Concurrent Jurisdiction

Concurrent Jurisdiction

Two sovereigns can try the same act only when each has a legitimate claim to reach it, so the first step is to see how those claims come to overlap. Jurisdiction is concurrent when more than one sovereign has authority to prosecute the same conduct. The Model Penal Code's territorial provision shows how a state's reach is measured. A state may convict a person of an offense committed by the person's own conduct, or by the conduct of another for which the person is legally accountable, if either the conduct that is an element of the offense or the result that is an element occurs within the state.¹ The provision also reaches out-of-state conduct that amounts to an attempt to commit an offense inside the state, and a conspiracy to do so when an overt act occurs inside the state. It further covers offenses defined by a statute that expressly prohibits out-of-state conduct bearing a reasonable relation to a legitimate state interest.²

The word "either" in that test is what produces overlap. A state has a stake in conduct performed within its borders, because it must keep order there, and a comparable stake in harm that lands inside them, because its residents suffer it. Requiring both a local act and a local result would let a person on one side of a border injure someone on the other and answer to no one. Accepting either connection lets every state with a real stake prosecute, and the price is that two states can each satisfy the test for a single act.

Boundary waters produce the same overlap in physical form, because a state line often runs through the very place where a crime occurs. In State v. George a defendant was charged in Minnesota with larceny from the person on a bridge spanning the Mississippi between Minnesota and Wisconsin. The theft occurred on a part of the bridge over an island on the Wisconsin side of the main channel, and the Minnesota court was held to have jurisdiction.³ Because the spot lay on the Wisconsin side, Wisconsin's own claim to the same theft is evident, and a trial in one state would leave the other facing exactly the question this chapter addresses. Rivers work the same way, since courts in Indiana, Kentucky, Mississippi, Missouri, and Wisconsin, among others, have punished crimes committed on the part of a river lying within another state's boundaries.⁴ Benham v. State states the point for the Ohio River: Indiana has concurrent jurisdiction over all parts of the river that fall within its territorial jurisdiction.⁵

Overlap between a state and the national government rests on a different premise, namely that the two are separate sovereigns, each with its own criminal law and its own interests to protect. In New York v. United States the Court framed the relationship between the Federal Government and the States as a constitutional allocation of authority, with Congress holding substantial but limited powers under provisions such as the Commerce and Spending Clauses.⁶ Criminal law follows that division. Under the dual sovereignty rule, "an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each."⁷ Abbate v. United States reaffirmed the principle from United States v. Lanza, reasoning that if a state prosecution barred a federal prosecution for the same acts, federal law enforcement would necessarily be hindered.⁸

The reason runs through interests. A sovereign writes its criminal code to protect what it cares about, so its judgment vindicates only its own interest. Corrupt theft of government property, for example, can be charged under a federal statute or under a state theft statute, and a state acquittal on the state charge says nothing about whether the federal interest has been protected.⁹ If the state's judgment ended the matter, a single state's lenient or mistaken result would decide the fate of the national interest as well.

The system tolerates this overlap, but the Department of Justice limits its own use of it. Under the Petite policy, federal prosecutors may not initiate or continue a prosecution after a prior state or federal prosecution on substantially the same acts unless three conditions are met. The matter must involve a substantial federal interest, the prior prosecution must have left that interest demonstrably unvindicated, and the government must believe the conduct is a federal offense that admissible evidence will probably prove. The appropriate Assistant Attorney General must also approve the prosecution.¹⁰ Because the policy is an internal departmental guideline, a defendant has little ability to enforce it in court, and the usual consequence of a violation is internal discipline.¹¹ It therefore restrains charging decisions without creating a legal bar of the kind this chapter studies.

Against that tolerance stands the defendant's burden of answering repeatedly for a single act, an objection with old roots. A footnote in Bartkus v. Illinois collects state decisions favoring the view that a judgment in one jurisdiction should block a later prosecution in another, and it cites a federal decision observing that "to punish a man twice for the same offense shocks the sense of justice."¹² The same footnote describes language supporting finality, such as the statement in Nielsen v. Oregon that a judgment by the first state to acquire jurisdiction of the person is final in both states, as dicta running against the Court's holding.¹³ The bar was thus long thought desirable, yet double jeopardy does not stop two sovereigns from proceeding against the same activity.¹⁴

Legislatures therefore decide when the first result should end the matter. Georgia, for example, bars a prosecution if the accused was formerly prosecuted in a federal district court for a crime within the concurrent jurisdiction of the state, the former prosecution ended in conviction or acquittal, and the later prosecution is for the same conduct, subject to limits such as the case where each prosecution requires proof of a fact the other does not.¹⁵ Model Penal Code Section 1.10 is the model form of that kind of statute, and the next section takes up its terms. On an exam, a prior prosecution by another sovereign is not an automatic bar, so the answer depends on the controlling statute.