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Double Jeopardy: The History, the Law. (Review Essay / A Rough Country Guide: Double Jeopardy, Doctrine, and Realism).

George C. Thomas III, Double Jeopardy: The History, the Law New York University Press, 1998, 349 pp.

Throughout his scholarly career, George Thomas has ventured often into procedural territory that most scholars in his field avoid. (1) Legal commentators, to say nothing of law students, lawyers, and judges, generally find the land of double jeopardy an arid and disquieting place. In this region of vague policy directions, complex and apparently conflicting precedents, yet severe consequences, the hazards of intellectual travel appear enormous. Yet Thomas displays a native's sense of place here, easily orienting himself and others within its rough terrain. And where most soon find themselves gasping at the throat-parching technicalities of double jeopardy, Thomas finds beauty in the very harshness of conditions; where many find baffling complexity, Thomas finds a simple elegance. (2)

Thomas's skill and ease in this difficult area of the law is displayed from start to finish in Double Jeopardy: The History, the Law. In this work Thomas lays out a singular theory of double jeopardy which seeks to simplify the many subrules of its doctrine. Not content to resolve the ambiguities of a few recent cases or even a single area of double jeopardy law, Thomas considers the entire range of double jeopardy issues and all of its interrelationships. He demonstrates how each part of the law does--and should--relate to the other and suggests manifold ways that current doctrine should be reformed. Throughout he does what only the most skilled doctrinalist can accomplish: he makes it look easy.

Yet there is a price to Thomas's clear-eyed vision, a cost for his thoughtful guidance that many academics, lawyers, and perhaps judges will be reluctant to pay. For Thomas achieves clarity in double jeopardy by arguing for an apparent reversal of constitutional role, by arguing that the rules of double jeopardy, which constitute a fundamental check on the state's use of the criminal process enforced by the judicial branch, depend almost entirely on legislative intent.

In this brief review, following a sketch of the author's scheme, I attempt a preliminary evaluation of its doctrinal merits. In summary, Thomas succeeds remarkably well in selling his vision of double jeopardy as the most coherent vision of constitutional doctrine currently available. This assessment must be considered only preliminary, however, both because the real test of a doctrinal theory must be in its practice rather than its abstract merits, and because it assumes what is in fact the big question here: What jurisprudential approach should we employ in resolving double jeopardy questions?

Like most contemporary legal scholars, Thomas works within a particular legal ideology, here that of traditional doctrinalism. While Thomas considers legal realist objections to his approach, he does so only from within the walls of doctrinalism's first principles, which assume the ideal of coherence and reject the messiness of ad hoc policy making. As a result, while Thomas's argument plays well according to traditional criteria, it does not squarely address more fundamental objections to doctrinalism itself.

I end by considering Thomas's book as part of the ongoing ideological struggle in law between doctrinalism and legal realism. Thomas's defense of the former against the latter exemplifies the typical engagement between modern ideologies: a pitched battle between distinct perspectives. Read closely though, the book contains hints of another approach, one in which different rules might be sorted along a jurisprudential continuum, according to their respective doctrinalist or realist qualities.

Double Jeopardy as Legislative Intent--An Overview

Though double jeopardy principles represent some of the most ancient and widely accepted limitations on the state's criminal powers in western law, in Thomas's view they operate primarily to hold prosecutors to the powers that state legislators meant to grant rather than represent independent checks on those legislators. According to Thomas, "the Double Jeopardy Clause contains no substantive limits on the legislative prerogative" [23]. (3) Drawing heavily on William Blackstone's long-influential conception of double jeopardy, Thomas asserts that:
 [D]ouble jeopardy is a procedural overlay on the substantive
 criminal law that defines blameworthiness and on the law of
 procedure that defines criminal verdicts and dictates when those
 verdicts can be sought by prosecutors. The legislature has the
 power to define crimes, set punishments, and create a procedural
 system in which some outcomes (but not others) are final. This
 legislative prerogative requires that judges and prosecutors
 respect the substantive law of crimes and the rules of criminal
 procedure but nothing more. [40]

Especially for most scholars of constitutional criminal procedure, these will sound like fighting words. Surely the Constitution's prohibition on double jeopardy means more than this. Surely at some level, considerations of fundamental fairness must trump the desires of the legislature; otherwise, we have converted a doctrine of organic law into simple statute or common law. Especially in the criminal field, we have reason to believe that legislators will pay relatively little attention to the rights of defendants, especially when they impinge on the asserted needs of prosecutors.

Nevertheless, Thomas's view of double jeopardy has considerable attraction. It proves doctrinally elegant, presenting a simpler and more coherent conception of law than is normally found in case decisions. As befits a doctrinalist conception, Thomas's theory does not envision wholesale change in double jeopardy law. Indeed, the primacy of legislative intent which Thomas champions is evident in much of contemporary double jeopardy law. In some important respects, though, we will see that Thomas urges more substantive judicial oversight of legislative action than do current cases. Otherwise, Thomas argues primarily for legal candor. He asks that courts eschew grand statements of double jeopardy policy concerns, which do not in fact guide their decisions, in favor of tracking legislative intent, which Thomas believes is, and should be, the key to double jeopardy doctrine.

Thomas opens his substantive argument with consideration of the best-known double jeopardy problem: whether two or more charges count as the same offense. He first considers the rules that determine when differently named criminal charges--criminal counts charged under different criminal statutes or statutory sections--should count as the same offense for purposes of double jeopardy. If declared different offenses, each may be separately prosecuted and punished. (4) If declared the same offense, they must be prosecuted together and only one may be punished. We can call this the problem of different description.

A common example of the different description problem arises in homicide. Are the various forms of murder and manslaughter the same offenses for double jeopardy purposes? The courts have generally answered in the affirmative. Though differently named and defined, homicide offenses count as the same offense for double jeopardy. Thus, a defendant may be convicted of the first degree murder of an individual or second degree murder of that individual, but not both. The interesting question is why.

Thomas urges what he calls a blameworthiness approach to settle different description problems. A court should try to determine the legislature's intent as to relative coverage of the differently named offenses. Did the legislature mean to prohibit one general form of blameworthiness in this context, with the result that differently named offenses are the same for double jeopardy purposes, or did the legislature conceive of the offenses as involving different forms of blameworthiness that could be separately prosecuted and punished?

To determine singularity or multiplicity of blameworthiness, Thomas draws on work in the philosophy of action, particularly that of Michael Moore, arguing that courts should make a determination about blameworthy act-types [139-42]. (5) The court should engage in substantive analysis to determine if the different statutory definitions signal interest in normatively distinct wrongdoing, or whether the distinctions are normatively trivial. Thus, with respect to standard mens rea forms of homicide, Thomas argues that courts should presume that the legislature meant to prohibit a single act-type of criminal killing [140]. This means that, in accord with current doctrine, first and second-degree murder should count as the same offense.

