Yesterday’s Supreme Court’s decision in Denezpi v. United States is a reminder that the constitutional protection offered by the Fifth Amendment’s double-jeopardy clause is much narrower than many people think. The Fifth Amendment promises that “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” Non-lawyers may be under the impression that this means that you cannot be prosecuted twice for doing the same thing. Not so fast! The Fifth Amendment says “offence,” and that means prosecuted under the same law for the same crime. There are two big ways in which prosecutors get around this.
The big one is the dual-sovereignty rule: A criminal defendant can be prosecuted by two different governments for essentially the same crime, because the violation of the law of two different sovereigns is a different “offence.” The classic example is federal and state prosecution, but if a crime crosses state lines, there may also be the possibility of prosecution by two different states. Things really get slippery when a Native-American reservation is involved, because each tribe is its own separate sovereign. In theory, a drug smuggler or a kidnapper crossing two state lines and entering a reservation could be prosecuted four separate times — once by the feds, once by each state, once by the tribe — and could go to jail for a very long time even if acquitted three times. So much for the sanctity of the rule against double jeopardy.
A criminal defendant can also constitutionally be prosecuted by the same government twice for two different “offences” arising from effectively the same set of facts; while there are some limits to this in non-constitutional rules, the principle federal constitutional limitation is the Blockburger rule. Under Blockburger v. United States (1932), the two offenses are distinct if each “requires proof of a different element,” that is, each crime requires proof of something (a state of mind, an additional overt act, even a different jurisdictional hook such as the distinction between mail fraud and wire fraud) that the other doesn’t. Even then, the government may charge a “lesser included offense” that overlaps, but when it does that, it has to charge the two together, and a defendant cannot be subjected to a separate sentence if convicted on both the greater and lesser included offenses. (The Blockburger doctrine has a number of other wrinkles; it’s often a technical area.)
This is not ideal, and it may not be what the Founders would likely have wanted, had they envisioned a world with a vast and overlapping federal criminal code, mechanical forms of transit that traverse state lines on a daily basis, and Native-American tribes living on reservations ruled in a regulatory partnership with the federal government. But, at least with regard to the dual sovereignty rule, it is what they wrote: The meaning of “offences” was fairly clear and well-known in 1791. In Gamble v. United States (2019), the Court rejected an effort to overturn the dual sovereignty precedents, with only justices Neil Gorsuch and Ruth Bader Ginsburg dissenting. As Justice Clarence Thomas observed:
The founding generation foresaw very limited potential for overlapping criminal prosecutions by the States and the Federal Government. The Founders therefore had no reason to address the double jeopardy question that the Court resolves today. Given their understanding of Congress’ limited criminal jurisdiction and the absence of an analogous dual-sovereign system in England, it is difficult to conclude that the People who ratified the Fifth Amendment understood it to prohibit prosecution by a State and the Federal Government for the same offense.
The wrinkle presented in Denezpi was that it involved a prosecution under federal law following a prosecution under the law of a tribe, the Ute Mountain Utes, that does not operate its own court system; it allows a Bureau of Indian Affairs court to handle the enforcement of its laws. Merle Denezpi, a member of the Navajo Nation, was prosecuted for a rape under Ute law, but given the charge to which he plea-bargained, the maximum sentence was only six months, and he was sentenced to four and a half months. He was then indicted under federal law, convicted, and sentenced to 30 years. The second bite at the apple took a much bigger bite. The Court, in a 6–3 opinion by Justice Amy Coney Barrett, adhered to Gamble, and ruled that the dual-sovereignty doctrine applies even when two different sovereigns (the Utes and the federal government) have their laws enforced in the same sovereign’s courts by the same sovereign’s courts. As Gorsuch put it in his dissent, joined by Justices Elena Kagan and Sonia Sotomayor: “Federal agency officials played every meaningful role in his case: legislator, prosecutor, judge, and jailor.”
The Denezpi Court got the law right, but the rule remains inadequate to protect the civil liberties of Americans against successive prosecutions. Some states, such as New York, have more rigorous protections in their state constitutions (New York courts resisted an effort to water that rule down just to get Paul Manafort). Both state and federal law can restrict prosecutorial powers without relying on the Supreme Court’s interpretation of the Constitution, as originally understood. A more vibrant protection against successive prosecutions would require that kind of action.