The Double Jeopardy Clause, and Federal Prosecutions After State Prosecutions

The Supreme Court has agreed to reconsider the "separate sovereigns" exception to the Double Jeopardy Clause -- and Justices Ginsburg and Thomas seem to both be on the defendant's side.


The Double Jeopardy Clause generally bars the government from prosecuting a person twice for the same offense, regardless of whether the first prosecution led to an acquittal or a conviction. (If the first prosecution led to a hung jury, reprosecution is allowed.) But the Court has long held that this only bars reprosecution by the same sovereign: The federal government may reprosecute a person after a state prosecution (and vice versa, and in principle the same for multiple states, in the rare cases where multiple states both have jurisdiction over the crime).

In Commonwealth v. Sanchez (2016), Justices Ginsburg, joined by Justice Thomas, argued that this doctrine should be reexamined:

I write only to flag a larger question that bears fresh examination in an appropriate case. The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct. Current "separate sovereigns" doctrine hardly serves that objective. States and Nation are "kindred systems," yet "parts of ONE WHOLE." The Federalist No. 82. Within that whole is it not "an affront to human dignity," Abbate v. United States (1959) (Black, J., dissenting), "inconsistent with the spirit of [our] Bill of Rights," to try or punish a person twice for the same offense? Several jurists and commentators have suggested that the question should be answered with a resounding yes: Ordinarily, a final judgment in a criminal case, just as a final judgment in a civil case, should preclude renewal of the fray anyplace in the Nation. The matter warrants attention in a future case in which a defendant faces successive prosecutions by parts of the whole USA.

Today, the Court agreed to consider the issue, in Gamble v. U.S. For an earlier petition that makes what strikes me as a powerful originalist argument against the "separate sovereigns" doctrine, see this 2013 certiorari petition written by my UCLA colleague (and legal historian) Stuart Banner.

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  1. The “separate sovereigns” loophole is a product of the abandonment of enumerated powers doctrine. Under the system of delegated powers the Constitution established, it was practically impossible for the same act to violate constitutional laws enacted by both state and federal governments, because wherever the states had jurisdiction, the federal government would lack it, and visa versa.

    The 14th amendment’s provision for enabling legislation blew something of a hole in that wall, but it was really the 20th century judicial gift of general police power to the federal government that finished it off.

    1. IANAL and never thought of that angle, but that seems right to me. The bigger problem, for me, is that allowing double prosecution violates the spirit of the concept. It’s the kind of legal quibbling that gives lawyers and especially the “justice” system such a deserved reputation.

      1. Some of the famous cases, such as the officers who beat Rodney King, were re-prosecuted at the federal level precisely because the state prosecution failed, for better or worse.

        That is exactly the reason for disallowing do-overs of not guilty verdicts — to deny the government yet another power to harass politically disfavored people, to the benefit of those already in power.

    2. Under the system of delegated powers the Constitution established, it was practically impossible for the same act to violate constitutional laws enacted by both state and federal governments, because wherever the states had jurisdiction, the federal government would lack it, and visa versa.

      I am not sure that is the case. There are many things that are subject to both sets of laws, even if you take a more conservative view of the enumerated powers.

      Let’s say I use the U.S. mails to commit fraud between two states — I sit in State One and defraud people in State Two. That is legitimately mail fraud under federal law, and well within the Commerce Clause.

      The two states involved could also prosecute for ordinary criminal fraud.

      1. “Let’s say I use the U.S. mails to commit fraud between two states — I sit in State One and defraud people in State Two. That is legitimately mail fraud under federal law, and well within the Commerce Clause.

        The two states involved could also prosecute for ordinary criminal fraud.”

        Yes, but at least in this case the federal charge has at least one element not present in the state charges. in a lot of the more recent state/fed double prosecution cases that isn’t the case.

      2. I don’t think that works, because it’s still an instance of giving the federal government general police power. They don’t have any power to prosecute “mail fraud”. Maybe fraudulent payment of postage…

        That a message sent by post happens to be part of a fraud doesn’t really implicate any of Congress’s enumerated powers. It isn’t necessary to prosecute fraud using the mails in order to run a postal system.

