“Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”
According to North Carolina v. Pearce, 395 U.S. 711 (1969), “It protects against a second prosecution for the same offense after acquittal. [Autrefois acquit, if you want to trot out your Law French.] It protects against a second prosecution for the same offense after conviction [autrefois convict]. And it protects against multiple punishments for the same offense.”
It’s terribly important, and it sounds solid. But the reality is a shadow of what might be. Indeed, I am critical of much about the Court’s double jeopardy jurisprudence, including its liberty-annihilating ‘dual sovereignty,’ which I’ve discussed as co-author both in amicus and in scholarship—including this paper which shares the remarkable tale of both the doctrine’s genesis and its wonderful Chicago defense attorney. And I certainly dislike the ‘same offense’ rule of Blockburger v. United States, 284 U.S. 299 (1932), when converted into a constitutional rule in Gore v. United States, 357 U.S. 386 (1958); it permits as many convictions for any single event as legislatures and prosecutors desire, so long as, for each offense pair, each crime definition contains an element that the other does not. In short, there’s lots to dislike.
But the law has settled to look like the following: Blockburger provides the definitional “same offense” rule for serial prosecutions (again, Gore). However, clarifies Missouri v. Hunter, 459 U.S. 359 (1983), within a single prosecution, the Blockburger test is merely a presumption of legislative intent, meaning a canon of statutory construction—there is no double jeopardy issue. Here are the Hunter Court’s words:
“Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.”
As for a single trial, then, whatever penalty a legislature could proscribe via a single conviction, it constitutionally can choose to proscribe via two.
So, (1) In a single trial, the definitional same offense question is solely a matter of legislative intent, and thus of statutory construction, with the Blockburger test providing evidence of that intent; (2) in multiple trials, the definitional same offense question is a double jeopardy rule determined by the Blockburger test; and (3) in either a single trial or multiple trials, the unit of prosecution question (‘how many burglaries is this?’) is a matter of legislative intent.
Then what if a prosecutor goes crazy, prosecuting zillions of definitionally different offenses arising out of the same act in separate prosecutions?! Probably… so it goes. For a very short time Justice Brennan got five Justices to adopt an additional ‘same conduct’ rule in Grady v. Corbin, 495 U.S. 508 (1990): “We hold that the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” But the Court quickly rejected that much more substantial protection in United States v. Dixon, 509 U.S. 688 (1993). Thus, the Blockburger test is not just a double jeopardy definitional test; it is the double jeopardy definitional test. I don’t like it, but I’m not Supreme.
Along comes Barrett v. United States, No. 24–5774 (Jan. 4, 2026), and it ends up an easy one. In a cogent opinion that makes clear both a complicated statutory structure and a complicated sentencing history, Justice Jackson writes for a unanimous Court in concluding that, first, 18 U.S.C. § 924(c)(1)(A)(i) criminalizing using, carrying, or possessing a firearm in connection with a federal crime of violence is the same Blockburger offense as 18 U.S.C. § 924(j) permitting penalties including potentially death when “a violation of subsection (c)” causes death. Subsection (c)(1)(A)(i) contains no element that (j) does not, making it a lesser included, Blockburger same offense. Unanimous.
Second, explains Justice Jackson also for a unanimous Court, Congress did not intend otherwise for these crimes, even in a single prosecution (a matter of statutory construction). So, one conviction. There is no constitutional issue.
(There is a slight portion of Jackson’s opinion not joined by all Justices, but that is only—as Jackson makes abundantly clear—because some of the Justices will not consider legislative history in interpreting statutes. Nothing new there, and certainly nothing about double jeopardy.)
But wait… Barrett includes a concurrence in part? Why would there be a concurrence in part given the Court’s unanimity?
Well, yes, you can guess… Justice Gorsuch writes solo, here to cast shade on the Court’s 7-2 opinion in Missouri v. Hunter. Now, perhaps one might prefer Justice Marshall’s Hunter dissent, which covers the same ground as Gorsuch. But then it didn’t convince Justice Brennan or the other six who decided otherwise, so… I’m not sure what is different now. And Hunter is defensible; as the Court stated in Green v. United States, 355 U.S. 184 (1957), “The underlying idea [of double jeopardy], one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty” (emphasis added). The amount of punishment in a single trial tends to sound (maybe) in Cruel and Unusual Punishment. The primary concern in double jeopardy is serial prosecutions.
Still, Gorsuch threw down the gauntlet, declaring a decision on the issue not before the Barrett Court: “Today, to be sure, the Court has no occasion to tangle with any of this. … But … Barrett really was charged twice for one offense. He really was convicted twice. Before our intervention, he really was set to be criminally punished twice. And whatever Congress might or might not intend, that is double jeopardy.”
Well, not to the Hunter Court. But, you know… seven Justices writing an opinion for the Court there… Justice Gorsuch dicta here. Who can say?
All complaining about niceties like precedent aside, things do of course change. And some changes are improvements. So, we’ll stay tuned.
Leave a Reply