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Does completion of a Pre-Trial Intervention program legally prevent a retrial on the same facts

Double Jeopardy, and no I don’t mean the daily double on the game show “Jeopardy!”, is a fundamental right enshrined in the U.S. Constitution.  The Fifth Amendment to the United States Constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The United States Supreme Court has held that a civil sanction or even a tax could serve as punishment under the double jeopardy clause of the 5th Amendment barring imposition of the penalty or tax if the person has previously been punished in criminal prosecution. Dept. of Revenue of Montana v. Kurth Ranch, 511 U.S. 767 (1994); United States v. Halper, 490 U.S. 435 (1989).  In Kurth Ranch, a Montana Ranch family was arrested for supplementing their ranch operation by farming marijuana.  As a result of the arrests, conviction, civil forfeiture of property acquired with drug proceeds, and criminal punishment, the Montana State Department of Revenue sought to impose taxes and penalties on the marijuana crop resulting in a tax bill of approximately $180,000.00 for marijuana that had been destroyed by the State.  Defendant appealed the tax judgment as a second criminal punishment in violation of the Constitutional bar against double jeopardy for the same offense.  The U.S. Supreme Court held that because the amount of the collection was so high with no correlation with government expense, the collection attempt could only be interpreted as punitive, thus barring the tax as tantamount to a second punishment on criminal charges.

The Georgia Court of Appeals has recognized that the actions of a school tribunal can be punitive in nature if the sanctions imposed by the tribunal are not rationally related to a remedial measure or are excessive in achieving the remedial purpose.  Clark v. State, 220 Ga. App. 251 (1996).  In Clark, the court found that a ten-day suspension based upon an alleged confession to involvement in an armed robbery and the further recommendation of a tribunal hearing were rationally related to the remedial purpose of preventing a violent criminal from returning to school and did not constitute double jeopardy.  Further, in Simile v. State, 259 Ga. App. 106, 576 S.E.2d 83 (2003), the Georgia Court of Appeals found that a suspension from Georgia Tech University for a DUI is a revocation of a privilege and contained no punitive element.  As the suspension was purely remedial and contained no element of punishment, it did not violate double jeopardy.  See also, Nolen v. State, 218 Ga. App. 819, 463 S.E.2d 504 (1995)(administrative suspension of driving privileges for DUI arrest not punitive and not a double jeopardy bar as additional punishment).

Therefore, it is clear that even a pre-trial intervention program that is punitive and exceeds the government’s cost of enforcement is punitive for purposes of the double jeopardy clause.

-Author: George Creal

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