Thomas comes to a conclusion that differs from current doctrine with respect to felony murder, however. Thomas contends that the offenses of felony murder and the underlying felony on which it is built should be treated as separate offenses because each involves a separate form of blameworthiness, a separate act-type. For example, consider a felony murder based on a killing that occurs during the commission of a rape. Thomas argues that a legislature would likely see a rape and a killing as distinct blameworthy acts because each describes fundamentally different wrongs in the criminal field: the sexual violation of a person and the taking of a person's life. Thus, Thomas argues that double jeopardy should permit each offense to be prosecuted and punished separately, regardless of the particular overlap of their offense definitions [180-83].

The felony murder example demonstrates how Thomas's approach to the different description problem varies from the blockburger rule which currently rules same offense jurisprudence. (6) Although Blockburger resolves many cases in the same way that Thomas would, Thomas argues that its rule elevates form over substance. Under Blockburger, if each offense has a statutory element different from the other, the offenses are separate, regardless of how trivial the element distinctions. Thomas criticizes this approach for allowing courts to avoid the central substantive question of whether legislatures meant (or would have meant had they actually considered the issue) the differently named offenses to be punished or prosecuted separately [138]. This variation on Blockburger represents one of the more important ways that Thomas's approach requires more judicial scrutiny of legislative enactments than does current law.

Thomas employs an extension of the same analytic approach to solve so-called unit of prosecution problems. These involve determining when the act for a particular criminal offense is complete, an issue critical to determining when an offender commits an additional crime of the same type. For example, when an individual enters a bank and robs three tellers of money, one after the other, does he commit three robberies (of each teller) or a single robbery (of the bank)?

Thomas argues that courts should consider unit of prosecution problems a question of legislative intent concerning what he calls act-tokens of blameworthiness. An act-token of blameworthiness represents the basic blameworthy conduct encapsulated in the offense. For each act-type of blameworthiness that the legislature proscribes, the court should try to determine "harm singularity"--the package of act, mens rea, and circumstances which comprise the essential wrong defined by the legislature. This gives the court a substantive concept of when one crime ends and another begins [149-66].

Thomas illustrates his solution to unit of prosecution problems with the classic case of Brown v. Ohio. (7) In Brown, the defendant was initially convicted of joyriding--essentially taking and using another's car without permission. (8) Then a second prosecutor, in a different prosecutorial office (though one within the same jurisdiction for double jeopardy purposes) brought another criminal case against the defendant based on the same unauthorized taking of the car. The second prosecutor utilized two methods to avoid a potential double jeopardy bar. He charged the defendant under a different state statute--car theft--and he charged that the criminal wrong occurred on a different date from the original joyriding, though both offenses involved the same car that had been taken and used over a fairly brief, continuous period. (9) The second of these efforts led to the unit of prosecution problem: does the illegal taking and using of a car over a period of time constitute multiple offenses according to the days or usages of the car, or does it constitute a single offense?

In Brown Thomas notes that each statute involved--auto theft and joyriding--employs verbs of taking and using, suggesting that a single course of taking and using constitutes a single offense of either joyriding or auto theft [153]. (10) Thus, even if the joyriding/theft occurred over a period of several days or even weeks, if it represented a single course of taking and using, it should constitute a single offense. The hardest issue for Thomas here is presented by the verb "operate," which also appears in the joyriding definition. Because to "operate" a car implies the active use of the vehicle, it follows that each use--each time the car is driven, perhaps--may represent a separate blameworthy act of joyriding or theft. Thomas resolves the matter by resort to what he calls a rule of lenity, a presumption that when the legislature uses multiple act-types in an offense definition, they should be considered as a whole, comprising a single act-type for the offense rather than separate act-types. Thus, Thomas argues that the holding in the case--reversing the Ohio Supreme Court's conclusion that the defendant could be charged with multiple instances of auto theft and joyriding--was correct [154-55]. (11)

The other major set of issues that arise under double jeopardy involves determining when one prosecution ends and another begins. Current law resolves this by focusing on the beginning and end of a case: when jeopardy attaches and how the case concludes. Thomas argues that this is mistaken; the law should concern itself only with case endings. According to Thomas, only when we have a final verdict or its equivalent can a double jeopardy bar arise as to a subsequent case. The critical issue, therefore, is what constitutes a final verdict or its equivalent [214-15].

Thomas asserts that the basic definition of a verdict depends on legislative intent [264-69]. When the legislature has not spoken on the issue explicitly, the role of the courts is to determine what the legislature intended to constitute a verdict. The bottom line for Thomas here, as in most areas of double jeopardy, is a simply stated rule: a verdict is either a formal ruling resolving the guilt of the defendant (acquittal or conviction), a disposition based on a factual finding favorable to the defendant, or a mistrial when it seems likely that a defendant would have won an acquittal had the case proceeded to verdict.

Formal verdicts present relatively few double jeopardy problems--a conviction or an acquittal that is final, that is, not subject to direct or collateral challenge, clearly represents a bar to further prosecution. In Thomas's language, such verdicts represent final determinations of legislatively-defined blameworthiness that bar subsequent criminal actions based on the same legislatively-defined blameworthiness. The only serious issue involving formal verdicts concerns acquittal, particularly an acquittal obtained through legal error or by fraud.

Under current double jeopardy law, acquittals are sacred and cannot be appealed, no matter how erroneous. (12) Many believe that the explanation for this anomalous rule is to protect jury nullification, a historically core, though certainly controversial feature, of the right to jury trial. If the jury can acquit against the law, then review of acquittals for legal error, and perhaps even for fraud, makes no sense. (13) Thomas disagrees. Looking to the language of the amendment and the concept that that language suggests (that the prohibition assumes a prior, final verdict), he argues that restrictions on appealing acquittals must come either from nonconstitutional procedural rules about prosecution appeals, or from the separate constitutional right to jury trial. Thomas sees no double jeopardy bar to appeals of acquittals either on grounds that the verdict was infected by legal error or that it was obtained by fraud [271]. (14)

Perhaps the most troublesome cases in this area involve mistrials: does double jeopardy permit a retrial following a mistrial determination? Here, Thomas tackles current jurisprudence--hard--with a critique of the manifest necessity doctrine that currently determines the issue. He argues that in practice the rule is manifestly empty. Under current law, a mistrial will bar further trials unless a subsequent court determines that the mistrial was granted due to manifest necessity. A hung jury is a classic instance of such necessity. The problem, as Thomas points out, is that courts nearly always find manifest necessity even without a hung jury. There exist no clear criteria by which to decide that the mistrial grant was unnecessary, except where the mistrial created obvious unfairness to a defendant, that is, where it deprived the defendant of a clear chance at an acquittal. This realist observation informs Thomas's proposed rule which seeks to identify what he calls acquittal equivalents [218]. According to Thomas, mistrials should never be considered verdicts barring successive prosecution unless a subsequent court determines that the mistrial deprived the defendant of a likely opportunity for an acquittal [237-50]. This determination will turn on whether the defendant can show the prosecution's case was likely factually insufficient as a matter of law, that is, that it would not have been adequate to be submitted to the jury [237-55]. (15) As in other aspects of Thomas's double jeopardy argument, his solution seems to state a far more prosecution-oriented approach than current case law, but in fact it may result in more favorable decisions to defendants than under current doctrine, where the promise of manifest necessity almost always succumbs to the judicial desire to give the prosecution a full opportunity to win a conviction.

