If at First You Don't Succeed . . .

The Fifth Amendment provides that no person can be put "twice put in jeopardy of life or limb." That enshrines the ideal that when the government comes to get you, they only get one chance. They can't repeatedly try you for the same offense until they get the verdict they want (i.e., "guilty"). So if you're acquitted, it's over. But if you go to trial and the jury hangs, the government (generally) can take another shot at you.

That has not been the case in Federal death penalty prosecutions. In such cases, if a jury cannot unanimously decide a defendant is to be put to death, he or she receives life in prison. Doesn't matter if it's 1 holdout or 11. This has apparently rankled some Congresspeople, as the House has slipped an amendment onto its reauthorization of the Patriot ACT that would allow sentencing retrials in the case of a hung jury. The bill is the brainchild of Republican John Carter of Texas (State motto: "We execute more people before 9:00 a.m. than the rest of the world does all day!").

Even if the change would pass Constitutional muster, it doesn't sound like a very principled thing to do. But don't take it from me:

Sentencing deadlocks in federal capital trials are not unusual. In a federal terrorism trial in New York in 2001, for instance, the government sought the death penalty against two operatives of Al Qaeda for their roles in the deadly bombings of two American embassies in East Africa in 1998. The jury deadlocked 9 to 3 in favor of death in both cases, interviews conducted by The New York Times later revealed.

Mary Jo White, who was the United States attorney in Manhattan at the time, said the experience was frustrating. 'I respectfully disagreed with that jury,' she said.

But Ms. White said she opposed the provision in the House bill.

'I don't think the government should have two bites at that apple,' said Ms. White, who is now in private practice at Debevoise & Plimpton. 'There's something untoward about giving the impression that you're jury shopping for the death penalty.'

The bottom line is that the US is increasingly seeking the death penalty, even in states that don't have the ultimate punishment as part of their criminal law (like West Virginia), but aren't getting the verdicts they want. Maybe the proper response to that isn't to make it easier to line up more executions.