double jeopardy

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The Double Jeopardy Clause in the Fifth Amendment to the US Constitution prohibits anyone from being prosecuted twice for substantially the same crime. The relevant part of the Fifth Amendment states, "No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . "

Scope of the Double Jeopardy Rule

Not every sanction qualifies under the Double Jeopardy rule. Typically, only sanctions which can be considered as "punishment" would qualify under the rule.


As with all Amendments to the U.S. Constitution, the Double Jeopardy Clause originally applied only to the federal government. However, through the incorporation doctrine, the Supreme Court has incorporated certain amendments and clauses against the states. In Benton v. Maryland, 395 U.S. 784 (1969), the Supreme Court incorporated the Double Jeopardy Clause against the states. 

Civil Sanctions

In United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), the Supreme Court held that the prohibition on double jeopardy extends to civil sanctions which are applied in a manner that is punitive in nature. 

In United States v. Halper, 490 U.S. 435 (1989), a civil sanction made under the False Claims Act qualifies as punishment if the sanction is overwhelmingly disproportionate in compensating the government for its loss, and if the disproportionate award can be explained only as a deterrent or as having a retributive purpose.

In One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972), the Supreme Court held, "Congress may impose both a criminal and a civil sanction in respect to the same act or omission, for the Double Jeopardy Clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense."

Charged as a Juvenile for a Crime

In Breed v. Jones, 421 U.S. 519 (1975), the Supreme Court found that double jeopardy applies to an individual who is tried as a juvenile and is then later tried as an adult. This is because juvenile courts have the option to try a minor as an adult. If that court tries the individual as a juvenile, then another trial court may not try that same individual as an adult for the same crime, as doing so would violate the double jeopardy rule. 

Civil Asset Forfeiture

In United States v. Ursery, 518 US 267 (1996), the Supreme Court held that civil property forfeitures did not constitute a "punishment" for purposes of the double jeopardy clause. The civil property forfeiture is a remedial civil sanction, and not a punitive criminal "punishment." 

See e.g., Currier v. Virginia, 138 S. Ct. 2144, 201 L. Ed. 2d 650 (2018)

For more on double jeopardy, see this Cornell Law Review article and this Yale School Legal Scholarship Repository article

[Last updated in September of 2022 by the Wex Definitions Team]