A Preliminary Evaluation: The Quality of Doctrinal Craftsmanship

So does it work? Does Thomas actually make sense of double jeopardy law in all of its many permutations? The answer depends on the criteria of success we employ. Thomas clearly wishes his book to be judged by the standards of traditional doctrinal scholarship. Consequently, we should begin the critique by asking: Does the book provide well-researched, clearly written, coherent arguments faithful to precedents and legal language that promise an improved means of dealing with difficult legal questions? The answer to this query must be affirmative. Thomas presents a coherent and elegant theory of double jeopardy that promises substantial assistance to courts in the resolution of a number of difficult issues working within traditional doctrine.

Thomas writes exceptionally clearly, depicting the legal landscape in sharp detail. His language is plain. For example, he identifies the main models of double jeopardy theory as simply Models 1, 2, and 3 [8-14]. Clearly absorbed by the intellectual puzzle of double jeopardy, he makes no effort to entice the reader with rhetorical or dramatic devices. Instead, he engages with seriousness and rigor, carefully laying out his plan of argument and then sticking to it. He only allows himself rhetorical flourishes in the details of his argument when the prose can become sharp and evocative, especially in his criticisms of free-floating policy approaches to particular problems. (16)

By frequently anticipating arguments in future chapters and recapping those of preceding chapters, Thomas makes it easy for the reader both to gain an early concept of the whole work and to read the book selectively, if desired. Thomas provides clear doctrinal history, invariably beginning consideration of a particular doctrine with a simple account of its origins in early English history and subsequent development into modem-day forms. Those confused by the back-and-forth, here-and-there nature of the United States Supreme Court's jurisprudence will often find clarity here. Thomas's discussion of the Court's recent same-offense debacle in the opposing cases of Grady v. Corbin (17) and United States v. Dixon (18) is a model of lucid explication [52-57].

Thomas deals forthrightly with the work of others in the field, both scholars and courts, giving praise where he thinks it due and criticism where he believes it merited. The seriousness of Thomas's purpose and his commitment to the rule of law give the book a weight and grace unusual in an era accustomed to more informal, personalized advocacy.

At least to this nonspecialist--and here the caveat inherent in a nonspecialist label must be taken especially seriously, for as this work demonstrates, mistakes by the most sophisticated generalists in this area are legion--the doctrinal arguments work. Thomas's insistence on legislative intent as the double jeopardy foundation, with a rule structure made up of judicially-created presumptions reconciles the precedents about as well--as completely, as elegantly, and in as principled a fashion--as probably can be done.

Thomas's approach shows the benefits of long, hard, and broad thought devoted to one area of law. He does not simply focus on the obvious, but recalls the missing. In his discussion of the civil versus criminal distinction, for example, he notes how the Supreme Court has seemingly forgotten the important role that same offense analysis should play here [126]. He consistently thinks across doctrinal lines, both within double jeopardy and without, making persuasive connections with other constitutional criminal protections.

The most serious caveat attached to this appreciation of craft is that the practical test of Thomas's arguments must come in individual case applications by lawyers and judges. Only lawyers who must make arguments in particular cases, and judges who must resolve them, will be able to tell us the practical value of these ideas. For however lucid, accurate, and complete a map may appear to be on its face, it will be of little use if it proves misleading in real-world navigation. I have no reason to believe this is the case here, but the fact remains that reading a map and actually following it are quite different things.

Legislative Intent: Defending Doctrine against Legal Realism

There is a larger critical question extant. Even if it is true that legislative intent represents the core of contemporary federal double jeopardy doctrine, is that right? Can such an important doctrine of constitutional law actually be nothing more than a complex set of rules of statutory interpretation? To answer these questions we begin with Thomas's double jeopardy arguments on behalf of legislative intent, but soon find ourselves confronting the larger, jurisprudential conflict between traditional doctrinalism and legal realism. (19)

Thomas's ability to sell his vision of double jeopardy as legislative intent rests primarily on two points: (1) that because legislative intent determinations usually turn on presumptions fashioned by courts, courts in fact have considerable independent responsibility in shaping double jeopardy doctrine even under a legislative intent theory; and (2) that unlike many other constitutional provisions, double jeopardy lacks an underlying policy paradigm from which answers can be drawn to complex doctrinal questions.

The independent power granted courts under Thomas's legislative intent scheme should not be underestimated. (20) Current law suggests that the actual shape of double jeopardy law depends less on what theory of double jeopardy a court adopts than on its particular understanding of how that theory applies in a given situation. For example, in resolving a different description problem, it may matter less whether the court defers to legislative intent than how it determines that intent. Even assuming that legislative intent is paramount, there are critical differences between a mechanistic, Blockburger-style presumption about that intent and substantive analysis of culpability factors, the approach advocated by Thomas.

The judicial ability to shape intent presumptions does not, however, change the essential fact that under Thomas's scheme a legislature has final say over many aspects of prosecutorial power within the realm of double jeopardy. This means that the success of Thomas's argument rests heavily on his observation that double jeopardy lacks an underlying policy paradigm which can guide judicial decisionmaking. In the author's view, while we may share a general understanding of the need to restrict repeated prosecutions for the same offense, and while this understanding is rooted in Anglo-American legal history, that understanding proves too vague to decide the complexities of contemporary double jeopardy issues. We just do not have reliable, historically-based intuitions about double jeopardy to tell us whether two differently named offenses should be considered the same for constitutional purposes or whether a particular dismissal should count as an acquittal [46-48]. (21) To resolve these issues we need formal precedent, language, and doctrinal coherence. In Thomas's view, each of these sources points up the centrality of legislative intent.

I want to come at Thomas's argument here from the side, not by asking whether there is in fact an underlying paradigm that can meaningfully guide double jeopardy law, but by exploring the jurisprudential values that drive much of Thomas's theory. For it soon becomes clear in reading Double Jeopardy that the reason that Thomas finds historically-rooted double jeopardy values insufficient to inform open-ended double jeopardy rules is that he strongly objects to open-ended rules in double jeopardy. In short, Thomas rejects a policy-oriented approach because this would ruin the elegance of a scheme comprised of hard-edged, technical rules. In this sense the book represents an extended argument for traditional doctrinalism and against legal realism.

