Concept
Limits Beyond the Clause
Dual sovereignty
Limits Beyond the Clause
The dual sovereignty doctrine, as the earlier sections developed it, is broad. The federal government may prosecute a defendant who has already been prosecuted by a state for the exact same offense, and a state may prosecute after another state or after the federal government has tried the same crime.1 The doctrine rests on the idea that each sovereign has an independent interest in punishing violations of its own laws and an independent right to do so, and that independence is why the Double Jeopardy Clause does not stop the second prosecution.2 A rule that permits a second prosecution does not require one, however, and that gap is where this section sits. The Clause marks the minimum protection a defendant holds, and other sources of law and practice can protect more without disturbing it. Two such sources matter here: legislatures that bar a later prosecution by statute, and prosecutors who decline to bring one as a matter of policy. Neither is a double jeopardy rule that the Constitution imposes.
The reason these limits live outside the Clause follows from what each one does. The Clause answers the question of what the Constitution forbids, and for two separate sovereigns it forbids nothing, because each owns its own right to punish. That leaves open the worry that a defendant may face one government's prosecution after another's, and the Clause gives that worry no answer. The actors best placed to answer it are the ones who control whether the second case is ever brought. A legislature can decide that its government will not prosecute once another has, and a prosecutor can decide not to file.3 Each of them is choosing not to use a power it holds, so the constitutional rule stays exactly where it was, and the defendant receives protection the Clause itself never supplied. This is also why the doctrine's breadth on paper says less than one might expect about how often a second prosecution actually follows. The next two subsections take the two kinds of limit in turn, beginning with statutory bars.
The sovereignty analysis also varies from one constitutional provision to another, which keeps the dual sovereignty doctrine from being mistaken for a general rule. In Murphy v. Waterfront Commission the Court rejected the separate-sovereign approach for the privilege against self-incrimination as between the state and federal governments, holding that the privilege protects a state witness against incrimination under federal as well as state law, and a federal witness against incrimination under state as well as federal law.4 That holding concerns a different clause and leaves the double jeopardy doctrine where it was. The Double Jeopardy Clause still treats each sovereign's offence as its own, so a defendant who wants protection from a second sovereign's prosecution must find it in a statute or in prosecutorial restraint.
On an exam, a stem in which a second sovereign prosecutes after a first begins with the constitutional question, and for separate sovereigns the answer is that the Clause does not bar the second case. A stem that then mentions a statute or an internal prosecutorial guideline is testing a different question, and the answer depends on what that source actually provides. Students lose this issue when they treat a prosecutor's policy against a second case as a constitutional right the defendant can assert, because such a policy is a matter of self-restraint and not a legal limit on the government's power to prosecute.5
Statutory Bars
The first source of protection beyond the Clause is legislation, and the federal statutes show most clearly how it works. Congress has specified that, for a handful of crimes, a state conviction or acquittal precludes a federal prosecution for the same offense. Theft or embezzlement from an interstate or foreign common carrier is one such crime, and theft or embezzlement from a registered investment company is another.7 The carrier provision, 18 U.S.C. § 659, expressly prohibits a federal prosecution under that statute where the defendant has already been convicted or acquitted on the merits under the law of any state.8 A defendant convicted in state court of stealing from an interstate carrier therefore cannot be tried federally under the statute for that theft, even though the Constitution alone would have permitted the second case. The statute does what the Clause declines to do, and it does so for these crimes only.
The reason a statute is needed follows from the premise on which the doctrine rests. An offence is a breach of one sovereign's law, so a defendant who has violated the laws of two sovereigns has committed two offences, and the second prosecution is not a retrial of the first.9 That premise leaves no room for a constitutional bar, and the Court has refused to create one by asking whether the second government has an interest the first prosecution left unvindicated. Heath declined to confine the doctrine to cases where the second government can make that showing.10 A statute supplies a categorical version of that protection without asking courts to weigh anything. The legislature picks the crime, decides in advance that a prior conviction or acquittal elsewhere should end the matter, and the bar then operates by its terms. A court applying the Clause would have to balance governmental interests case by case, a task made harder because the interests behind the relevant state and federal statutes are difficult to characterize.11
States can build the same protection into their own law. A state may expressly reject dual sovereignty by statute so that a conviction or acquittal in another jurisdiction, including a federal court, precludes prosecution in that state, and Utah illustrates the point in State v. Robertson.12 Georgia's statute bars a state prosecution for the same conduct where the accused was earlier convicted or acquitted in a federal district court of a crime within the state's concurrent jurisdiction.13 That bar has limits of its own. It does not apply if each prosecution requires proof of a fact the other does not, or if the crime had not been consummated when the earlier trial began.14 Because the legislature writes the terms, the terms control: a bar can be framed around conduct and still be cut back by an exception framed around elements.
