In an Age of Cooperative Federalism, How Relevant is the Dual Sovereignty Doctrine?

SOGOL GHOMESHI—The Fifth Amendment provides in part that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.”

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

Under the dual sovereignty doctrine, courts have rationalized punishing a defendant twice for the same act by distinguishing between an act and an offense. One act may be perceived as two offenses if that singular act violates the laws of two separate sovereigns. The doctrine is grounded on the “common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct offences.’” Courts have applied the dual sovereignty doctrine to preserve the distinct powers of separate sovereigns.

Today, different sovereigns collaborate as part of task forces comprised of state, local, and national agents to effectuate shared objectives. Where state and federal interests are similar enough to warrant the collaboration of investigative forces, are successive prosecutions necessary to vindicate the interests of each sovereign? While most courts continue to recognize and apply the dual sovereignty doctrine to challenges brought against successive prosecutions in state and federal courts, the Supreme Court of Pennsylvania expressed that notwithstanding the doctrine, if federal and state interests are not substantially different, a second prosecution for the same offense is impermissible. To reach its finding, the court engaged in a “balancing process,” weighing the interests of the two sovereigns against the interest of the individual.

Where courts do not engage in such a balancing process, the interest of the individual may fade in light of preserving the, sometimes identical, interests of the separate sovereigns. For example, in Booth v. State, the Florida Supreme Court acknowledged its awareness of the Pennsylvania court’s decision, but declined to adhere to any policy that would prohibit successive prosecution by state or federal prosecutors, even if the interests of both sovereigns are substantially similar. In determining that “successive prosecutions [are permitted] in federal and Florida courts on charges arising out of the same transaction,” the court did not discuss the constitutional interest of the individual “to be free from twice being prosecuted and punished for the same offense.” Such adherence to the dual sovereignty doctrine is troublesome as sovereigns’ interests increasingly intersect. Where state and federal interests are sufficiently similar to yield shared investigations or shared prosecutors, a court should at the very least conduct a balancing test to determine whether the rationale underlying the dual sovereignty doctrine, applied today, supersedes the individual’s constitutional right against being “twice put in jeopardy.”

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