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The end for dual sovereignty? Justice Ginsburg’s concurrence in Puerto Rico v. Sanchez Valle

June 14, 2016

By David Chen

On June 9, 2016, the Supreme Court in Puerto Rico v. Sanchez Valle held, 6-2, that Puerto Rico and the United States are a single sovereign for Double Jeopardy purposes, which means that they cannot both prosecute an individual for the same offense. Sandwiched between the majority and dissenting opinions was an unusual two-page concurrence authored by Justice Ginsburg and joined by Justice Thomas. More than the unusual pairing, the opinion was notable for essentially inviting parties to bring an issue to the Supreme Court, a rare move from an institution known for its shrinking docket and defensive denials of review. Expressing no disagreement with the Court’s holding, Justice Ginsburg instead called for a “fresh examination” of the Court’s long-held doctrine that separate sovereigns are exempt from the Double Jeopardy bar on successive prosecutions for the same misconduct. Justice Ginsburg rightly called for this “fresh examination” of the issue. Interestingly, the Court had an opportunity to examine this issue just two years ago and declined to do so. Hopefully, the next time the issue comes before the Court, at least two other Justices will agree with Justice Ginsburg and Justice Thomas that “[t]he matter warrants [the Court’s] attention,” and the Court will take up the case.

The Fifth Amendment of the Constitution provides, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The Supreme Court has interpreted this clause to mean that a criminal defendant cannot be prosecuted more than once for the same offense. However, an exception to that rule is the dual sovereignty doctrine, which views separate sovereigns (i.e., the states and the federal government) as distinct sources of authority from which the power to prosecute crimes is derived. Thus, as early as 1847, in a case called Fox v. Ohio, the Supreme Court held that the dual sovereignty exception allows both a state and the federal government to try and punish an individual for the same offense.

In her concurrence in Sanchez Valle, Justice Ginsburg suggested that time was ripe to reconsider that long-established exception. She argued that the Constitution’s Double Jeopardy Clause is “intended to shield individuals from the harassment of multiple prosecutions for the same misconduct.” Because the dual sovereignty doctrine allows different sovereigns to prosecute an individual twice for the same offense, it is incompatible with the purpose of the Double Jeopardy Clause. Justice Ginsburg’s concurrence is a welcome signal that the Court may soon be poised to reconsider this exception to the Double Jeopardy Clause.

Just two years ago, CAC urged the Court to take up this exact issue in its amicus brief supporting the petition for certiorari in Roach v. Missouri. In 2010, Edward Roach was charged separately by the state of Missouri and the federal government with being a felon in possession of a firearm. Despite the fact that Roach had pleaded guilty to the federal charge, the Missouri Court of Appeals refused to allow dismissal of the state charge. As we argued in our brief in support of Roach, both the text and history of the Constitution demonstrate that the Framers of the Bill of Rights viewed the Double Jeopardy bar on successive prosecutions as an essential protection of individual liberty against government overreach.

Borrowing from English common law, the Framers sought to prevent the government, with its resources and power, from subjecting individuals to continuous embarrassment and anxiety through the threat of multiple prosecutions. As we explained, “[w]hen a defendant is subjected to multiple prosecutions for the same offense, the feelings of anxiety and humiliation are the same, regardless of whether the successive prosecutions are brought by the same sovereign or different ones.” The dual sovereignty doctrine erodes the protection against successive prosecutions that the Framers meant to secure through the Double Jeopardy Clause. This is particularly true given that expansive federal criminal laws and significant federal-state law enforcement cooperation now enable the separate sovereigns of the federal and state governments to subject individuals to repeated prosecution for the same conduct.

Moreover, as we also explained in our brief, the dual sovereignty exception makes no sense in light of the way the Fourteenth Amendment changed our constitutional structure. The last time the dual sovereignty doctrine was seriously considered in the 1959 case Bartkus v. Illinois, the Supreme Court based its decision on the now obsolete belief that Double Jeopardy protection did not apply to the states. Since then, the Supreme Court has incorporated the Double Jeopardy Clause into the Fourteenth Amendment, holding that its protections apply to the states in the same way as they do to the federal government, thus undermining whatever basis may have once existed for maintaining the dual sovereignty exception.  As Justice Ginsburg noted in Sanchez Valle, the dual sovereignty doctrine is “inconsistent with the spirit of our Bill of Rights.”

The reasons for eliminating the dual sovereignty exception to the Double Jeopardy Clause are therefore rooted in the text and history of the Constitution. It is unsurprising then that Justice Thomas, a strong advocate of restoring the original meaning of the Constitution, joined Justice Ginsburg’s concurrence. Their unusual opinion indicates that the Court may be primed to take up the issue soon. When it does, it looks like at least two Justices from either end of the ideological spectrum will support eliminating the exception to Double Jeopardy protection. Let’s hope that at least three other Justices decide to join them.