Federal and State Prosecutions

Federal and State Prosecutions

The premise from the previous section is that an offence is the breach of one sovereign's law. Its most familiar application comes where a federal statute and a state statute reach the same conduct. The doctrine was first worked out for that pairing, and only later did Heath carry it over to two states. Under the rule that grew out of the federal-state cases, a state prosecution does not bar a later federal prosecution for the same conduct, and a federal prosecution does not bar a later state one.¹ A defendant tried in one court system may therefore be tried again in the other, and the second trial is not a second jeopardy for the same offence, because the second government is enforcing its own law.²

Each direction of the rule rests on its own reason, and both reasons come from the way criminal authority is divided in a federal system. In Abbate v. United States the Court observed that if state prosecutions barred federal ones for the same acts, "federal law enforcement must necessarily be hindered."³ The mechanism is easy to trace. A state's charging choices, such as a lenient charge, a quick plea, or a trial that ends in acquittal, would then decide whether federal law could ever be enforced against the conduct, and the federal government would have no way to answer an injury to its own law. The reverse bar fails for a parallel reason. The Court reasoned that letting a federal prosecution foreclose a state one would "bring about a marked change in the distribution of powers to administer criminal justice, for the States under our federal system have the principal responsibility for defining and prosecuting crimes."⁴ A federal prosecutor who moved first could take the case out of the state's hands, and the state's interest in punishing the violation of its own law would go unanswered. With both bars rejected, the only arrangement that leaves each government able to vindicate its own interest is the one the rule adopts, which lets either government prosecute whichever of them goes first.

The rule matters in ordinary modern prosecutions. A federal racketeering charge may rest on a state-law predicate such as murder, kidnapping, or robbery. Federal courts have allowed that charge to proceed even after the defendant was charged with the same state act in state court, and in some instances after the state trial ended in acquittal. Because the dual sovereignty rule gives the state and federal governments concurrent jurisdiction, the state acquittal does not carry collateral estoppel into the federal case.⁵

The pair shows the limit of the rule. Students lose this issue when they stop at same conduct and same elements and call the second prosecution barred, because overlap decides the question only within a single sovereign. The first inquiry is always whose law the second prosecution enforces. If the answer is a different sovereign's, the clause has nothing to say about it.

The rest of this section does two jobs. The first subsection follows the three federal-state cases that anchor the doctrine, in the order the Court decided them. The second explains why the rule outlived one of the reasons originally given for it. Part of the original reasoning was that the Fifth Amendment restrained only the federal government, yet the clause was later incorporated against the states, and the Court has never questioned the doctrine since.⁶

Lanza, Abbate, and Bartkus

Three decisions fixed the rule for federal and state prosecutions, and they are best learned together because they show the two governments acting in both orders. The Double Jeopardy Clause protects a person from being twice put in jeopardy for the same offence, so each case asks whether a prosecution by a second government is a second jeopardy for that offence.⁸ In United States v. Lanza, Washington prosecuted a defendant for violating liquor laws during Prohibition, the federal government then prosecuted the same conduct, and the Court allowed the second prosecution because an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.⁹ The reasoning that Heath later quoted from Lanza supplies the mechanism: each government, when it decides what shall be an offense against its own peace and dignity, exercises its own sovereignty and not that of the other.¹⁰ A prosecution by one government therefore answers a violation of that government's law and leaves the other government's law unvindicated. Part of the Lanza reasoning also rested on the Fifth Amendment's then-limited reach against the states, a point the next subsection takes up.¹¹

Almost four decades later the Court confirmed the rule in two companion decisions that ran in opposite directions. In Abbate v. United States a defendant pleaded guilty in state court to conspiring to destroy another's property and was then convicted in federal court of conspiring to destroy communications facilities operated or controlled by the United States.¹² The Court upheld the federal conviction, observing that if state prosecutions barred federal ones for the same acts, "federal law enforcement must necessarily be hindered."¹³ In Bartkus v. Illinois the order was reversed. The defendants robbed a federally insured savings and loan, were acquitted in federal court, and were then convicted of the same robbery in state court, and the Court affirmed that conviction with reasoning similar to the reasoning in Abbate.¹⁴ On the state side of the rule, a federal prosecution that barred a state one would "bring about a marked change in the distribution of powers to administer criminal justice, for the States under our federal system have the principal responsibility for defining and prosecuting crimes."¹⁵

The two reasons look different, but they protect the same thing, which is each government's ability to enforce its own law without depending on the other's charging choices. If a state's early plea could shut out a federal charge, or a federal acquittal could shut out a state charge, the first government to act would decide the outcome for both. The Court also feared that a prosecution for a minor offense by one government could bar a later prosecution for a serious injury to the interests of the other.¹⁶ The facts of Abbate show how that can happen: the state charge concerned the property of another person, while the federal charge concerned communications facilities the United States operated or controlled, so one plot injured two different interests. Order therefore does no work in the analysis. Lanza and Abbate had the state go first and the federal government second, Bartkus had the federal government go first and the state second, and the second prosecution survived in each.¹⁷

Bartkus marks the pole where the second prosecution is allowed, and a one-fact change marks the pole where it is not.