Thomas presumes throughout that the language and precedents of Anglo-American double jeopardy provide clear, coherent, and relatively complete rules to resolve a wide range of controversies. Although he concedes that some double jeopardy questions will be difficult and require hard and controversial analysis by courts, he firmly rejects the idea that courts should look directly to double jeopardy policy, such as avoiding prosecutorial harassment, to decide cases. He dismisses the realist notion that courts should decide double jeopardy issues based on concerns with preventing governmental oppression and providing adequate opportunity to litigate, as legally invalid and normatively unwise.

Thomas works almost entirely within what legal historian Robert W. Gordon has called the law box--the traditional sources of law in constitutions, statutes, appellate cases, and historically-revered commentary. (22) He does not discuss a series of major changes in the criminal justice world of the last generation that arguably might alter basic presumptions of double jeopardy. The ratcheting up of criminal penalties generally, along with the advent of determinate sentences, sentence enhancements, and a host of minimum mandatory sentences, the expansion of conspiracy doctrine and other forms of inchoate liability, and many other changes inspired by the war on drugs do not appear in his analysis, historical or otherwise. These lie outside the formal bounds of double jeopardy concerns.

Thomas's main criteria are linguistic and historical faithfulness, (23) simplicity, reliability and logical coherence. He seeks to arrange the existing pieces of the legal puzzle in the most coherent and complete picture he can manage. As we have seen, this requires in some instances a considerable rearrangement of decisions and their rationales, but it remains work that takes place within the standard assumptions of precedent and timeless rule exegesis. The rules and rule precedents are there to be followed, not reshaped with every new case.

In his presentation Thomas often sounds defiantly old-fashioned. He promotes hard-edged rules for the simplicity and reliability that they promise, often expressing an aesthetic appreciation for their spare elegance. Meanwhile, realist-inspired, soft-edged rules consistently draw fire. Here, for example, is Thomas's critique of past efforts to create a same offense doctrine directly informed by concerns with prosecutorial harassment, a doctrine that would require case-by-case investigation of prosecutorial motivation.

The troubling aspect of using harassment policy to inform same-offense analysis, at least for someone who values hard-edged rules, is that the outcome depends on the prosecutor's motives in bringing two trials. It may be old-fashioned, but it seems to me that auto theft and joyriding are either the same offense on a set of facts or they are not. If they are the same offense, they are the same offense, even if the prosecutor has the most benevolent motives in bringing two trials--indeed, regardless of whether the charges are brought in one trial or in two. [66]

This passage illustrates Thomas's reverence for the legal language of double jeopardy. He pledges repeated allegiance to the principle, often contested in modern constitutional law, that the legal meaning of a rule must bear a close linguistic connection to the text of the constitutional provision. For example, in tracking the civil versus criminal distinction--a critical one for double jeopardy purposes--Thomas finds guidance in the constitutional language prohibiting second jeopardies "of life or limb." Even as he recognizes that the modern meaning of these words must differ from their original meaning in early English law, because of changes in legal systems, he argues that the words should still directly guide legal decisions. In criticizing the Supreme Court's interpretation in Kurth Ranch, (24) Thomas writes: "to suggest that a proceeding to collect taxes places a defendant's `life or limb' in jeopardy is linguistically a startling proposition. There is no risk of incarceration and, therefore, no sense (metaphorical or otherwise) in which the taxpayer's limbs are in jeopardy. When law gets that far removed from common usage and common understanding, it cries out for correction" [124-25].

Thomas's traditionalism about rule analysis is perhaps most obvious in his criticism of double jeopardy rules dependent on generalized policy considerations. Consider his treatment of Justice Black's invariably quoted dicta in Green v. United States. Black wrote: "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 live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." (25) Thomas responds:
 That this rationale is quoted so often suggests that it expresses
 some underlying truth about double jeopardy. Yet upon close
 examination, the florid language is not very illuminating. How are
 we to understand Black's statement? The standard interpretation
 focuses on the harm of forcing a defendant to endure a second
 trial, a harm the Court refers to as "harassment." ... But concern
 with harassment can be understood in two ways, which turn out
 to be either hopelessly flawed as a policy matter or hopelessly
 soft-edged. [50]

Thomas argues that an anti-harassment rule would either require absolutely no second proceedings, which would impose intolerable costs on both defendants and the state in terms of review of the first proceeding, or would require a hopelessly discretionary analysis of prosecutorial motivation inconsistent with the clause's same-offense language [50-52].

The contemporary legal realist response to this sort of reasoning is likely to be an expression of astonishment. For most of the twentieth century, from the original legal realists of the twenties to the various critical schools of the eighties and nineties, scholars have condemned the narrow focus of traditional doctrine. (26) Critics have argued that legal decisionmakers can no longer hide behind the fig leaves of doctrinal language and rationales and must concede that these are insufficient to reliably determine results. Instead of dissembling about their own policy preferences, courts should openly take up the policy implications of their decisions. Where needed, courts should look beyond legal sources to draw insight from other fields such as economics or sociology or psychology, or from ideological constructs such as feminism or critical race theory. (27) From such a perspective Thomas's notion that the language of the double jeopardy clause and the writings of respected commentators demonstrate the centrality of legislative intent reading, and that such intent can be reliably ascertained by subsequent courts, appears naive at best. (28)

Thomas is certainly aware of the legal realist critique. In the book he often defends his arguments against it explicitly, though usually by relying on the core values of doctrinal analysis. He also displays a willingness to step outside the traditional law box to draw guidance from nonlegal fields, most notably from philosophy of action, when needed to support his doctrinal reasoning. Perhaps most revealing, in his non-double jeopardy scholarship Thomas has consistently shown a much greater interest in and facility with the relevant social science literature than most legal scholars in the criminal area. Indeed, his non-double jeopardy scholarship demonstrates a keen interest in empirical research into the way the legal system actually functions, a hallmark of legal realism. (29) All this suggests that Thomas finds something special about double jeopardy law that requires a more traditional approach.

In a moment I will track out some interesting possibilities of Thomas's proposed genre distinction between double jeopardy and other rules of constitutional criminal procedure, but first we need to answer a more basic question: does Thomas win his battle with realism? The unsurprising answer is no. The answer should come as no shock because frontal battles between legal ideologies never produce clear victories. They are like struggles between apples and oranges, men and women, or the young and the old that feature a rivalry of different perspectives, each valuable in its own right, but none sufficient for all purposes.