        Nor is prosecuting fraud across state lines a “regulation” of interstate commerce, narrowly defined.

        1. Agreed, but, for example with respect to a robbery of a mail carrier, I think that’s permissible under necessary and proper. What good is an enumerated right to run a post office if you can’t prosecute crimes committed against it?

          1. That makes no sense. You can easily exercise your enumerated right to run a post office yet still be required to use local state services (police, courts, etc) to prosecute crimes committed against it. After all, I don’t need to go to go to federal court just because one of my interstate truck drivers gets mugged.

        2. “Nor is prosecuting fraud across state lines a “regulation” of interstate commerce, narrowly defined.”

          I don’t see that. Outlawing something (and punishing someone for violating that law) is a regulation. Punishing fraud in interstate commerce seems to me well within the Commerce Clause.

          1. That wasn’t the original understanding of interstate commerce. The original understanding was the channels of interstate commerce (for example, the navigable waterways). Not anything that would have any effect on commerce.

            1. Not talking about affecting. Talking about interstate commerce itself.

              Simple example., I run a website, I am based in one state, but offer to sell goods to every other state, and in fact have shipped goods to 25 other states. How is that not interstate commerce?

      3. I’m not sure about the originalism of this position, but personally I’d think using the enumerated power over the mail to give the Federal government authority over all sorts of things that are only tangentially related to the mails is a prime example of enumerated powers creativity.

        Basically, IMHO there shouldn’t be such a thing as a “mail fraud” crime, or a crime of sending [X] through the mail (unless it impacts the safety of the mail system), etc.

    3. I don’t know I agree with that. Even under an originalist regime, it would still be legitimate for the federal government to prosecute, say, crimes committed against the Post Office or on a military base. The states wouldn’t lack jurisdiction based on any doctrine either.

      1. Crimes committed on a military base, OTOH, would be outside the proper jurisdiction of a state.

        That’s my point: The Constitution didn’t set up a system of overlapping sovereigns, it set up a system where each sovereign had it’s own areas, and the overlaps were tiny and incidental.

        Dual sovereigns violations of double jeopardy are so common today because those divisions have broken down, mostly as a result of the federal government expanding into areas reserved for the states.

        1. Is that right? Can states not prosecute assaults or other crimes committed on military bases? I’m genuinely curious.

          1. As is often the case, the devil is in the detail. It depends, on a case-by-case basis, on many facts including the terms with which the state deeded the land, etc. etc. and also what years transfer of control was made. For example, the federal government has exclusive territorial jurisdiction over our local VA hospital, which is on land handed over by the state with no reservations back in the 30s as part of the establishment of a military base. So, for example, the state generally cannot prosecute fraudulent travel claims made at the local VA hospital (they tried – after getting federal grant money, of course). However, our state courts have permitted child abuse prosecutions for conduct that occurred on military base housing land (kind of a shaky holding, IMHO, but the feds didn’t intervene).
            There is no “general answer” — that’s what keeps lawyers busy.

          2. It depends, constitutionally anyway, on whether the property purchase was made with the consent of the state legislature.

            “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”

            Note that “exclusive”?

            Constitutionally, without that consent of the legislature, the federal government is just an ordinary property owner. But the federal courts don’t reason that way, of course.

            1. Interesting. Thanks.

              What is fascinating to me is how quickly our criminal laws have become politicized. For example, in 1963, Texas would have had to prosecute Oswald, as there was no federal criminal statute making it illegal to kill the President. When you consider today that the feds can prosecute any robbery and any fraud where the person used a cell phone, that’s pretty remarkable.

  2. Ordinarily, a final judgment in a criminal case, just as a final judgment in a civil case, should preclude renewal of the fray anyplace in the Nation..

    Surely Ginsburg knows this is not true in the civil system. If one plaintiff sues and loses, that does not mean another plaintiff with a similar claim cannot sue. (E.g., a train crashes. Everyone hurt has a negligence claim against the railroad company.) Each plaintiff gets a bite at the apple.

