The Fifth Amendment to the U.S. Constitution bars twice being prosecuted for the same offense. This may seem fairly straightforward, but in fact and law it’s quite analytically gnarly.
Most of the difficulty centers on the word “offence” (at the time the Constitution was drafted, offense was spelled with a “c”). And here is the crux of the Supreme Court’s decision on Monday upholding the so-called “dual sovereignty” exception to the Constitution’s prohibition on double jeopardy.
This doctrine holds that multiple sovereigns may successively prosecute for the same crime. The rationale is that “offence” means an offense against the law of a particular sovereign, so one “offence” may constitute an offence against multiple sovereigns. Hence if you kidnap a person in Texas and bring him into Oklahoma, both states may prosecute. Or if you rob a federal bank in Texas, both the state of Texas and the federal government can prosecute.
This is a good rule. It captures the independent interests of independent legal communities. To be sure, we believe in popular sovereignty where the people rule, and the people have an independent right to prosecute transgressions of their laws.
Indeed, it is an especially good rule when it comes to foreign prosecutions. Imagine a foreign terrorist who commits a crime against the United States. If we take the view that the Double Jeopardy Clause prohibits successive prosecutions, we would be prevented from prosecuting if a foreign nation gets there first. And then imagine the foreign nation lets the terrorist off.
There is one exception here: If the basis of U.S. jurisdiction is the principle of universal jurisdiction under international law, we could not successively prosecute. Universal jurisdiction holds that there are certain crimes that any state can prosecute even if the state has no connection to the crime. If the United States prosecutes the foreign terrorist or narco-terrorist on this basis it must rely on international law to do so, for it would have no national jurisdiction based on the crime affecting U.S. territory or national citizens. In turn, it would not be relying on national law, but on international law for its jurisdiction. And if another state has already used up that international law, the United States can’t step in and enforce it again.
Ultimately, the Supreme Court made the right move. It upheld the dual sovereignty exception to double jeopardy in accord with principles of popular sovereignty. Its decision also promises to protect national interests with the possible exception of cases where U.S. prosecutions of international criminals rest on the principle of universal jurisdiction.