In the end, Thomas's defense of doctrinalism proves incomplete because it never fully acknowledges the power of the realist critique. Thomas is himself so persuaded of the superiority of hard-edged rules, largely because of his awareness of the faults of soft-edged rules in double jeopardy, that he does not fully explore the costs of his own approach. What if it is true that the voting public's fears of crime have inspired a legislative frenzy of overlapping crime and penalty provisions resulting in an unprecedented wealth of opportunities for oppressive prosecutions? (30) At some point does not this become a constitutional problem, even when legislative intent to increase prosecutorial power is clear? Thomas responds no, because double jeopardy is rooted in traditional doctrinalism, because hard-edged rules always defeat soft-edged here. As a jurisprudential argument, this will not suffice.

The point here is not that Thomas is necessarily wrong about double jeopardy; courts may be justified in maintaining an especially narrow doctrinal focus in this area of constitutional law. The point is that Thomas does not supply a convincing argument for the approach because he excludes from consideration matters that more realist commentators believe are central to the law. The issue may be framed in terms of fairness. Thomas says that in double jeopardy, fairness is entirely defined by a traditional reading of text and precedent. (31) Meanwhile, double jeopardy realists maintain that other concerns--particularly the potential for prosecutorial harassment and oppression--are vital. For Thomas to persuade those skeptical of the wonders of hard-edged rules that his view is correct, he must address the substance of realist concerns. Is it true that his approach will produce significant harassment and oppression of the criminally accused? To the extent it does, are there countervailing, systemic considerations which nevertheless support a narrow view of fairness? To win this debate, it must be joined. Simply declaring the other side's concerns out of bounds will not do.

This jurisprudential failure would count as a more serious mark against the book were it not so common in legal scholarship. In fact, few legal scholars today, whether realist or doctrinalist, seriously consider their rivals' perspective. Wishing to make the clearest and most powerful-sounding argument, most scholars simply adopt the armament of a particular jurisprudential position and charge forward. The resulting clash of ideologies can produce insights, but it can also widen the gap between perspectives in a way that undercuts one of the primary values of scholarly debate. Surely the time has come, after nearly a century of vigorous debate between these powerful rivals to the jurisprudential throne, to consider a different means of engagement between doctrinalism and realism. Surely the time has come to recognize that the tension between doctrinalism and realism is central to our law, that the question is not which will emerge triumphant, but how, in a particular legal situation, their distinct approaches can best be reconciled.

Looking Beyond Double Jeopardy: Toward a Doctrinalist/Realist Taxonomy of Procedural Rules

Lurking in Thomas's book there is the suggestion of a larger jurisprudential argument concerning doctrinalism and realism that has intriguing possibilities which extend well beyond double jeopardy. (32) As noted previously, Thomas suggests at a number of places in the book that the double jeopardy clause is jurisprudentially distinct from other procedural provisions of the Bill of Rights. (33) We have seen how he has contrasted the (perhaps) paradigm-less double jeopardy clause with other clauses that have richer, more meaningful historical paradigms, such as the right to jury trial [47]. In several contexts, Thomas suggests that courts might consider related justice concerns under other constitutional provisions. Thus, he maintains that considerations of the unfairness of retrial following a mistrial should come under the due process clause rather than be subject to verdict analysis under double jeopardy [253-55]. For the most part these suggestions are made to defend the author-defined borders of double jeopardy rather than to develop a larger account of constitutional jurisprudence. Nevertheless, when linked to the doctrinalist-realist conflict, they have implications that make a brief consideration worthwhile.

Thomas's distinction between constitutional provisions raises the possibility that some doctrinalist-realism conflict might be eased if we recognized that different rules, even of the same legal type, may have different jurisprudential natures. So we might say that even within the realm of constitutional criminal procedure, different provisions fall in different locations along a jurisprudential continuum that extends from pure doctrinalism to pure realism. Under such a view, some constitutional rules would be subject to highly traditional, largely within-the-law-box decision making while others might be subject to more open-ended, policy-oriented, interpretation. For example, we might decide that in determining the nature of a mistrial, courts should defer to legislative definitions of a verdict while in assessing the due process requirements of guilty pleas, courts may be obliged to independently evaluate the fairness of a given penal scheme enacted by the legislature.

To make this scheme work, we need criteria by which to locate jurisprudentially distinct rules. We would need to know what it is about the double jeopardy clause that argues for a more doctrinalist approach than the due process clause, for example. We might look to two general considerations: rule characteristics and institutional competence. Rule characteristics involve those general features of the rule which tend to support a traditional or a realist interpretation. Institutional competence concerns the relative abilities of courts to oversee policy in the area as opposed to other branches of government.

Rule characteristics may be divided into three subcategories: (1) the extent of judicial guidance provided by rule language and doctrinal history; (2) the function of the rule and what this suggests about the need for hard versus soft-edged interpretations; and (3) the extent to which the rule appeals to larger justice values or to more technical concerns relating primarily to legal system functioning.

Although the point certainly remains debatable, (34) Thomas makes an eloquent argument for the richness of textual and doctrinal guidance provided by the double jeopardy clause. He demonstrates that much can be made of a relatively few words of text in combination with an extensive history of legal precedents. As to function, the critical point is that double jeopardy constitutes a rule of constitutional jurisdiction. It sets absolute limits on the power of a court to hear a cause and the prosecution to bring it. This means that the consequences of double jeopardy judgments for the public's interest in full prosecution can be severe. (35) These features tend to argue for hard-edged rules that provide clear notice. Finally, while the basic rule of double jeopardy states a widely accepted principle of justice, Thomas makes a strong argument that its critical details involve technical issues rather than larger policy considerations. (36) This is not an amendment ensuring equal treatment of all citizens or due process, provisions which by their terms seem to demand that courts consider larger conceptions of justice extant in the society.

With regard to institutional competence, we start with the presumption that in a democracy, legal policy should be set by elected officials. The question thus becomes whether the particular provision presents an exception to the general rule of legislative and executive deference. Is there any reason to believe that, as to this particular issue, courts may be better situated to make policy judgments than legislators, prosecutors, or other government officials? Again double jeopardy presents an interesting test case.

