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June 13, 2022

Distinctive 6-3 SCOTUS majority extends reach of "dual-sovereignty" exception to Double Jeopardy Clause in Denezpi v. US

The Supreme Court this morning handed down a criminal procedure decision in Denezpi v. US, No. 20–7622 (S. Ct. June 13, 2022) (available here), with this uncommon 6-3 combination of Justices:

BARRETT, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, BREYER, ALITO, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined as to Parts I and III.

Here is how Justice Barrett's opinion for the Court gets started:

The Double Jeopardy Clause protects a person from being prosecuted twice “for the same offence.” An offense defined by one sovereign is necessarily different from an offense defined by another, even when the offenses have identical elements.  Thus, a person can be successively prosecuted for the two offenses without offending the Clause.  We have dubbed this the “dual-sovereignty” doctrine.

This case presents a twist on the usual dual-sovereignty scenario.  The mine run of these cases involves two sovereigns, each enforcing its own law.  This case, by contrast, arguably involves a single sovereign (the United States) that enforced its own law (the Major Crimes Act) after having separately enforced the law of another sovereign (the Code of the Ute Mountain Ute Tribe).  Petitioner contends that the second prosecution violated the Double Jeopardy Clause because the dual-sovereignty doctrine requires that the offenses be both enacted and enforced by separate sovereigns.

We disagree.  By its terms, the Clause prohibits separate prosecutions for the same offense; it does not bar successive prosecutions by the same sovereign.  So even assuming that petitioner’s first prosecutor exercised federal rather than tribal power, the second prosecution did not violate the Constitution’s guarantee against double jeopardy.

Here is how Justice Gorsuch's dissent gets started:

Federal prosecutors tried Merle Denezpi twice for the same crime. First, they charged him with violating a federal regulation.  Then, they charged him with violating an overlapping federal statute.  Same defendant, same crime, same prosecuting authority.  Yet according to the Court, the Double Jeopardy Clause has nothing to say about this case.  How can that be?  To justify its conclusion, the Court invokes the dual-sovereignty doctrine.  For reasons I have offered previously, I believe that doctrine is at odds with the text and original meaning of the Constitution. See Gamble v. United States, 587 U.S. ___, ___ (2019) (dissenting opinion) (slip op., at 1).  But even taking it at face value, the doctrine cannot sustain the Court’s conclusion.

June 13, 2022 at 10:10 AM | Permalink

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