Hastings Constitutional Law Quarterly


Won Kidane


The Double Jeopardy Clause of the United States Constitution provides: "No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb ... " If a refugee who has committed a deportable offense and served his sentence is subsequently deported from a place where he calls home to a place where he would face persecution, he could literally be said to have been twice put in jeopardy of life and limb. That seems to be a prima facie violation of the Double Jeopardy Clause of the Fifth Amendment. This constitutional guarantee is, however, not currently available to refugees for a complex set of reasons. The most fundamental reason is that deportation is deemed to be a consequence of a civil proceeding that does not necessitate constitutional guarantees attending proceedings of a criminal nature.

Although traditionally the Double Jeopardy Clause has been viewed as a procedural safeguard and a substantive limitation on criminal punishments, the constitutionality of second civil punitive sanctions has always been a subject of serious challenges. In recent decades, the Supreme Court has expressly addressed these challenges in a series of cases and consistently held that the Double Jeopardy Clause does impose substantive limitations on civil sanctions that are so punitive in nature to be considered second punishments.

Deportation is generally considered to be a civil sanction. Notwithstanding the jurisprudential complexities involved, this article argues that the deportation of an already recognized refugee to a place where he might face persecution, pursuant to the statutory exclusion of convicted criminals, is a second punishment, and as such violates the Double Jeopardy Clause.