Students lose this issue when they assume that an acquittal by one sovereign ends every prosecution for the conduct. An acquittal is a verdict that one government's law was not broken, and it says nothing about whether another government's law was broken. The question to ask first is therefore whose law the second prosecution enforces, and the degree of overlap between the charges comes second.

The rule has been criticized, and the criticism is worth knowing even though the Court has not acted on it. The objection is that the burdens of a second trial fall on the defendant just as heavily when a different government brings the case, and that the separate interests of the two governments do not offset those burdens.¹⁸ A middle position has been proposed that would bar the second prosecution unless the second government shows distinct and separate substantial interests of its own, though it runs into the difficulty of deciding how to characterize the interests behind overlapping statutes.¹⁹ A similar instinct appears in Justice Brennan's concurrence in Ashe v. Swenson, which cites a separate opinion in Abbate in support of the view that a single criminal episode should be tried only once.²⁰ The Court has shown no inclination to adopt the middle position, and the rule remains the law.²¹

The most recent test of the doctrine came in Gamble v. United States, where the Court reaffirmed it and observed that the two sovereigns have substantive differences in their interests even when they punish the same act.²² Gamble sustained the pre-incorporation position that an offence is defined by the law of the particular sovereign, so a federal and a state prosecution for the same prohibited conduct, even with the same elements, do not twice put the defendant in jeopardy for the same offence.²³ The Court noted a second point that limits the practical stakes of the whole debate. Because the same-offence inquiry compares statutory elements rather than a unit of criminal conduct, the clause would leave room for many successive federal and state prosecutions even if the doctrine did not exist.²⁴

Incorporation and Survival

The reasoning in Lanza rested on two supports, and only one of them survived the change in how the Bill of Rights reaches the states. The first support is the premise taught above: an act that violates both a national and a state law is an offense against the peace and dignity of each government and may be punished by each. The second support was textual. Part of the Court's reasoning was that the Fifth Amendment applied only against the federal government, and so prohibited only two federal prosecutions.²⁷ When the clause was later applied to the states, that second support fell away. The question for this subsection is why the doctrine did not fall with it.

The textual point made sense in its day, because the Bill of Rights was originally understood to restrain only the federal government, and its reach to the states was worked out one guarantee at a time. In Palko v. Connecticut the Court treated the Fifth Amendment as directed solely to the federal government and declined to hold that the double jeopardy guarantee bound the states automatically through the Fourteenth Amendment.²⁸ That refusal is background only. It reflected a view that the guarantee was not so essential to a scheme of ordered liberty that the Fourteenth Amendment carried it over to the states, and a later decision displaced that view.

The displacing decision was Benton v. Maryland, which held that the Double Jeopardy Clause applies to the states through the Fourteenth Amendment and overruled Palko.²⁹ The consequence of incorporation is that the guarantee is enforced against the states by the same standards that protect it against the federal government, so a state prosecutor and a federal prosecutor are held to the same understanding of the clause.³⁰ Later opinions accordingly treat the clause as binding on the states without further argument, and one concurrence notes that federal standards for what counts as the same offence now apply alike in state and federal proceedings.³¹

The doctrine survived because two questions are separate. The first asks whether the clause binds the government that is prosecuting, and incorporation answered that question for the states. The second asks whether the second prosecution is for the same offence, and incorporation left that question untouched, because an offence is the breach of one particular sovereign's law and a different sovereign's prosecution enforces a different law, however the clause reaches either of them.³² The textual point in Lanza was a supplementary reason. The foundation is that each sovereign has an independent interest in punishing those who violate its laws and an independent right to do so, and that foundation does not depend on which governments the clause restrains.³³ For that reason the Court has never questioned the vitality of the doctrine since incorporation, and it later sustained the pre-incorporation position that an offence is defined by the law of the particular sovereign.³⁴

The clearest proof is Heath v. Alabama, decided sixteen years after Benton. Georgia and Alabama were both bound by the incorporated clause, and Alabama could still prosecute Heath after Georgia had convicted him, because each state's law defined its own offence.³⁵ The question in Heath was whether the two prosecuting states were separate sovereigns, and the case did not ask whether the clause reached the states at all. That question had been settled in Benton.

The pair shows that the two questions move independently. Applying the clause to a government decides whether the clause can be invoked against it, and the identity of the sovereign decides whether the offence is the same. A frequent exam error is to reason that because the clause now binds the states, a state prosecution after a federal one, or after another state's, must be barred. That error confuses the reach of the clause with the meaning of offence. The clause applies to both governments, and the second prosecution is still permitted when it enforces a different sovereign's law.