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Abstract

The prohibition against double jeopardy is of ancient lineage in western civilization. In a ringing and scholarly dissent that rewards reflection, Justice Hugo Black said:

Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times. Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers. By the thirteenth century it seems to have been firmly established in England, where it came to be considered as a "universal maxim of the common law." It is not surprising, therefore, that the principle was brought to this country by the earliest settlers as part of their heritage of freedom, and that it has been recognized here as fundamental again and again. Today it is found, in varying forms, not only in the Federal Constitution, but in the jurisprudence or constitutions of every State, as well as most foreign nations. It has, in fact, been described as a part of all advanced systems of law and as one of those universal principles "of reason, justice, and conscience, of which Cicero said: 'Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations it is the same.' While some writers have explained the opposition to double prosecutions by emphasizing the injustice inherent in two punishments for the same act, and others have stressed the dangers to the innocent from allowing the full power of the state to be brought against them in two trials, the basic and recurring theme has always simply been that it is wrong for a man to "be brought into Danger for the same Offence more than once." Few principles have been more deeply "rooted in the traditions and conscience of our people."

Because the prohibition against placing someone in double jeopardy is so deeply rooted in our jurisprudence, double jeopardy challenges have been prevalent throughout our nation's history. This Preface highlights some of the major themes involved in such double jeopardy challenges. Section II of this Preface briefly describes the protections offered by the Double Jeopardy Clause. Section III touches upon one of the key issues in double jeopardy cases-the determination of what actions constitute the "same offense." Section IV addresses some recent developments in double jeopardy law and introduces a rapidly-growing question in modern double jeopardy cases: Whether the double jeopardy protections apply in the context of parallel criminal prosecutions and civil forfeiture actions.