Barrett v. United States · ¶79

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 successive- prosecution 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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