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Frequently Asked Questions

Doesn't prosecuting someone in federal court for an offense they were acquitted of in state court violate double jeopardy?

Under a doctrine known as the separate sovereigns doctrine or the dual sovereignty doctrine invented by the Supreme Court, two separate government entities successively prosecuting someone for the same offense is said not to violate the prohibition on double jeopardy.

While this doctrine has stood for quite some time, it is still an area of ongoing dispute and litigation. Unfortunately, the long-term trend seems to be ever in the direction of expanding government power and less protection of the people.

In the case of Gamble v. United States (2019), the United States Supreme Court upheld the separate sovereigns doctrine on a 7-2 split. The majority treated the federal government and each of the state governments as individual, separate sovereigns. Both the dissenting opinions from Neil Gorsuch and Ruth Bader Ginsburg point out that this understanding is in error. As Gorsuch and Ginsburg point out, in the United States, all these government bodies fall under a single sovereign, which is the people. Hence, federal and state governments are not separate sovereigns, but rather entities empowered by one sovereign.

The foundation of separate sovereigns doctrine in American jurisprudence traces back more than 150 years. The United States Supreme Court laid the groundwork for upholding the separate sovereigns doctrine in the case of Fox v. Ohio (1847). It ruled in this case that both the federal government and state governments had jurisdiction "over offences against the current coin of the United States" and both could punish violators.

Soon thereafter, it reaffirmed this general concept of dual sovereignty in United States v. Marigold (1850) and Moore v. People (1852).

Later in the Prohibition-era case of United States v. Lanza (1922), the Court explicitly ruled that, "When the same act is an offense against both state and federal governments, its prosecution and punishment by the latter, after prosecution and punishment by the former, is not double jeopardy within the Fifth Amendment." It upheld this precedent in the subsequent case of Hebert v. Louisiana (1926).

In Abbate v. United States (1959), and Bartkus v. Illinois (1959), the Court upheld the doctrine both when the defendant was convicted in the court of one of the sovereigns and re-prosecuted by the other, and when the defendant was acquitted in the court of one of the sovereigns and re-prosecuted by the other.

At this point, the doctrine was well established when the two sovereigns in question were the federal government and a state government. In the case of Wheeler v. United States (1978), the Court refused to limit dual sovereignty to successive state and federal prosecutions only. Instead, it held that the Double Jeopardy Clause does not bar prosecution of a Native American tribe member in a federal district court after having been convicted in a tribal court of a lesser included offense arising out of the same incident.

The Supreme Court in Heath v. Alabama (1985) once again upheld the dual sovereignty doctrine, explicitly rejecting the "suggestion that the dual sovereignty doctrine be overruled and replaced with a balancing of interests approach". It further applied the dual sovereignty doctrine to "successive prosecutions by two States for the same conduct".

Its recent ill-advised decision in Gamble v. United States (2019) means that this principle will continue in practice for the forseeable future.

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