Double Jeopardy

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.