    The separate sovereigns doctrine is like two different plaintiffs in a civil case.

    1. Yes, several plaintiffs can sue the railroad, but only for liability towards the plaintiff in the case.

      1. True enough. But there can be the same issue tried over and over. Let’s say in Plaintiff 1’s case, the jury finds no negligence. Plaintiff 2 can still sue and claim negligence.

        (In modern practice, the cases often get consolidated or tried as a class action.)

        1. Yes, but Plaintiff 1 can’t take their case to a 2nd state and try again.

  3. James Alex Fields is currently facing both state and federal prosecutions for the same car accident in Charlottesville. It looks like double jeopardy to me.

    1. Aren’t there different elements under the Blockberger test either way?

  4. What about collusive prosecutions for the specific purpose of giving the defendant a slap on the wrist and protecting him, on 2ble jeopardy grounds, from being prosecuted by the other sovereign?

    1. Exactly this! My local buddies prosecute me quickly and find me innocent before the feds have a chance to file charges.

      1. I don’t know if I’ve convinced myself on this one, but it’s a concern.

        1. Something like this happened often during Jim Crow and the Civil Rights struggles. White juries would acquit whites of killing blacks. Something similar happened in the Rodney King case where the officers were acquitted of using excessive force but convicted of a civil rights violation for the same acts.

      2. I would imagine the Supremacy Clause would give the Federal government the power to stay the state prosecution while the federal prosecution is pending. But I do think the concern exists in both directions. It assumes everyone is playing nice.

    2. You mean like the feds transferring Horiuchi’s prosecution to federal court, and getting it dismissed?

      1. And losing in the 9th, but then the state decided not to pursue the case?

    3. This possible scenario has already been addressed. Double jeopardy law in general holds that it offers no protections against a subsequent prosecution if the first was a “sham” or a “fraud.” This principle can apply, for example, where a defendant bribes jurors and is found not guilty — his bribery rendered the trial a fraud (and he was never really “in jeopardy”) so he can be tried again. The same applies to sham prosecutions by different sovereigns (in states where the separate sovereign principle is not recognized).
      The application of this principle would, for example, have permitted federal prosecutions in cases where the state proceedings could be shown to be a sham or farce (the precise language differs, but all forward the same idea). Based on my research, there are two reasons federal prosecutors did not want to rely on such a principle: first, they would have to do the work of showing the state trail was a sham – it is just much easier to pretend like it never happened. Secondly, it is a politically touchy thing to claim that a state has held a sham trial, no matter how obvious the sham was the feds don’t want to provoke controversy and possible pushback.

  5. It seems to me there is another aspect to this argument: the original rulings that created “Dual Sovereignty” were based at least in part on the fact that the 5th Amendment was not incorporated to the States. Since this foundation no longer holds, there is an additional reason to re-evaluate the “Dual Sovereign” doctrine today.

  6. This is one of those things which I agree is a problem, but I don’t know a good solution. Lets say double jeopardy does apply here. Should the state and the federal government have to have a discussion before who can prosecute? Should the federal government always get priority?

    What happens if the other one hasn’t consented?

    1. Whoever gets there first can have him.

      1. That doesn’t seem like a good solution when they have different interests.

  7. Donald Trump and his associates, in or out of government, may be intensively investigated to an extraordinary degree, prosecuted with an absurd attention to the letter of rarely-enforced laws, or to process crimes related to the intricacies of the investigations (or charged with some unsuspected, wildly unrelated long-ago crime that prosecutors uncover through coerced testimony from alleged accomplices) may be convicted or not, may be pardoned or not, but may thereafter be tried again by a state with an A.G. with an overtly political agenda all over her ugly face?

  8. I wonder if they’ll deal with the somewhat more egregious issue of punishing people for acquitted conduct. Probably not.

  9. In the unlikely event that I am elected “Benevolent and Beloved Dictator for Life”:

    1) A felony conviction would preclude prosecution on the same facts by a separate sovereign.

