We hear all the time that because of the 5th amendment, a person cannot be tried twice for the same crime. However, here is the text of the 5th amendment (bolding mine).
From reading this, it would appear that the prohibition against double jeopardy only applies in cases where a person could be sentenced to lose “life or limb.”
When and how did it come to be interpreted to apply to all crimes?
The issue is that ‘life or limb’ refers to the possibility of being sentenced by means of a second go-around. The ‘life or limb’ does not refer to the crime, it refers to the punishment.
Being incarcerated, or given any other penalty, is considered being put in jeopardy of life or limb. More specifically, incarceration or other basic penalties is being placed in jeopardy of limb.
I understand that it refers to the punishment. But my reading of the text leads me to interpret the meaning as, “If a person is being tried for a crime where the sentence may be the death penaltly or amputation of a limb, he cannot be tried twice for the same crime.”
How does this apply to crimes where the punishment is a term in the slammer?
From here:
That “life or limb” refers to the most serious punishments should be obvious…but the commonly-understood meaning of those words gives no hint of their modern-day, judicially-imposed meaning. Surely there are few, if any, provisions of the Constitution from which the Supreme Court, in its interpretations, has deviated more drastically from the literal terms used at conception. In effect, the qualifying words “of life or limb” have been written out of the Fifth Amendment, and the Clause should now more aptly state, “nor shall any person be subject for the same offense to be twice put in jeopardy of [any punishment].”
More details and analysis at the above site.
Ampuation is an enormous leap from being placed in jeopardy. Understanding that amputation would likely be considered cruel and unusual punishment, and any argument for such would fall apart.
Being incarcerated, or forced to do manual labor (if that helps you imagine it better), would be an example of placing one’s limb in jeopardy. You are getting very very literal in your interpretation and leap, and you need to understand the spirit and style of the writers (no wonder we have historians who study such things).
Also from that link:
"…The stretch can only be made by viewing the words “life or limb” as a term of art, or as one commentator more eloquently stated, as “a single unitary phrase… whose whole is greater than its parts”–words that are to be read as “poetic notes:” (6) As poetry, in other words, “life or limb” can become a metaphor for all punishment. But this convenient rationalization, as will be explained, disregards the likelihood that the Framers understood double jeopardy not as a broad, general, and evolving concept, but rather as a finite and static rule limited by its own terms.
The Supreme Court, motivated by policy instead of history, adopted the poetic notes approach in the 1873 case of Ex parte Lange(7) by applying the Double Jeopardy Clause to misdemeanors and misdemeanor punishment, and thus clearing the way for the evolution of double jeopardy law in its current form. Since that time, the Lange opinion has enjoyed nearly unquestioned acceptance and has been zealously defended."
Thanks for the insights and links. I know that today amputation is not used as a penalty, but I think it was not unheard of in the 18th century. I was just wondering where/when the current interpretation came about.
“Double jeopardy”, like most provisions in the Bill of Rights, had antecedents in English common law, and in American colonial and state law. Whether the prohibition applied, in England, to all criminal cases or only to capital cases seems to have been a bit unclear:
In other words, Coke, who wrote in the Seventeenth Century, took a more expansive view of the protection than Blackstone, who wrote in the Eighteenth. This is perhaps the opposite of what one would expect.
In America, the prohibition passed into state common law, and per Findlaw, was first enshrined in a state Constitution by New Hampshire in 1784:
This is more expansive than the federal rule, in applying to all crimes, but less expansive in requiring an earlier acquittal in order to activate.
In the first Congress, again per Findlaw,
That explanation leaves one feeling a little incomplete. Certainly it would have been easy to correct the “appeal loophole” without limiting the clause to “jeopardy of life or limb”. Given that there was a history of uncertainty as to whether the common-law prohibition applied to all crimes or only to more serious crimes, I’d have to assume that the restriction was deliberate. I can accept “life or limb” as poetic licenses for any felony, given that capital and/or corporal sentences were possible for more crimes in 1789 than today, but not as poetic license for any felony or misdemeanor.
I’d have to agree with Philster’s source that the Supreme Court’s extension was a “convenient rationalization” motivated by “policy instead of history”.