Simon Heinrich | McElrath v. State

The Fifth Amendment’s Double Jeopardy Clause is simple, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. This clause is so essential to the Fifth Amendment that James Madison listed it first amongst the rights granted in the Amendment he proposed to Congress, writing, “No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence.”

The Supreme Court incorporated the Double Jeopardy Clause against the states in 1969, stating that the clause “represents a fundamental ideal in our constitutional heritage.” Benton v. Maryland, 395 U.S. 784, 794 (1969). The ideal can be traced from Greek times through English common law. By the time it was incorporated against the States, every single state had incorporated some form of the guarantee against double jeopardy. Id. at 795.

Georgia is testing that ideal, at least according to Damian McElrath.