Criminal Law Newsletter

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Permitting Successive Prosecutions by Separate Sovereigns for the Same Offense

The Double Jeopardy Clause of the Fifth Amendment, which generally prohibits the government from putting any person “in jeopardy of life or limb” for the same offense twice, does not bar successive trials for the same offense by “separate sovereigns.”

Determining Whether Two Entities are Separate Sovereigns

Although the Fifth Amendment prohibition against double jeopardy was designed to protect an individual from the possibility of multiple convictions for the same offense, the doctrine of separate sovereignty effectively allows two governments “deriving power from different sources” to prosecute the same defendant for the same conduct.

The determination of whether two entities are separate sovereigns generally turns on whether the prosecuting power of each comes from a separate and independent source. On this condition, the U.S. Supreme Court has interpreted the doctrine of separate sovereignty to allow a person to be tried for the same conduct by both a state and the federal government, or by two states. However, a person may not be tried for the same conduct by a state and its municipalities.

Successive Trials by a State and the Federal Government

In 1922, the Court ruled that a person may be successively tried for the same conduct by a state and the federal government in U.S. v. Lanza. In Lanza, which arose during the time of prohibition, the act of manufacturing, transporting and possessing intoxicating liquor was a crime against the United States under the National Prohibition Act and also against the state of Washington as a violation of state law. Accordingly, the defendants in the case were punished twice for the same act of manufacturing, transporting and possessing intoxicating liquor, first under the National Prohibition Act and again under the Washington statute.

Ultimately, the Court rejected the defendants’ argument that two punishments for the same act constituted double jeopardy. The Court reasoned that the federal government and the state government were two sovereigns, each permitted to “enact laws to secure prohibition” in their own right and to punish a crime that breaks its own law. Further, a state is a separate sovereign from the federal government because the laws in each state “derive their force…not from [the federal government], but from power…preserved to [the states] by the Tenth Amendment.” Since the defendants in this case committed two different offenses by the same act, a conviction by the state and the federal government did not constitute double jeopardy.

Successive Trials by Two States

In 1985, the Court applied the reasoning in Lanza to assess the double jeopardy claim of a man who was successively tried and convicted of the same murder in two states, first in Georgia and subsequently in Alabama. The Court held in Heath v. Alabama that Alabama was not barred from trying the man for the same conduct because the states’ powers to prosecute a defendant derive from “distinct sources.” In this way, “the states are no less sovereign with respect to each other than they are with respect to the federal government.”

Successive Trials by a State and Its Municipalities

However, the Court has held that successive trials for the same offense by a state and its municipalities violate the Fifth Amendment prohibition against double jeopardy. Distinguishing cases that have permitted a state and the federal government or two different states to prosecute a defendant for the same offense, the Court held in Waller v. Florida that a municipal government of a state (e.g., the city) and the state itself may not try an accused for the same offense. The Court reasoned that two tribunals are not separate sovereigns where they each “exert all their powers under and by authority of the same government – that of the United States.”

Capacity of an American Indian Tribe to Act as a Separate Sovereign

Federal law recognizes the capacity of an American Indian tribe to act as a separate sovereign, allowing the federal government to prosecute an American Indian who has already been prosecuted for the same offense by an Indian tribal court or court of Indian offense. Specifically, 25 U.S.C Section 1301 recognizes “the inherent power of Indian tribes…to exercise criminal jurisdiction over all Indians.”

Accordingly, the Court held in U.S. v. Wheeler that the source of an American Indian tribe’s power to punish tribal offenders is not the federal government, but that it is a part of inherent tribal sovereignty. In 2004, the Court expounded on the Wheeler decision, holding in U.S. v. Lara that tribes may also exercise their own tribal authority in prosecuting nonmembers of the tribe.