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A Modest Proposal to Save the Double Jeopardy Clause

Publication Title

Washington University Law Quarterly

Abstract

Though it did not attract much attention, one of Justice Brennan's last majority opinions for the Supreme Court effected a major change in the long-standing interpretation of the double jeopardy clause. Brennan's opinion in Grady v. Corbin affirmed a position I had taken in previous articles, namely that the double jeopardy clause provides some form of protection against reprosecution of the same conduct. I still believe the principle correct. But I also believe the lack of articulated limitations on the principle renders the 5-4 decision in Corbin unstable because, if unchecked, it will lead to results that are contrary to our shared intuitions about what double jeopardy should forbid. Thus, while I would not phrase it quite the same way, I agree in essence with Justice Scalia's pre-diction of the societal response to Corbin: "rejection of today's [majority] opinion is adequately supported by the modest desire to protect our criminal legal system from ridicule." Moreover, I agree with Scalia's prediction of Corbin’s future if it remains in its current form: "A limitation that is so unsupported in reason and so absurd in application is unlikely to survive." But if a future Court reverses Corbin on the grounds that Scalia suggests, the result will be to narrow severely the protection of the clause. Thus, I wish to discuss how Corbin is simultaneously right and wrong. Then I will propose a solution to this dilemma, one that avoids Scalia's narrow dissenting position and derives from the literal language of the double jeopardy clause.

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