The whole point of the double jeopardy bar is to restrain the government from overzealous prosecutions. In this regard it is consistent with a wide range of constitutional provisions designed to check executive and legislative exercise of penal power. This does not mean that courts are necessarily better situated than legislators to evaluate adjudication policy matters such as successive prosecutions or collateral estoppel, however. To put this another way, we might ask: Is double jeopardy an area where we have particular reason to fear legislative abuses? At least at first glance, the answer appears to be no. Double jeopardy does not speak to the penal issues that concern legislators most, namely how guilt is established and the degree of its punishment. Legislators appear to have relatively little incentive to oppress those accused of crime by measures such as dividing offenses into tiny subparts to allow for multiple prosecutions or by radically altering verdict rules. Legislators wishing to be tough on crime--and certainly we have become familiar with the type over the last generation--have more promising legal avenues in changing definitions of mens rea, evidence rules, and sentencing provisions. In general, the political benefits of changes aimed at successive prosecutions are minimal while the potential costs in terms of penal efficiency are substantial. (37)

The no-likely-abuse argument has serious limits, however. That double jeopardy issues generally are not subject to legislative abuse does not mean that all issues within its purview should be considered immune from majoritarian temptations to excess. Consider, for example, the civil versus criminal distinction, a critical one for constitutional regulation in double jeopardy as it is in many other areas of criminal procedure. Thomas argues, consistent with his theory and with current Supreme Court decisions, that the distinction depends on legislative intent [39-40]. As a result, the legislature need only speak clearly in order to label as civil a legal proceeding against an individual, thus avoiding double jeopardy concerns. Yet recent developments in civil forfeiture, where we have seen both legislative and executive branches becoming increasingly aggressive in the employment of "civil" sanctions, and sexual predator laws featuring the expansion of civil commitment powers present clear instances of government threatening enormous detriments to individuals suspected of involvement in crimes, detriments that in some instances exceed those available in a criminal proceeding. (38) Here is a great way for elected officials to appear tough on crime; perhaps here courts should therefore become more realist in their double jeopardy analysis.

By way of contrast, consider the same analysis applied to the eighth amendment's prohibition against cruel and unusual punishment. The constitutional text of the eighth amendment's punishment clause is notoriously vague. (39) Nor does the doctrinal history of the clause provide reliable guidance. Information about framers' intent is sparse, and what we have does not match up well with the realities of modern criminal justice. Similarly, the modern history of Supreme Court interpretations has been marked by a wide range of approaches. (40) In sum, the relative meagerness of traditional legal materials favors realist rather than doctrinalist interpretation.

By its language the eighth amendment punishment clause directs judicial attention to a basic issue of justice: the limits on the state's punitive powers following a conviction. This is not a technical issue of interest primarily to system insiders, where decisions necessarily involve rule technicalities rather than the implications of a larger concept of justice. The cruel and unusual clause instead implicates moral policies such as relative desert (comparing the retributive desert of the defendant to that of other defendants with similar or lesser punishments) or utilitarian parsimony (the least punishment needed to satisfy deterrent goals). Again the rule seems to invite policy-oriented analysis, in contrast to the double jeopardy clause. (41)

Finally, I would argue that the eighth amendment concerns an area of legal decision making where historically we have serious reason to suspect legislative excess. Legislators enact crimes and punishments. In so doing they generally fixate on the worst possible cases which may arise under the provision. Courts by contrast must resolve cases of real people with particular life histories who have committed particular deeds. Judges must decide the fate of flesh and blood human beings, engaged in morally complex behavior, not the simplistic cases often anticipated by legislators. We also know that elected politicians often legislate in the heat of the moment, in reaction to a particular public concern, which they wish to address with suitably dramatic (read harsh) legislation. The result is a "crime of the week" phenomenon, in which legislators zealously target the latest criminal concern with little or no concern for the systemic effects of their enactments. (42) The product of these efforts are often new laws that create major disproportions in the punishment of crimes of similar severity. In this context courts have significant advantages in policy review stemming from their relative distance in time and office from immediate public concerns and from their greater appreciation for the interrelationship of different provisions and penalties within a criminal code. Again this argues for a more realist approach to cruel and unusual punishment.

For now, the continuum concept must remain suggestive. It is a notion only hinted at by the work under review; certainly its elucidation here is incomplete. (43) The point of this brief digression into jurisprudence has not been to set out a grand scheme of legal interpretation but to show how we might start to conceive of a legal universe in which doctrinal and realist approaches not only coexist but rationally coexist.

In Conclusion

George Thomas's Double Jeopardy: The History, The Law makes a significant contribution to our grasp of the constitutional law of criminal procedure. Its careful, wide-ranging exploration and elucidation of double jeopardy principles promises to provide judges, lawyers, and academics a valuable guide to particularly difficult legal terrain. Like any serious legal commentator, Thomas aims to produce more than a map of current law, though. He not only outlines already-existing structures, but imagines the landscape as it should be. Toward this end he has produced an elegant reconceptualization of double jeopardy law which future legal writers, both judicial and academic, will have to take seriously.

Perhaps not as significantly, but still worthy of note, Thomas has produced a book-length argument for legal doctrinalism. From start to finish the author proudly champions old-fashioned virtues such as linguistic precision, predictability, and coherence, not a minor undertaking in this post-modem age when many scoff at such notions. That Thomas falls short in his effort to persuade skeptics of the complete superiority of traditional doctrinalism and its treasured hard-edged rules over realism's soft-edged, fairness-oriented rules does not negate the value of the effort. To reach a serious reconciliation of realist and doctrinalist approaches, we need strong advocates for both. But more than anything we need scholars who recognize that certain ideological conflicts are endemic to our present condition and are not susceptible of final solution. The question is not whether doctrinalism will defeat realism, or the reverse, but how, in any given situation, we may construct an interpretive method that recognizes the relative value of each.


(1) Thomas's double jeopardy articles include (but are not limited to): A Blameworthy Approach to the Double Jeopardy Same Offense Problem, 83 CALIF. L. REV. 1027 (1995); A Modest Proposal to Save the Double Jeopardy Clause, 69 WASH. U.L.Q. 195 (1991); An Elegant Theory of Double Jeopardy, 1988 U. ILL. L. REV. 827; Successive Prosecutions for the Same Offense: In Search of a Definition, 71 IOWA L.REV. 323 (1986); RICO Prosecutions and the Double Jeopardy/Multiple Punishment Problem, 78 Nw. U.L. REV. 1359 (1984). As to other scholars in the field, I should not paint with too broad a brush. A number of other academics have also made repeated forays into this territory. A sampling of recent work: Amar, Double Jeopardy taw Made Simple, 106 YALE L.J. 1807 (1997); Herman, Reconstructing the Bill of Rights: A Reply to Amar and Marcus's Triple Play on Double Jeopardy, 31 AM. CRIM. L. REV. 1 (1993); Klein, Review Essay: Double Jeopardy's Demise, 88 CALIF. L. REV. 1001 (2000) (reviewing Thomas's DOUBLE JEOPARDY); King, Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties, 144 U. PA. L. REV. 101 (1995); Poulin, Double Jeopardy and Judicial Accountability: When Is an Acquittal not an Acquittal? 27 ARIZ. ST. LJ. 953 (1995); Rudstein, Double Jeopardy and the Fraudulently-Obtained Acquittal, 60 Mo. L. REV. 607 (1995).

