Dual Sovereignty Doctrine

Amdt5. Dual Sovereignty Doctrine

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Throughout most of its history, this clause was binding only against the Federal Government. In Palko v. Connecticut,1 the Court rejected an argument that the Fourteenth Amendment incorporated all the provisions of the first eight Amendments as limitations on the states and enunciated the due process theory under which most of those Amendments do now apply to the states. Some guarantees in the Bill of Rights, Justice Cardozo wrote, were so fundamental that they are “of the very essence of the scheme of ordered liberty” and “neither liberty nor justice would exist if they were sacrificed.” 2 But the Double Jeopardy Clause, like many other procedural rights of defendants, was not so fundamental; it could be absent and fair trials could still be had. Of course, a defendant’s due process rights, absent double jeopardy consideration per se, might be violated if the state “creat[ed] a hardship so acute and shocking as to be unendurable,” but that was not the case in Palko.3 In Benton v. Maryland, however, the Court concluded “that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage. . . . Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ the same constitutional standards apply against both the State and Federal Governments.” 4 Therefore, the double jeopardy limitation now applies to both federal and state governments and state rules on double jeopardy, with regard to such matters as when jeopardy attaches, must be considered in the light of federal standards.5

In a federal system, different units of government6 may have different interests to serve in the definition of crimes and the enforcement of their laws, and where the different units have overlapping jurisdictions a person may engage in conduct that will violate the laws of more than one unit.7 Although the Court had long accepted in dictum the principle that prosecution by two governments of the same defendant for the same conduct would not constitute double jeopardy, it was not until United States v. Lanza8 that the conviction in federal court of a person previously convicted in a state court for performing the same acts was sustained. “We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory. . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.” 9 In Gamble v. United States, the Court explained that “where there are two sovereigns, there are two laws, and two ‘offences.’” 10

The Supreme Court has been asked to overrule this “dual sovereignty” doctrine in a number of cases, and has repeatedly declined to do so.11 Although some early cases establishing this doctrine cited the now-overruled principle that the Double Jeopardy Clause did not apply to the states,12 the Court has since clarified that the dual sovereignty doctrine survived ratification of the Fourteenth Amendment.13 The Court said in Gamble, issued in 2019, that the dual sovereignty doctrine was justified by historical understandings of the Double Jeopardy Clause.14 Observing that the Clause prohibits dual prosecution for the same “offence,” the Court explained that at the time the Constitution was written, an “offence” was defined as a violation of a particular law.15 In the Court’s view, two sovereigns will have two different laws, meaning that violations of those laws will be two different offenses.16 Further, the Court emphasized that by 2019, the doctrine had been applied in “a chain of precedent linking dozens of cases over 170 years.” 17 In prior cases, the Court also recognized the practical considerations justifying the dual sovereignty doctrine, noting that without this principle, states could “hinder[]” federal law enforcement by imposing more lenient sentences on defendants under state law, thereby barring federal prosecution even if the “defendants’ acts impinge more seriously on a federal interest than on a state interest.” 18 And in Gamble, the Court noted the international consequences of the doctrine, stating that if “only one sovereign may prosecute for a single act, no American court—state or federal—could prosecute conduct already tried in a foreign court.” 19 If the Double Jeopardy Clause did bar such U.S. prosecutions, the Court said that this could raise prudential concerns about the U.S. government’s ability to vindicate its interests in enforcing its own criminal laws, particularly if the foreign government’s legal system is seen as somehow inadequate.20

The dual sovereignty doctrine has also been applied to permit successive prosecutions by two states for the same conduct,21 and to permit a federal prosecution after a conviction in an Indian tribal court for an offense stemming from the same conduct.22 Of course, when in fact two different units of the government are subject to the same sovereign, the Double Jeopardy Clause does bar separate prosecutions by them for the same offense.23

302 U.S. 319 (1937). back
302 U.S. at 325, 326. back
302 U.S. at 328. back
395 U.S. 784, 795, 795 (1969) (citation omitted). back
Crist v. Bretz, 437 U.S. 28, 37–38 (1978). But see id. at 40 (Justices Powell and Rehnquist and Chief Justice Burger dissenting) (standard governing states should be more relaxed). back
Id. See also cases cited in Bartkus v. Illinois, 359 U.S. 121, 132 n.19 (1959), and Abbate v. United States, 359 U.S. 187, 192–93 (1959). back
The problem was recognized as early as Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820), and the rationale of the doctrine was confirmed within thirty years. Fox v. Ohio, 46 U.S. (5 How.) 410 (1847); United States v. Marigold, 50 U.S. (9 How.) 560 (1850); Moore v. Illinois, 55 U.S. (14 How.) 13 (1853). back
260 U.S. 377 (1922). back
260 U.S. at 382. See also Hebert v. Louisiana, 272 U.S. 312 (1924); Screws v. United States, 325 U.S. 91, 108 (1945); Jerome v. United States, 318 U.S. 101 (1943). back
No. 17-646, Slip Op. at 3, 4 (June 17, 2019) (quoting U.S. Const. amend. V). back
Gamble, No. 17-646, Slip Op. at 3 (June 17, 2019); Abbate v. United States, 359 U.S. 187, 195 (1959); Bartkus v. Illinois, 359 U.S. 121, 138 (1959). The Court has applied the dual sovereignty doctrine without expressly reconsidering and reaffirming its validity in a number of additional cases, as detailed in Gamble, No. 17-646, Slip Op. at 6, and Bartkus, 359 U.S. at 129–33. back
See Bartkus, 359 U.S. at 129; Lanza, 260 U.S. at 382. The Court subsequently held in Benton v. Maryland, 395 U.S. 784, 794 (1969), that “the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and . . . should apply to the States through the Fourteenth Amendment.” back
Gamble, No. 17-646, Slip Op. at 17. back
Id. at 4. back
Id. at 4. back
Id. back
Id. at 8. back
Abbate v. United States, 359 U.S. 187, 195 (1959); accord, e.g., United States v. Wheeler, 435 U.S. 313, 318 (1978). back
Gamble, No. 17-646, Slip Op. at 6. back
Id. back
Heath v. Alabama, 474 U.S. 82 (1985) (defendant who crossed state line in the course of a kidnap and murder was prosecuted for murder in both states). back
E.g., United States v. Lara, 541 U.S. 193, 199 (2004); United States v. Wheeler, 435 U.S. 313, 329–30 (1978). back
See, e.g., Waller v. Florida, 397 U.S. 387 (1970) (trial by municipal court precluded trial for same offense by state court); Grafton v. United States, 206 U.S. 333 (1907) (trial by military court-martial precluded subsequent trial in territorial court). More recently, in Puerto Rico v. Sanchez Valle, the Court held that the separate prosecution of an individual by the United States and Puerto Rico for the same underlying conduct ran afoul of the Double Jeopardy Clause because the two governments are not “separate sovereigns.” See No. 15-6092, Slip Op. (June 23, 2016). Even though Puerto Rico came to exercise self-rule through a popularly ratified constitution in the mid-twentieth century, the Court concluded that the “original source” for its authority to prosecute crimes ultimately derived from Congress and, specifically, a federal statute which authorized the people of Puerto Rico to draft their own constitution, meaning that the challenged prosecution amounted to a reprosecution by the same sovereign. See id. at 1874–75 (2016). back

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