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August 16, 2019

"Gamble, Dual Sovereignty, and Due Process"

The title of this post is the title of this new paper now available on SSRN and authored by Anthony Colangelo.  Here is its abstract:

The Constitution’s Double Jeopardy Clause is an analytically gnarly beast.  What seems like a fairly straightforward prohibition on multiple prosecutions for the same crime turns out to be a bramble bush of doctrinal twists and snarls.  At the center is the so-called “dual sovereignty” doctrine.  This principle holds that separate sovereigns may prosecute for what looks like the same “offence” — to use the Constitution’s language — because they have separate laws, and those laws prohibit separate offenses, and thus the Double Jeopardy Clause’s bar on multiple prosecutions for the same offense simply does not come into play.  As a doctrine that relates to a right guaranteed by the Bill of Rights, it’s remarkably one-dimensional in favor of government.

In Gamble v. United States the Supreme Court reaffirmed and built upon this view, or what I have called a “jurisdictional theory” of double jeopardy.  This theory peels back the label “sovereign” to extract its underlying rationale; namely, sovereign means an entity with independent jurisdiction to make and apply law, or prescriptive jurisdiction, and that prescriptive jurisdiction authorizes independent jurisdiction to enforce law through a separate prosecution.  This terminological move from sovereignty to jurisdiction is not just semantic.  Rather, it opens up analysis.  The theory holds strong explanatory power for current double jeopardy law and practice as well as dynamic doctrinal and normative implications for double jeopardy law going forward, perhaps most of all for U.S. prosecutions relating to criminal activity abroad like human rights abuses, piracy, and various forms of terrorism.

It also imports a whole other part of the Constitution: The Due Process Clause, or Clauses — the Fourteenth Amendment for the states, and the Fifth Amendment for the federal government.  For any exercise of jurisdiction in this country must be measured against due process. In other words, if the sovereign has no jurisdiction over the offense, the sovereign cannot successively prosecute.  Here Gamble’s language that the United States might successively prosecute for crimes abroad when it has “interests” fits snugly into existing due process analyses because both the Fourteenth Amendment and the Fifth Amendment tests also involve interest analyses.

August 16, 2019 at 11:22 AM | Permalink


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