(2) To mix metaphors only a little, Justice Rehnquist has described double jeopardy law as a "veritable Sargasso sea which could not fail to challenge the most intrepid judicial navigator," Albernaz v. United States, 450 U.S. 333, 343 (1981).

(3) G.C. THOMAS III, DOUBLE JEOPARDY: THE HISTORY, THE LAW(1998) (deriving this principle from the case of Schad v. Arizona, 501 U.S. 624 (1991)). All bracketed page numbers in the text refer to this work.

(4) There is some controversy in the double jeopardy literature as to whether the problem of same offense should be treated differently for purposes of multiple prosecutions and multiple punishments. Thomas insists, against some commentators, but largely in accord with current law, that the same rule should apply in both contexts. Id. at 58-61. Rejecting arguments about the special harassment harms of multiple punishment, Thomas argues that since both multiple trials and multiple punishments are governed by the same constitutional language, the same analytic approach should govern. Id.

(5) Citing M.S. MOORE, ACT AND CRIME (1993).

(6) Blockburger v. United States, 284 U.S. 299 (1932).

(7) 432 U.S. 161 (1977); G.C. THOMAS, supra note 3, at 152-56.

(8) In the case, the offense is referred to by its popular name of joyriding. In legal language, defendant was alleged to have unlawfully and purposefully taken a motor vehicle without the owner's consent, 432 U.S. at 162 n.1.

(9) As a result of the second prosecutor's charging decisions, the case involved both sorts of same offense problems: different description and unit of prosecution. Here we are only concerned with the latter.

(10) Again, the concern here is with unit of prosecution, not different description.

(11) Thomas also makes use of act-token and act-type analysis in resolving problems in compound offenses, dual sovereignty, and collateral estoppel [178-83,199-94, 213].

(12) Sanabria v. United States, 437 U.S. 54, 68 (1978); Fong Foov. United States, 369 U.S. 141 (1962); United States v. Ball, 163 U.S. 662, 671 (1896). To be absolutely accurate, no first-verdict acquittals may be appealed. A ruling that counts as an acquittal, entered after a conviction, probably can be appealed under current double jeopardy law because success on appeal would not require a new trial, just reinstatement of the original conviction. See United States v. Scott, 437 U.S. 82, 91 n.7 (1978); United States v. Wilson, 420 U.S. 332 (1975); United States v. Steed, 646 F.2d 136 (4th Cir. 1981); United States v. Dreitzler, 577 F.2d 539 (9th Cir. 1978). This sequence of events can occur when the jury convicts and trial judge dismisses for insufficient evidence or an intermediate appellate court makes a similar judgment. See W.R. LAFAVE, J.H. ISRAEL & N.J. KING, CRIMINAL PROCEDURE 1194-85 (3d ed. 2000).

(13) See Rudstein, supra note 1 and Poulin, supra note 1.

(14) Thomas notes that jury nullification might be protected by the sixth amendment right to jury trial rather than by double jeopardy [218].

(15) Thomas notes that another constitutional provision may govern here. He suggests that due process may provide an independent check on reprosecution following a mistrial [253-55].

(16) E.g.: "At this point, the argument is vulnerable to the legal-realist claim that something as vague as acquittal equivalence opens the way, at best, to interpretational differences and, at worst, to the infinite regress to the bargain basement of legal realism where each case requires its own rule. It is a fair criticism but some soft-edged principle cannot be avoided" [231].

(17) 495 U.S. 508 (1990).

(18) 509U.S. 688 (1993).

(19) I use doctrinalism and realism in a very broad sense here to refer to broadly opposing philosophies of legal analysis. In essence the divide concerns the extent to which proper legal decisions are determined by text, original intent, and precedent. It should be noted that within each of these philosophic camps there are contained many different factions, whose differences may prove more important in particular cases than those between the two groups writ large. For example, in the constitutional area, we might distinguish those doctrinalists who value text over all, from those who believe in original intent, from those most impressed by stare decisis. Among realists the intra-party differences can be even greater, particularly with regard to the source of legal values. These may be drawn from economics or psychology or philosophies of social justice or of law or any number of other sources. Despite the importance of such within-group distinctions, I employ a broad differentiation of the two philosophies here because it proves useful to elucidate a generally discernable difference in approach to double jeopardy problems which has some application to other areas of law.

(20) Certainly Thomas does not. He makes the point early on: "Because the legislature almost never makes its intent known, these presumptions are the principal focus of the book, and decide almost all the cases. Thus, the role of courts is no less central in a double jeopardy world built on legislative prerogative than a world in which courts create the concepts of `same offense' and `jeopardy' out of thin air" [41].

(21) Thomas argues here that double jeopardy's paradigm case--the central, undisputable situation where it applies--is too narrow to provide useful guidance. In essence, the paradigm case of double jeopardy violation involves a situation not likely to arise in modern times and does not provide clear guidance for those problematic cases that are likely to occur today.

(22) Gordon, Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography, 10 LAW & SOC'Y REV. 9, 10-11 (1975).

(23) But it is important to note that Thomas's notion of history is a narrow one, tied closely to the constitutional text and certain privileged commentators, such as Blackstone. This can be illustrated by Thomas's treatment of prosecution appeals of acquittals. Almost in passing, Thomas makes the virtually heretical argument that the prosecution should be allowed to appeal defendant acquittals if the appeal is based on a claim of legal error [270-71]. Citing the similar views of Justices Oliver Wendell Holmes and Benjamin N. Cardozo, Thomas argues that, if permitted by statutory law, the prosecution should be able to appeal acquittals to contest legal errors on the ground that, the determination of blameworthiness contained in the acquittal decision is not final until an appeal resolves its legal validity. Thomas is not concerned that this would contradict one of the few clear absolutes that U.S. courts have established in the double jeopardy area over the last century. In United States v. Linen Supply Co., 430 U.S. 564, 571 (1977), the Court described the finality of even erroneous acquittals as "[p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence." See also cases cited at note 12 supra. This indicates that historical experience in the sense of the settled past practices of legal institutions is not a deciding factor for Thomas, at least not when it contradicts his larger theoretical scheme. The larger principle is that in Thomas's double jeopardy world theoretical tidiness triumphs over real world messiness, even when the latter is historically rooted.

(24) 511U.S. 767(1994).

(25) 355U. S. 184,187-88 (1957).

(26) On a personal note, I recall giving a talk before a law school faculty several years ago about a particular doctrine of murder. One of the attendees, reputed to be one of the brightest of the group, and soon to ascend to one of the most prestigious schools in the country, commented to me: "I didn't know people were still doing that kind of scholarship." The comment could have been meant in a mildly positive sense, an appreciation of scholarly quaintness, a sort of wow-and-I-thought-no-one-still-used-quill-pens wonderment. More likely it represented a half-veiled astonishment at the backward ways of those in the intellectual hinterlands of legal academia.

