Double Jeopardy?

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(This is one of those instances where I write to organize my thoughts on a subject, rather than to demonstrate any familiarity with the topic.)

The Fifth Amendment to the Constitution reads as follows (emphasis added):

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 [sic] 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.

One might then wonder why the NAACP, et al. are pushing for Federal charges to be brought against George Zimmerman in the wake of his acquittal in state court.

First, a note about the “life or limb” phrase:

Despite the wording of the clause, the Court applies it to any indictment or information charging a person with any statutory or common-law felony or misdemeanor sanctioned by death, imprisonment, or fine.

Which is appropriate, given that lopping off an extremity is not generally practiced as a judicial remedy in modern times.

But the more important question is: If the Federal government prosecutes for the same offense for which Zimmerman was acquitted by the state of Florida, doesn’t that amount to Double Jeopardy?

Dual Sovereignty Doctrine

The Heritage Foundation notes:

First, the [Supreme] Court [of the United States] reads the Double Jeopardy Clause as a protection against conduct by the same “sovereign.” Accordingly, as the federal government is, as is each state, a separate “sovereign,” the Double Jeopardy Clause does not prohibit a federal prosecution after a state prosecution. Despite the doctrine, the federal government as a matter of policy will not prosecute a matter first prosecuted at the state level, absent unusual circumstances. Nor does the clause prohibit a state prosecution following a federal prosecution. Nor does it prohibit successive state prosecutions [meaning, prosecutions by separate states]. But it does prohibit successive prosecutions by the state and a local government or two local governments, because each derives its sovereignty from a common source, the state constitution. Indian entities are treated as separate sovereigns.

Although rare, one example of defendants being acquitted at the state level, only to face Federal charges later, was Koon v. United States, 518 U.S. 81 (1996), in which LAPD officers were charged under 18 USC § 242: Deprivation of rights under color of law.

But where does this idea of Dual Sovereignty come from, since it obviously can’t be found in the text of the Fifth Amendment?

Here’s an interesting post at The Volokh Conspiracy:

The Double Jeopardy clause of the Fifth Amendment provides that no person can “be subject for the same offense to be twice put in jeopardy of life or limb.” Despite its text, the Double Jeopardy clause has been interpreted by the Supreme Court to allow both the federal government and a state government to bring charges for the same conduct because they are separate sovereigns.

In a very interesting cert petition that was recently filed, Roach v. Missouri, the petitioner asks the Supreme Court to overturn this doctrine on originalist grounds. Here’s the question presented:

Under the original meaning of the Double Jeopardy Clause, a prosecution by one sovereign barred subsequent prosecutions by all sovereigns. But the Court strayed from this original meaning when it adopted the doctrine of “dual sovereignty,” which permits prosecutions by multiple sovereigns. Criminal defendants thus now have less Double Jeopardy protection than they had at the Founding. This petition presents unequivocal historical evidence that dual sovereignty is inconsistent with the original meaning of the Double Jeopardy Clause.

The question presented is whether the Double Jeopardy Clause bars a state prosecution for a criminal offense when the defendant has previously been convicted of the same offense in federal court.

The petition is certainly unusual: It asks the Court to overturn its longstanding precedent based on a historical argument without identifying a split or lower court confusion. But the historical argument is a very interesting one. At least on a first read, it seemed pretty persuasive to me. For some similar thoughts from co-blogger Paul Cassell, see Paul G. Cassell, The Rodney King Trials and the Double Jeopardy Clause: Some Observations on Original Meaning and the ACLU’s Schizophrenic Views of the Dual Sovereign Doctrine, 41 UCLA L.Rev. 693, 709-15 (1994).

Hmm, maybe it’s the Supreme Court “evolving” away from original intent again?

From Encyclopedia.com (2002):

Although “dual sovereignty” is really a variation of the same offense issue, it is usually treated separately. Suppose the federal Congress and a state legislature have identical criminal statutes. Can a defendant be charged and convicted (or acquitted) of an offense in federal court and then tried in state court? What if the defendant is first tried in state court? This issue is called “dual sovereignty” because the original thirteen states were separate political entities until they joined the federal union and gave up some of their sovereignty to the federal government. The states did not give up their right to define and punish crimes.

This issue, and its dual sovereignty implication, was recognized by the Supreme Court in the 1820 case of Houston v. Moore, but it has only been in the last few decades that the issue affected very many defendants. Congress initially did not create many criminal offenses and there was little overlap between federal and state criminal law. But there has been an explosion of federal criminal law in the last twenty years, and many defendants now potentially face successive state and federal prosecutions.

When the issue was first noted in Houston, the various opinions of the Supreme Court laid out the two basic approaches to the problem. Justice Joseph Story argued that it would violate double jeopardy for both sovereigns to prosecute the same offense, which he took to mean the same criminal conduct. Justice William Johnson saw the matter differently—it was not a question of prosecuting the same conduct but the same offense. Because each U.S. citizen owes allegiance to two sovereigns, the same conduct that violates state and federal criminal law was two offenses, in Johnson’s view, not one.

Johnson’s view ultimately prevailed. It is not double jeopardy for a defendant to be acquitted of federal bank robbery charges and then tried and convicted in state court for the same bank robbery. Nor is it double jeopardy for a defendant to be convicted in state court and then convicted in federal court. These cases drew a stinging dissent in Bartkus v. Illinois from Justice Hugo Black, who wrote: “If double punishment is what is feared, it hurts just as much for two ‘Sovereigns’ to inflict it than for one. If danger to the innocent is emphasized, that danger is surely no less” when the successive trials are brought by different sovereigns.

The dual sovereignty doctrine is controversial, but there are not very many instances of successive state and federal prosecutions. Both the federal and state governments have imposed limits on their ability to re-prosecute the same conduct. The federal limit is found in a Department of Justice policy that generally forbids prosecuting conduct that has already been prosecuted. There are exceptions for cases in which justice was not done in the prior prosecution—for example, the judge or prosecutor was corrupt or the jury entered an acquittal that was clearly against the evidence. More than half the states have enacted statutes that generally forbid a state prosecution to be based on the same conduct as an earlier federal prosecution. Although there is much to commend in Justice Black’s rejection of the dual sovereignty doctrine, the federal and state systems have adjusted to minimize the potential harm.

No wonder Holder is making noises about the difficulty of bringing Federal charges against Zimmerman. But that doesn’t exactly make me feel all warm and fuzzy, knowing the contempt for the rule of law evinced by this Administration.

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