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual, because each attempt subjects the person to “embarrassment, expense and ordeal,” keeps the person in a continuing state of anxiety and insecurity, and raises the chance that even an innocent person will be convicted.⁶ Every one of those harms arises when a defendant must answer a prosecution for a fine-only offense a second time, because the burden comes from facing the State's machinery and not from the size of the eventual sentence. A rule keyed to severity would leave that harm in place for every prosecution short of the gravest.

The same words are read with restraint in the other direction. In Broom v. Shoop a prisoner was brought to be executed by lethal injection, but the state could not complete the injection after trying, given the condition of his veins. He argued that the failed attempt had put him in jeopardy of his life, so that the state could not try again. The Sixth Circuit disagreed, reasoning that in its historical context the phrase “in jeopardy of life” referred to trials.⁷ The case marks the limit of the broad reading. The phrase is a term for exposure to criminal prosecution and sentence, so it stretches to cover fines and probation without becoming a measure of literal bodily peril.

Civil Actions Fall Outside

The other edge is that the Clause does not apply to civil cases. It has no application to litigation between private parties, and it cannot be invoked to bar a government action that is civil in nature.⁹ A defendant acquitted of murder can therefore be sued for wrongful death over the same conduct, and a party prosecuted for criminal antitrust violations can be sued civilly for the same violation.¹⁰ The reason follows from the harm just described. A private plaintiff cannot imprison anyone and commands none of the State's prosecutorial power, and an acquittal answers only whether the State may punish, leaving open whether the defendant owes something to the injured party.

The exclusion holds even when the civil remedy is meant to punish. A person can face both a criminal sanction and a civil money judgment, even one that includes punitive damages.¹¹ In New York Times v. Sullivan, a case decided on First Amendment grounds, the Court observed in passing that no double-jeopardy limitation applies to civil lawsuits, so the same publication could support more than one libel judgment.¹² Tax law shows the same pattern: a defendant convicted of tax fraud remained subject to a civil fraud penalty in Louis v. Commissioner.¹³

A pair of examples isolates the fact that moves the answer. A defendant charged with a fine-only petty offense faces a lighter penalty than a murder defendant sued in tort for wrongful death, yet the petty-offense defendant is protected on a second prosecution and the tort defendant is not. Severity does not decide the gate; the character of the proceeding does, since the first is a criminal prosecution by the State and the second is a private suit. Students lose this issue when they treat a large or punitive-sounding civil remedy as a second jeopardy, because the Clause asks what kind of proceeding imposed the sanction, and a civil label draws scrutiny only through the inquiry described next.

The Hudson Inquiry

A civil label settles the question in most cases, but the label is chosen by the legislature, and a legislature can attach it to a sanction that works as criminal punishment. If the label were conclusive, a legislature could avoid the Clause by renaming a fine or a term of confinement. If every sanction that punishes counted, ordinary regulatory penalties would become jeopardy and block either the civil or the criminal proceeding. Hudson v. United States draws the line between these positions. Bank officers were fined and barred from their profession by the Comptroller of the Currency for making improper loans, and were later indicted for the same conduct; the Court rejected their claim that the criminal case was double jeopardy.¹⁵ In doing so it abandoned the broader approach of United States v. Halper and held that the Clause reaches not every sanction that is in some sense punitive but only sanctions that constitute criminal punishment.¹⁶

The factors at the second stage include whether the sanction imposes an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it depends on a finding of scienter, whether it serves the traditional aims of retribution and deterrence, and whether it looks excessive in relation to a rational alternative purpose.²¹ The test is demanding by design, since Hudson cautioned that overriding a legislature's civil label will be rare and will take the clearest proof.²² Even large civil sanctions arising from criminal behavior therefore do not normally bar a later criminal action, and asset forfeiture has repeatedly been held not to be jeopardy.²³ A court of appeals applied that reasoning in SEC v. Palmisano, finding no violation where the defendant was ordered to disgorge about $9.2 million and pay a $500,000 civil penalty alongside a 15-year prison sentence.²⁴

The same civil-versus-punitive question decided Kansas v. Hendricks. Hendricks was committed under a Kansas statute for sexually violent predators after a conviction and a term of incarceration, and he argued that the commitment was both a second prosecution and a second punishment for the same offense.²⁵ The Court held that the Act was civil. The State had disavowed punitive intent, limited commitment to a small group of especially dangerous individuals, provided procedural safeguards, kept committed persons apart from the general prison population, recommended treatment where possible, and allowed release once the person was no longer dangerous.²⁶ Because the Act was civil, starting commitment proceedings was not a second prosecution, and the confinement was not punishment even though it followed a prison term.²⁷ Even confinement can land on the civil side, then, when the statute's design points toward treatment and release.

A sanction that proves criminal under this inquiry has satisfied only the first prerequisite of a successful claim. The claimant must also show that jeopardy attached in the first proceeding, that the second prosecution is for the same offense, and that the same sovereign brought both.²⁸ A defendant tried once for a crime and then sued civilly, or fined in a civil proceeding and then prosecuted, has not faced two criminal proceedings, so the claim fails at this gate before attachment or same-offense questions arise. The next section turns to the purposes behind the bar, because the Court's answers on incorporation and attachment both draw on them.