Barrett v. United States · ¶76

Someday, we will need to resolve the tension in our case law. And when we do, I see two likely solutions. One would be to say out loud what some of our cases imply: that the constitutional phrase “the same offence,” Amdt. 5, means different things in different contexts. In the successiveprosecution context, two charges amount to the same offense if they fail the Blockburger test. But in the concurrent-prosecution context, two charges amount to the same offense only if they fail the Blockburger test and Congress has not clearly intended punishment under both. That solution, though, would be a curious one indeed. Not only would it allow Congress to permit in the concurrent-prosecution context what we have long held the Constitution forbids in the successive-prosecution context. Really, it is a little “embarrassing to assert that the single term ‘same offence’ ” in the Double Jeopardy…

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