The Dual Sovereignty Doctrine Reconsidered

The Fifth Amendment’s double jeopardy clause bars successive prosecutions of a person for the same offense.  An exception to the double jeopardy prohibition known as the dual sovereignty doctrine allows successive prosecutions for a single act that violates the laws of different sovereigns. In effect, the federal government may prosecute a person after his conviction or acquittal on criminal charges in state court, and vice-versa. Likewise, different states can prosecute a person for the same conduct. A pending petition for cert is asking the Supreme Court to reassess the doctrine’s place in double jeopardy jurisprudence.

The case is Walker v. Texas (not to be confused with Walker v. Texas Division, Sons of Confederate Veterans, a First Amendment speech case from 2015), and one indication the Court may take the case is a concurring opinion from last term’s Puerto Rico v. Sanchez Valle. In that case, the Court held that Puerto Rico is not a sovereign distinct from the federal government for purposes of the dual sovereignty doctrine. Justice Ginsburg, joined by Justice Thomas, added a short concurrence calling for “fresh examination” of the dual sovereignty doctrine. When two justices who are ideological opponents urge their colleagues to reconsider an important question of constitutional law, it’s worth paying attention. (Cf. Breyer’s concurrence re: constitutionality of the death penalty.)

There is also reason to think the Court will pass on Walker. The dual sovereignty doctrine is long-established—in dicta it dates back to the middle of the nineteenth century, in square holding to the 1922 case United States v. Lanza. It isn’t the subject of a circuit split or dissension in lower courts. As recently as 2013, the Court denied cert presenting the same question as Walker (Roach v. Missouri). And the doctrine has been reaffirmed and extended numerous times since Lanza despite persistent criticism from scholars and judges.

In support of “fresh examination,” two other ideological opponents, the Constitutional Accountability Center (progressive) and the Cato Institute (libertarian), have jointly submitted an amicus brief. The brief makes several arguments for reconsideration:

  • The Framers designed our federalist system to enhance liberty, and they viewed the prohibition on double jeopardy as a fundamental protection against government overreach. In the name of federalism, which is intended to enhance liberty, the dual sovereignty doctrine has the perverse effect of constricting liberty.
  • The Framers intended the clause to preserve the common-law protection against successive prosecutions for a single offense, even when brought by different sovereigns. The concerns that lie behind the double jeopardy prohibition—multiple prosecutions for a single offense increase the chance an innocent person will be convicted, and they subject the accused to an unjust amount of humiliation and anxiety—do not depend on whether the same or a different sovereign brings the successive prosecutions.
  • Since the Court adopted this doctrine, the criminal law and its enforcement have changed in significant ways. For one, the U.S. criminal code is more expansive, giving the federal government more opportunities to bring successive prosecutions. Federal-state cooperation in law enforcement has risen in recent years, increasing the likelihood of successive prosecutions.
  • The dual sovereignty doctrine made more sense at the time it entered the canon. At the time, states were not bound by the Constitution’s double jeopardy clause. “[I]f a state could prosecute an individual as many times as it wanted for the same offense . . . it was not a stretch to think that the federal government could prosecute him after he had been prosecuted by the state.” In 1969 the Court accepted that the Fourteenth Amendment had incorporated the double jeopardy prohibition against the states. This development has undermined an underpinning of the dual sovereignty doctrine.

The dual sovereignty doctrine has always made sense to me. If, for example, the federal government and a state proscribe the possession of a firearm by a convicted felon, a felon who possesses a firearm is violating two laws, and both the federal government and the state should have the right to make him answer for each violation. It may be a poor use of resources to prosecute the offender in both forums, but that is a matter of prosecutorial discretion. As Justice Holmes wrote of the doctrine, it “is too plain to need more than statement.”

That’s been my thinking on the issue. Granted, if successive federal-state prosecutions were routine, rather than a rarity, I’d be more concerned. But I’m also susceptible to the originalist arguments made in the brief of the Constitutional Accountability Center and Cato Institute, and the brief rightly points out that the constitutional landscape has undergone a sea change since the last time the Court seriously considered the validity of the dual sovereignty doctrine.

For a succinct but thorough argument that the doctrine merits a second look, see Second Circuit Judge Guido Calabresi’s concurrence in United States v. All Assets of G.P.S. Automotive Corp. (under the heading “Rethinking the Dual Sovereignty Doctrine”).

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