(27) For an historical collection of realist writings, see AMERICAN REALISM (ed. W.M. Fisher III, M.J. Horwitz & T.A. Reed 1993).

(28) See generally Klein, supra note I & especially at 1019-27.

(29) See, e.g., THE MIRANDA DEBATE: LAW, JUSTICE, AND POLICING (ed. R.A. Leo & G.C. Thomas III, 1998); Law's Social Consequences, 51 RUTG. L. REV. 845 (1999); Terry v. Ohio in the Trenches: A Glimpse of How Courts Apply `Reasonable Suspicion,' 72 ST. JOHN'S L.REV. 1025 (1998); Is Miranda A Real World Failure? A Plea for More (And Better) Empirical Evidence, 43 U.C.L.A.L. REV. 821 (1996); Thomas & Husak, Date Rape, Social Convention and Reasonable Mistakes, 11 LAW & PHIL. 95 (1992).

(30) See generally Klein, supra note 1.

(31) Thus Thomas maintains that, "it is legal realism of the first magnitude to use unfairness as a synonym for double jeopardy. While a concern for fairness may partially explain the long history of double jeopardy prohibitions, the only way fairness manifests itself in a hard-edged view of double jeopardy is to prevent more than one jeopardy for the same offense" [145].

(32) For those who disagree with the argument that follows, an important caveat--the "suggestion" may be more in the eyes of the reviewer than in the intentions of the book's author. We all tend to see what we most wish to find.

(33) For example, he argues that due process and the cruel and unusual punishments clause of the eighth amendment constitute the only constitutional limits on the legislature's power to create criminal offenses; double jeopardy has no such role [21-23]. Similarly, concerns with excess punishment fall under the eighth amendment, not as multiple punishment claims under double jeopardy [59], and fairness concerns related to retrials sound in due process, not double jeopardy [253-55], as these involve balancing appropriate to the former and not the all or nothing was-there-a-verdict analysis that Thomas sees as key to double jeopardy here. But cf. Klein, supra note 1 at 1015-16. See also note 12 supra.

(34) Again Professor Klein provides a strong view to the contrary in her review of Thomas's book. See Klein, supra note 1.

(35) E.g., Grady v. Corbin, 495 U.S. 508 (1990) (homicide prosecution precluded because of previous conviction for vehicular violations related to fatal accident). The case's double jeopardy analysis was subsequently overturned by the Court in United States v. Dixon 509 U.S. 688 (1993). A better-known example of the potential procecutorial costs comes in the Rodney King beating cases in Los Angeles. Without the dual sovereignty doctrine, the case would likely have been terminated with the first state trial that ended in acquittals of all officers on all significant counts. Outrage at the acquittals led to widespread rioting in the city. The dual sovereignty doctrine did however permit a federal prosecution of some of the officers for civil rights violations. See Amar & Marcus, Double Jeopardy Law After Rodney King, 95 COLUM. L. REV. 1 (1995). Obviously, the costs to defendants, their families, and their supporters of permitting successive prosecutions are also high, but they generally do not implicate the public interest as directly as does an opposite holding.

(36) This point is strongly contested by Professor Klein. See supra note 1, especially at 1015-16,1028-36.

(37) On a more realist note, procedural changes relating to double jeopardy apply to all criminal prosecutions, including those white collar corruption and fraud prosecutions that occasionally have as their targets elected officials and their family and friends. We might reasonably expect that this would make elected officials more sensitive to the problems of oppression by repeated governmental efforts to obtain a conviction. See Klein, supra note 1, at 1049-50; Dripps, Criminal Procedure, Footnote Four, and The Theory of Public Choice: or, Why Don't Legislatures Give a Damn About the Rights of the Accused? 44 SYRACUSE L. REV. 1079 (1993).

(38) See Klein, supra note 1 at 104247. Klein makes a similar argument with respect to the popularity of new compound definitions of crimes, essentially broadened forms of conspiracy, which create new opportunities for harassment through repeated prosecutions for the same criminal conduct, id. at 1039-42. Note that with respect to compound offenses, the concern seems to be not so much that legislators intend to give prosecutors the power to repeatedly prosecute for similar conduct, but that they wish these offenses to increase prosecutorial powers generally, and under a legislative intent double jeopardy regime they will permit repeated prosecutions. Prosecutors have many reasons to avail themselves of these powers, and few in the political world will in fact object.

(39) See Weems v. United States, 217 U.S. 349, 368-75 (1910). The primary academic source is Granucci, "Nor Cruel and Unusual Punishments Inflicted": The Original Meaning, 57 CAL. L. REV. 839 (1969). In general, the framers appear to have seen the clause as prohibiting certain especially torturous punishments previously employed in England, id. This raises the problem of whether the clause is essentially a dead letter, prohibiting punishments that have never been legislatively authorized in the United States, or whether it enacts a principle of punishment limitation capable of expansion to a variety of modern practices. In a number of contexts, the Supreme Court has adopted the latter interpretation. United States v. Weems, 217 U.S. 349 (1910) (eighth amendment prohibition of sentence of fifteen years of particular form of hard labor for falsifying government document); Gregg v. Georgia, 428 U.S. 153 (1979) (eighth amendment imposes procedural requirements on imposition of death penalty); Estelle v. Gamble, 429 U.S. 97 (1976) (application of eighth amendment to prison conditions); Solem v. Helm, 463 U.S. 277 (1983) (application to length of prison sentence). Nevertheless, justices have often displayed sharp philosophical differences on the clause's import, leading to unpredictable decision making. Compare Solem v. Helm id., with Harmelin v. Michigan, 501 U.S. 957 (1991).

(40) See note 39 supra.

(41) Here it is worth noting a curious dynamic in the tension between doctrinalism and realism as it is played out in judicial decision making. While under my suggested scheme, broad justice language in a rule argues for a more realist policy-oriented judicial interpretation, courts often have an opposite reaction to such wording. Judges, concerned that they will not be able to find reliable limits on their policy analysis, and knowing their own vulnerability to the charge of judicial activism, may be even more inclined to a highly restricted, doctrinalist interpretation of law when confronted with broad justice language in a rule.

(42) See M. TONRY, SENTENCING MATTERS 25 (1996). On the related dynamic of criminal legislation by popular referendum, see Zimring, Populism, Democratic Government, and the Decline of Expert Authority: Some Reflections on `Three Strikes' in California, 28 PAC. L.J. 243(1996).

(43) Most notably I have brushed by constitutional theory, which must be considered in depth as it raises related, but by no means identical, concerns to those of doctrinalism versus realism.

Samuel H. Pillsbury, author of Judging Evil: rethinking the Law of Murder and Manslaughter, is Professional of Law at Loyola Law School, Los Angeles.
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