    2) If a trial results in an acquittal, the other sovereign may prosecute. However, the jury would have to be informed of the acquittal (if it was by a jury) and required to give it great weight. The prosecution would be able to introduce evidence as to why the acquittal was contrary to justice. This would seem to prevent double prosecution in almost all cases, but would serve as a “safety valve” in cases similar to the 60’s “civil right’s activist murders.”

    A Solomon-like compromise, or a Homer Simpson-like compromise?

    1. So in (1), I can go to my buddy the local prosecutor and have him charge me on information, plead guilty to a felony in exchange for community service and that would preclude Federal prosecution?

      The only way this works if you are convicted of a felony and the sentence imposed is roughly comparable to the sentence sought by the other sovereign.

      [ That is to say, the “civil right activist murders” would have just secured a conviction and a slap on the wrist for the “same facts” under your regime. ]

  10. I’ve done some research/work on this subject, trying to get cert from a state supreme court, arguing that the separate sovereign principle violates our state’s greater constitutional protections. Cert denied, naturally.

    The feds have been using threatened federal prosecution to impose a “floor” on state sentencing. For example, the State charges you with child porn and the state prosecutor tells the defendant that the state will agree to a sentence of 3 years (and registration, etc.). But you have a competent attorney who contacts the fed public defenders and finds that the U.S. Attorney has a policy (written or not) that anyone who gets less than the draconian federal minimum – or even ‘expected’ – sentence will be subsequently prosecuted by the feds. The feds say if your state sentence is less than, say, 6 years, they will prosecute federally. The defendant, in state court, is then pressured into a agreeing to a sentence 3 years longer than the State thought necessary. In addition (and this should turn heads) the entire 6 year sentence the defendant agrees to with the state will be served in a state prison and on the state’s dime. In other words, the federal “Petite Policy” is basically gutted — the feds will say that any sentence lower than a federal sentence means the “ends of justice have not been served” and the feds should step in and prosecute.

    1. I am no lawyer, but if certainly seems that there are a number of areas in which federal prosecutors (existing as they do in a rare cultural and political environment) can usually bully state courts and their legal hired hands. Certainly on the wide spectrum of matters considered to be civil rights anymore even the threat of bullying would work. However, pesky states strained against their leashes on matters like immigration and marijuana–and their push back has mattered after all.

      The times they are a changing as well. You could see it on the faces of Christopher Wray and Rod Rosenstein recently under questioning. These are high level fed apparatchiks who are used to doing the damndest things with no scrutiny or rebuke, whatsoever. It’s the establishment corporate culture at fault.

  11. If this doctrine is abolished, say goodbye to prosecutions of military servicemen in state courts.

    1. Assisting the prosecution of servicemen and women in our local domestic violence court was a duty I most dreaded in my court security career. The problem became much worse after Sen. Frank Lautenberg of New Jersey tacked an amendment on to the national budget bill that made it illegal for anyone convicted of misdemeanor domestic violence to own a firearm.

      The problem in our very, very blue state is that commonly such convictions are based merely on a touch, or on mutual combat with slight injuries, or on verbal altercations alone. The tragedy arises because such convictions quickly began ending the careers both of people serving in the military and in law enforcement.

      Jobs like that involve carrying weapons. Can’t use the tools of the job, can’t work. I was escorting guys who had 16, 17 years served in the military and only months remaining before they could retire and draw well-earned pensions, but they had a fight with the wife, someone called the cops, and bang, next thing you know the man or woman in uniform is booted from the service AND LOSES ALL OF THEIR PENSION. ALL OF IT.

      Recently it is proposed to change the military retirement system and eliminate that all or nothing at all draconian disbursement policy but I don’t think it has happened yet.

      1. Jobs like that involve carrying weapons. Can’t use the tools of the job, can’t work. I was escorting guys who had 16, 17 years served in the military and only months remaining before they could retire and draw well-earned pensions, but they had a fight with the wife, someone called the cops, and bang, next thing you know the man or woman in uniform is booted from the service AND LOSES ALL OF THEIR PENSION. ALL OF IT.

