Introduction

Dual Sovereignty and Double Jeopardy

Introduction

The Double Jeopardy Clause of the Fifth Amendment says that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."¹ Most readers take that sentence to forbid a second trial for any criminal act that has already been tried once. As a description of what a single government may do to a defendant, the assumption is sound. It breaks down when the second prosecutor is a different government. One act can violate both state and federal criminal law, or the criminal laws of two states, and this chapter asks whether a prosecution by the second government puts the defendant in jeopardy twice for the same offence. For prosecutions by separate sovereigns, the answer is no. The federal government may prosecute after a state has prosecuted the identical offense, and a state may prosecute after another state or the federal government has done so.²

That answer turns on the word "offence." The clause attaches to the offence, and the Court treats an offence as a violation of one particular sovereign's law. Under the dual sovereignty doctrine, two crimes prosecuted by different sovereigns are never the same offence, even when the two statutes have identical elements.³ In United States v. Lanza, Washington prosecuted a liquor violation and the federal government then prosecuted the same conduct, and the Court reasoned that "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."⁴ The mechanism behind that reading is that each sovereign has its own interest in punishing violations of its own law and its own right to do so. The clause gives a government one chance to convict, and a government that did not go first has not yet had its chance. Barring its case because another government prosecuted earlier would leave an injury to its law unanswered.

The same-sovereign requirement is the fourth of four prerequisites to a double jeopardy bar. The defendant must face a second instance of criminal jeopardy, jeopardy must have attached in the first prosecution, the two prosecutions must be for the same offence, and they must come from the same sovereign.⁵ This chapter concerns only that last requirement. It begins with the reason the Court defines an offence by the sovereign whose law was broken, then follows the rule from the federal-state cases where it began to the test the Court uses to decide whether two governments are separate sovereigns. The case the chapter builds toward is Heath v. Alabama, which extended the doctrine to two states and held that they may successively prosecute the same conduct under their own criminal laws.⁶ From there this chapter turns to entities that are harder to classify, and it closes with limits on a second prosecution that come from statutes and prosecutorial policy rather than from the Constitution. The first step is the premise on which everything else rests: why a crime is an offence against a particular sovereign.