Dual Sovereignty Doctrine

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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, the Double Jeopardy Clause was only binding on the Federal Government. In Palko v. Connecticut,1 the Supreme Court rejected an argument that the Fourteenth Amendment incorporated all provisions of the first eight Amendments as limitations on the states. The Court, however, enunciated a due process theory under which some Bill of Rights guarantees are considered 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 The Double Jeopardy Clause, like many other procedural rights of defendants, was not considered “fundamental” in Palko; it could be absent and fair trials could still be had. Still, a defendant’s due process rights, absent double jeopardy, might be violated in the Court’s view if the state “creat[ed] a hardship so acute and shocking as to be unendurable,” but that was not the situation in Palko.3

In Benton v. Maryland, however, the Supreme Court concluded “that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage.” 4 And, the Court noted, “[o]nce 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.” Accordingly, after Benton, the double jeopardy limitation applies to both federal and state governments. State rules on double jeopardy, with regard to matters such as when jeopardy attaches, must be considered in light of federal standards.5

In a federal system, different governmental bodies6 may have different interests to serve when defining crimes and enforcing their laws. Where different bodies have overlapping jurisdiction, a person may engage in conduct that will violate the laws of more than one body.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. The Lanza Court stated: “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 The Court’s reasoning came to be known as the “dual sovereignty” doctrine.

Although the Supreme Court has been asked to overrule the dual sovereignty doctrine in a number of cases, it has repeatedly declined to do so.10 In 2019, in Gamble v. United States, the Court clarified that “where there are two sovereigns, there are two laws, and two ‘offences.’” 11 The Court asserted that this dual sovereignty doctrine was justified by historical understandings of the Double Jeopardy Clause.12 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.13 In the Court’s view, two sovereigns will have two different laws, meaning that violations of those laws will be two different offenses.14 In Gamble, the Court emphasized that by 2019, the doctrine had been applied in “a chain of precedent linking dozens of cases over 170 years.” 15

In prior cases, the Supreme Court also recognized 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.” 16 In Gamble, the Court also 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.” 17 If the Double Jeopardy Clause barred such U.S. prosecutions, the Court noted 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.18

The dual sovereignty doctrine has also been applied to permit successive prosecutions by two different states for the same conduct,19 and to permit a federal prosecution after a conviction in an Indian tribal court for an offense stemming from the same conduct.20 When two different governmental bodies are subject to the same sovereign, however, the Double Jeopardy Clause bars separate prosecutions by those bodies for the same offense.21

In Puerto Rico v. Sanchez Valle,22 the Supreme Court held that the separate prosecutions of an individual by the United States and Puerto Rico for the same underlying conduct violated the Double Jeopardy Clause because the two governments are not “separate sovereigns.” Even though Puerto Rico has exercised self-rule through a popularly ratified constitution since the mid-twentieth century, the Court concluded that the “original source” of Puerto Rico’s authority to prosecute crimes was Congress—specifically a federal statute authorizing the people of Puerto Rico to draft their own constitution.23 As a result, both the United States and Puerto Rico were exercising prosecutorial authority that stemmed from the same source.

More recently, the Supreme Court has emphasized the source of the authority defining the offense, as opposed to the body carrying out the prosecution, when determining the dual sovereignty doctrine’s applicability. In Denezpi v. United States,24 the Court upheld a federal prosecution that followed a Court of Indian Offenses prosecution. According to the Court, even assuming that prosecution in the Court of Indian Offenses—which was created by the federal Executive Branch and operates pursuant to the Code of Federal Regulations25 —is a form of prosecution by the United States, double jeopardy does not attach so long as the United States is prosecuting an offense defined by a separate sovereign, such as a federally recognized tribe. Because the defendant in Denezpi was convicted of violating a tribal ordinance in the first prosecution, the Double Jeopardy Clause did not prohibit a subsequent prosecution in federal court for a federal statutory offense arising from the same conduct.26

1: 302 U.S. 319 (1937).
2: Id. at 325, 326.
3: Id. at 328.
4: 395 U.S. 784, 795 (1969) (citation omitted).
5: Crist v. Bretz, 437 U.S. 28, 37–38 (1978). But see id. at 40 (Powell, J., dissenting, joined by Burger, C.J. & Rehnquist, J.) (standard governing states should be more relaxed).
6: Id. See also cases cited in Bartkus v. Illinois, 359 U.S. 121, 132 n.19 (1959); Abbate v. United States, 359 U.S. 187, 192–93 (1959).
7: This issue was recognized as early as in Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820), and the doctrine’s rationale 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).
8: 260 U.S. 377 (1922).
9: Id. 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).
10: Gamble v. United States, No. 17-646, slip op. at 3 (U.S. June 17, 2019); Abbate, 359 U.S. at 195; Bartkus, 359 U.S. at 138. 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, slip op. at 6, and Bartkus, 359 U.S. at 129–33.
11: Gamble, slip op. at 3, 4 (quoting U.S. Const. amend. V).
12: Id. at 4.
13: Id. at 4.
14: Abbate, 359 U.S. at 195; accord, e.g., United States v. Wheeler, 435 U.S. 313, 318 (1978).
15: Gamble, slip op. at 8.
16: Abbate, 359 U.S. at 195; accord, e.g., Wheeler, 435 U.S. at 318.
17: Gamble, slip op. at 6.
18: Id.
19: Heath v. Alabama, 474 U.S. 82 (1985) (defendant who crossed state line in the course of a kidnapping and murder was prosecuted for murder in both states).
20: E.g., United States v. Lara, 541 U.S. 193, 199 (2004); Wheeler, 435 U.S. at 329–30.
21: 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).
22: 579 U.S. 59 (2016).
23: Id. at 61.
24: No. 20-7622, slip op. at 5 (U.S. June 13, 2022).
25: See 25 C.F.R. §§ 11.102 et seq.
26: Denezpi, slip op. at 16.