        I am surprised that this has not incited any murders.

      2. It is not just “blue” states where misdemeanor ‘domestic’ battery is enforced in a seemingly ridiculous manner. While practicing trial law I personally represented a man who ‘flicked’ popcorn at his girlfriend, a wife who poked her husband in the shoulder with her finger, and a female service member who poured a glass of water on her boyfriend in a bar. Generally, many police agencies have a policy that if they get called *someone* is going to jail. Young/new district attorneys assigned to these case often don’t have discretion to do anything other than prosecute (and lord help if it is a VAWA grant funded prosecutor), and in my state (as in many) the statute reads “any” contact – and legally “any” means “ANY.”

        Some states (NJ, for example, IIRC) have a ‘de minimis’ statue that permits a judge to dismiss under such circumstances, but I don’t think most states do.

        The “Lautenberg amendment” is backed by pols across the political spectrum. It has terrible unintended consequences (in part due prosecutions like those I mentioned above) — but on its face it sounds reasonable and “anti-crime” — hence it isn’t going anywhere.

        1. Why not amend the Lautenberg amendment to define domestic violence in such a way as to precludce such prosecutions? After all, if federal law is going to prohibit people from purchasing firearms transported across state lines, or in D.C. or the U.S. territories, on the basis of a domestic violence conviction, doemstic violence can be defined for federal law purposes.

    2. That is not correct. “Abolishment” of the doctrine would not mean that service members could not be prosecuted in state courts. It would mean that they could not be prosecuted in *both* state and federal courts for the same thing. Service members can already be prosecuted in state courts, and routinely are. Being a service member does not exempt you from state jurisdiction – which extends throughout the state (and beyond) unless there is an exception. One exception is ‘exclusive territorial jurisdiction’ of the feds over some land the feds hold within state boundaries. But that exception is based on the “territory” where the crime occurred and not on the status of the individual.

      1. The thing is, if the doctrine is abolished, this would effectively preclude courts-martial for crimes copmmitted by servicemen.

        The prosecution of servicemen in state courts, a longstanding legal tradition in the U.S., has occurred under a legal regime where the dual sovereignty doctrine was in place. Dual sovereignty has roots older than the Civil War. As such, these prosecutions were done under the knowledge that a subsequent court-martial would not be off the table. But elimination of this longstanding doctrine would change this.

        Currently, several states do not have the death penalty. Under current law, a servicemen accused of murder in those states could still be sentenced to death by court-martial if convicted of murder by court-martial. eliminating this doctrine would mean that a state could immunize servicemen from the death penalty.

        1. Abolishment of the doctrine would not necessarily preclude court martials. A complicating factor in double jeopardy analysis is what constitutes “the same offence.” It can be interpreted broadly (to include all charges “related” to the offense) or narrowly (literally “the same” offense). For example, if a service member is convicted of murder in a state court, arguably they could be court-martialed — just not for murder. “Conduct unbecoming” or “violating an order” are purely military crimes that are different from the murder. Another possible fact pattern — a felon is convicted of armed robbery in state court. He had a gun, so could the feds then try him for felon in possession of a firearm, which is a ‘different’ offense, though related in time and conduct? If the Supreme Court abolished the separate sovereigns doctrine it would (presumably) sooner or later have to decide how broadly or narrowly it defined ‘separate offense.’ There is a lot of existing law on such matters, but the courts could “adjust” it with reference to prosecutions by separate sovereigns.

  12. I think ending these double prosecutions would do a lot to rein in an over-reaching criminal justice system. Even better would be ending all plea bargains and enforcing a right to a speedy trial.

    1. I have been so on a lonely crusade against the plea bargain system, including a self published book. Google “Why the Innocent Plead Guilty and the Guilty Go Free” or “the Guilty are Under-Punished” or “the Guilty Get Sweet Deals” or a dozen other titles I have floated.

      In the short run the plea bargain system saves money for the system and is expedient. In the long run it leads to horrific injustice and a society ready to go to war with itself in “Gangs of New York” movie fashion.

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