Barbara A. Mack


This Article will attempt to distill from this confusion a meaningful double jeopardy policy, applicable to parallel civil and criminal proceedings, that takes into account the history of double jeopardy, recent changes in statutory law, and the contemporary chaotic state of parallel civil and criminal proceedings. Under current law, double jeopardy protects against three abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. This Article will show that the multiple punishments prong has little basis in law, other than reliance on dicta that have been repeated a multitude of times. Examining the history and case law leads this author to conclude that double jeopardy was intended to prevent overzealous prosecution, not to curtail the authority of legislatures to determine which punishments fit the crime. This means that double jeopardy applies to multiple prosecutions, but not to multiple punishments. Government overreaching via multiple punishments is more directly and more logically controlled by applying the Eighth Amendment Excessive Fines Clause. If the courts persist in including double punishment within double jeopardy, then they must define punishment. Forfeiture of proceeds of crimes should never be deemed punishment, nor should penalties or forfeitures that roughly compensate the government for its costs of investigation and prosecution. Moreover, if the courts continue to include double punishment, they must determine what the "same offense" means in the context of parallel criminal and civil proceedings. This Article contends that to use a more lenient standard in the civil-criminal context than in purely criminal cases would elevate property interests above liberty interests. Section II of this Article will look first at the historical underpinnings of the Double Jeopardy Clause and its constitutional development. It will then discuss the development of double jeopardy analysis in early criminal cases and in early parallel criminal and civil proceedings. Section III will examine judicial analyses of what constitutes the same offense for double jeopardy purposes, and Section IV will address the definition of punishment in the civil context. Section V will analyze whether the Double Jeopardy Clause inhibits the Legislature's ability to determine what punishments fit the crime, focusing on the Court's deference to legislative intent. Finally, Section VI will discuss the cases since 1989-United States v. Halper, Austin v. United States, and Department of Revenue of Montana v. Kurth Ranch and their ramifications.