The Doctrinal and Normative Basis of the Double-Jeopardy Requirement
Anglo-American constitutional law prohibits a person from being twice put in jeopardy for ‘the same offense.’ In the United States this seemingly simple requirement has generated a doctrinal thicket about what is and what is not ‘the same offense,’ leading many legal theorists to give up on there being a coherent double jeopardy doctrine. This chapter seeks to bring order to this doctrinal thicket. It does so by: separating the several distinct prohibitions making up the double jeopardy ban; examining the policies behind such prohibitions; relating the extant legal tests for ‘same offense’ to each other and to such policies; separating the question of ‘same offense’ into two distinct questions, one about when two putatively distinct types of actions should be considered the same, and the other about when particular act-token(s) are one or several. These two questions are allocated, respectively, to the ‘overlapping statutes’ problem and to the ‘unit of offense’ problem.
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