The same pattern appears where two states both have jurisdiction over a crime. Under the Constitution, a conviction or acquittal in one state does not bar a prosecution in the other, yet a statutory provision frequently prohibits the second prosecution.15 For boundary rivers, it has been said that the state first acquiring jurisdiction over the person may prosecute, and that its judgment is final in both states, so a person convicted or acquitted in one cannot be prosecuted for the same offense in the other.16
The two outcomes differ only in whether a legislature has acted. Without a statute, the constitutional rule that each sovereign owns its own offence leaves the second prosecution available.17 On an exam, a stem that describes a prior state conviction and a later federal charge calls first for the constitutional answer, which for separate sovereigns is that the Clause does not bar the second case. The stem then calls for a search for a statute that does. Students lose this issue when they stretch a statutory bar beyond the crimes the statute names, because Congress specified only a handful of crimes and each state's statute carries its own terms and exceptions.18 The next subsection turns to the other source of restraint, which comes from prosecutors rather than legislatures.
Prosecutorial Restraint
Prosecutors supply the second source of protection beyond the Clause, and a prosecutorial policy differs from a statute because it binds no one except the office that adopts it. In Abbate v. United States the Court upheld a federal conviction that followed a state guilty plea to the same conspiracy.20 Shortly afterward the Attorney General issued a memorandum to all United States attorneys directing that no federal case be tried when there had already been a state prosecution for substantially the same act or acts, unless an Assistant Attorney General approved after consultation with the Attorney General.21 The memorandum came to be called the Petite policy, after Petite v. United States, the case in which the Supreme Court noted it.22 The sequence is worth holding onto. The Constitution left federal prosecutors free to follow a state case, and the Department then adopted a rule of its own that makes the follow-on case the exception.
The policy now provides that a federal prosecution should not follow a state prosecution for the same offense unless there is a substantial federal interest in the crime and the state prosecution left that interest "demonstrably unvindicated."23 The Department's statement of the policy adds two further conditions: the defendant's conduct must constitute a federal offense supported by admissible evidence sufficient to obtain and sustain a conviction, and the appropriate Assistant Attorney General must approve the prosecution.24 The first two conditions do the real screening. The substantial-interest condition asks whether the federal government has a stake of its own in the crime, and the unvindicated condition asks whether the state case already served that stake.
That second question is the one the Supreme Court declined to make a constitutional requirement. In Heath v. Alabama the Court refused to confine dual sovereignty to cases in which the second government can show that letting only one government prosecute would leave its own interest unvindicated.25 A court enforcing that showing as a rule of the Clause would have to weigh governmental interests case by case, and the interests behind a particular pair of state and federal statutes are often hard to characterize.26 A prosecuting office applying the policy to itself faces no such difficulty. It controls whether the second case is filed, it knows the facts, and it can decline when the first prosecution did the work or proceed when a minor state disposition left a grave federal wrong unaddressed. That second possibility is the very worry behind Abbate and Bartkus v. Illinois, where the Court feared that a prosecution for a minor offense by one government might otherwise bar a later prosecution for a serious impingement on the other government's interests.27
The price of that flexibility is that the defendant holds nothing to enforce. The policy is a matter of self-restraint and not a legal restraint on the government's power to prosecute.28 It is part of the Justice Manual, which the Department develops as its own internal guidance, and although the Department takes it seriously, parties outside the Department cannot enforce it.29 Courts have accordingly held, as in Haley v. United States, that when the government fails to follow the policy there is no legal basis for overturning the resulting conviction.30 A double jeopardy claim must therefore come from the Clause itself, and under the Clause a state offence and a federal offence are different offences because each is a breach of a different sovereign's law.31
The same discretion exists in every prosecuting office, not only in the Department of Justice. A prosecutor may decline to bring a case after another government has prosecuted, not because the power is missing but because in the particular case it may not be entirely fair to proceed.32 Much of this restraint takes the form of coordination before either case is filed. When conduct violates the law of more than one jurisdiction, the prosecutors decide how to coordinate, and their reasons are practical: a limitations period may bar one case, one jurisdiction may offer a heavier penalty or friendlier procedural rules, and one office may have resources another lacks.33 The joint choice of forum also weighs which jurisdiction has the law that best supports the government and where the conduct best fits policy priorities, and a federal forum can offer a neutral setting when local officials have ignored the conduct for political reasons.34 None of these choices gives the defendant a rule to invoke, which is why the doctrine's breadth on paper overstates how often a second prosecution actually follows.
On an exam, a stem that has federal prosecutors charging a defendant after a state conviction, with a note that they skipped the Department's internal approval, tests whether the student keeps the policy apart from the Clause. The constitutional answer for separate sovereigns is that the second prosecution is not barred, and the policy changes nothing about that. Students lose this issue when they treat a violation of the Petite policy as a ground for dismissal, because the policy is internal guidance that the defendant cannot enforce.35 The policy remains useful for a different question, namely whether a given federal case is consistent with the Department's own standard, and the answer to that question turns on whether a substantial federal interest was left demonstrably unvindicated.