Bill of Rights

Bill of Rights Paper

University of Phoenix

HIS/311

Introduction

The first 10 Amendments to the US Constitution are known as the Bill of Rights. The Fifth Amendment relates to legal procedure. One of the clauses contained within this Amendment concerns the subject of double jeopardy. Our learning team selected double jeopardy as our area of focus. This document offers an analysis of the Founding Father's intent in providing the double jeopardy clause, a discussion of how double jeopardy protection has evolved through selected court decisions, and an evaluation of the modern day implications to individuals and society.

The Fifth Amendment & Double Jeopardy

The Fifth Amendment (or Article V) of the US Constitution states that:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Wikipedia, 2006)

The portion of the Fifth Amendment that reads "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb" is known as the double jeopardy clause. Many people believe this clause merely protects people from being tried more than once for the same crime. The double jeopardy clause actually affords three separate protections: "protection from being retried for the same crime after an acquittal, protection from retrial after a conviction, and protection from being punished multiple times for the same offense" (Wikipedia2, 2006).

Founding Father's Intent

To assess the Founding Father's intent in providing the Fifth Amendment and the double jeopardy clause, one needs to consider the country's climate at that time. America had recently fought and won independence from England. The Founding Fathers were arguably hyper sensitive to potential abuses of power on the part of government. In line with this assertion and according to Wikipedia2, the intent of the double jeopardy clause was "to limit prosecutorial abuse by the government in repeated prosecution for the same offense, as a means of harassment or oppression" (2006). The Founding Fathers wanted the rights of individuals to be clearly protected and spelled out in the Bill of Rights.

Evolution & Selected Court Decisions

Double jeopardy protection under the Fifth Amendment has evolved over the years as the result of court decisions and interpretations. Amendments ratified after the Bill of Rights passed have also affected double jeopardy protection in America. Selected court cases dealing with double jeopardy are highlighted below.

Palko v. Connecticut, 302 U.S. 319 (1937)

Frank Palko was a resident of Connecticut. In 1935, Palko broke into a music store, took a radio, and fled the scene. Chased and cornered by the police, Palko shot and killed two police officers and made his escape. The details of this case are as follows:

Frank Palko had been charged with first-degree murder but was instead convicted of the lesser offense of second-degree murder and given a sentence of life imprisonment. Prosecutors appealed per Connecticut law and won a new trial, in which Palko was found guilty of first-degree murder and sentenced to death. Palko appealed, arguing that the Fifth Amendment protection against double jeopardy applied to state governments through the Due Process Clause of the Fourteenth Amendment. (Wikipedia3, 2006)

The US Supreme Court affirmed Palko's conviction and asserted "that only fundamental rights, those rights that are central to the concept of "ordered liberty", are protected under the Due Process Clause" (Wikipedia3, 2006).

Benton v. Maryland, 395 U.S. 784 (1969)

John Benton was charged with larceny and burglary. At his trial, Benton was acquitted of larceny but convicted for burglury and sentenced to 10 years imprisonment. The subsequent developments were as follows:

Shortly after Benton's conviction, the Maryland Court of Appeals ruled, in Schowgurow v. State, that the portion of the Maryland Constitution which had required all jurors to swear their belief in the existence of God was itself unconstitutional. Since the jurors in Benton's case had been selected under the unconstitutional provision, he was given the option of demanding a new trial. Benton did in fact choose to undergo a new trial, but at the second trial, the state again charged Benton with larceny in spite of the fact that he had been acquitted of larceny in the first trial. The second trial concluded with Benton being found guilty on both burglary and larceny. (Wikipedia4, 2006)

The US Supreme Court affirmed that this second trial for a previously acquitted offense constituted double jeopardy and reversed Benton's larceny conviction. Justice Thurgood Marshall wrote:

It is clear that petitioner's larceny conviction cannot stand once federal double jeopardy standards are applied. Petitioner was acquitted of larceny in his first trial. Because he decided to appeal his burglary conviction, he is forced to suffer retrial on the larceny count as well. As this Court held in Green v. United States ... "[c]onditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy. (Wikipedia4, 2006)

The Court applied federal double jeopardy standards to a state court, something not previously done. In doing so, "the US Supreme Court Ð''incorporated' the clause under the Fourteenth Amendment, meaning that state courts were now required to honor the protections of the Fifth Amendment in state criminal proceedings as well" (Wikipedia2, 2006). For this central reason, this was a landmark case.

The ruling in this case also represented a reverse approach to that taken by the Court in Palko v. Connecticut, wherein the Court declined to apply federal double jeopardy standards to