In the case of Ball v. United States in 1890, three men were convicted for murder on a U.S. Army base and sentenced to death by hanging. However, their execution was botched; while two died instantly, one survived due to a faulty scaffold mechanism. The man who survived, William Kemmler (alias "William Kebler"), argued that his re-execution would constitute double jeopardy under the Fifth Amendment of the Constitution which states that no person shall be subject for the same offense twice. The Supreme Court ruled against Kemmler's argument stating that he had not been put in jeopardy twice because his sentence had not been carried out fully and properly during the first attempt at execution. Therefore, it did not violate his constitutional rights to retry him with proper procedure. This ruling established an important precedent regarding capital punishment and double jeopardy clause interpretation within American legal system.

In the dissenting opinion for Ball v. United States, Justice Lamar argued that the defendants should not have been tried twice for the same crime, as it violated their Fifth Amendment rights against double jeopardy. He contended that since they were acquitted in a federal court of robbing a mail carrier and then convicted in an Arkansas state court for murder during said robbery, this constituted two punishments for essentially one act. The majority's decision to uphold both convictions was seen by him as problematic because it allowed states and federal government to prosecute individuals separately for the same offense under different laws - something he believed contradicted constitutional protections against double jeopardy.