Forty-five years after the debates in the First Congress, Justice Story gave to the Double Jeopardy Clause exactly the interpretation that Sherman and others had wished to avoid. In United States v. Gibert (1834), Story opined that “this court does not possess the power to grant a new trial,” even if the prisoners themselves had asked for one. He did not believe that the consequences of this interpretation—the possibility that an innocent man would not be afforded the opportunity to prove his innocence after an improper conviction—would be as dreadful as anticipated. In those rare cases where a trial might produce a wrongful conviction, the prisoner might appeal to the executive “for a pardon or mitigation of the sentence.”
Although Joseph Story’s constitutional opinions have generally been well respected, and although his literalist approach in this case did indeed have a basis in English precedence, his interpretation of the Double Jeopardy Clause has never been widely accepted in this country. Another Supreme Court justice pointed out that, if this clause were interpreted in such a way that a second trial could be refused to a prisoner who wanted one, then the double jeopardy protection would mean guaranteeing “to him the right of being hung, to protect him from the danger of a second trial.” Today it is well settled that the clause is meant to bar only the prosecutor from seeking a second trial.
Another problem for those who would wish to interpret this clause literally is its reference to persons who are “in jeopardy of life or limb.” To be in jeopardy of one’s life would seem obvious: the provision must apply to all capital offenses. But to be “in jeopardy of limb” must not have ever been intended by the American Founders to be taken literally. It had been centuries since barbaric punishments such as dismemberment had been used. The expression, according to Chief Justice Spencer in People v. Goodwin (1820), must therefore refer to “the nature of the offence,” and designate “offences which, in former ages, were punishable by dismemberment.” In other words, the Double Jeopardy Clause was meant to refer to felonies. Today, the protection applies to both felonies and misdemeanors—to any crime that might be punished through forfeiture of life, liberty, or property.