Double Jeopardy Clause - Dual Sovereignty Doctrine

Dual Sovereignty Doctrine

The "separate sovereigns" exception to double jeopardy arises from the dual nature of the American Federal-State system, one in which states are sovereigns with plenary power that have relinquished a number of enumerated powers to the Federal government. Double jeopardy attaches only to prosecutions for the same criminal act by the same sovereign, but as separate sovereigns, both the federal and state governments can bring separate prosecutions for the same act.

As an example, a state might try a defendant for murder, after which the Federal government might try the same defendant for a Federal crime (perhaps a civil rights violation or a kidnapping) connected to the same act. For example, the officers of the Los Angeles Police Department who were charged with assaulting Rodney King in 1991 were acquitted by a jury of the Superior Court, but some were later convicted and sentenced in Federal court for violating King's civil rights. Similar legal processes were used for prosecuting racially motivated crimes in the Southern United States in the 1960s during the time of the Civil Rights movement, when those crimes had not been actively prosecuted, or had resulted in acquittals by juries that were thought to be racist or overly sympathetic with the accused in local courts.

Federal jurisdiction may apply because the defendant is a member of the armed forces or the victim(s) are armed forces members or dependents. U.S. Army Master Sergeant Timothy B. Hennis was acquitted in state court in North Carolina for the murders in 1985 of Kathryn Eastburn (age 31) and her daughters Kara, age five, and Erin, age three, who were stabbed to death in their home near Fort Bragg, North Carolina. Two decades later, Hennis was recalled to active duty, court-martialed by the Army for the crime, and convicted. Richard Dieter, executive director of the Death Penalty Information Center, observed of this case, "Certainly, no one has been exonerated and then returned to death row for the same crime except Hennis."

Furthermore, the "separate sovereigns" rule allows two states to prosecute for the same criminal act. For example, if a man stood in New York and shot and killed a man standing over the border in Connecticut, both New York and Connecticut could charge the shooter with murder.

Only the states and tribal jurisdictions are recognized as possessing a separate sovereignty, whereas territories, commonwealths (for example, Puerto Rico), the military and naval forces, and the capital city of Washington, D.C., are exclusively under Federal sovereignty. Acquittal in the court system of any of these entities would therefore preclude a re-trial (or a court-martial) in any court system under Federal jurisdiction.