Posted on 06/22/2022 12:43:06 PM PDT by Michael.SF.
The federal government prosecuted Merle Denezpi twice for the same crime. It also punished him twice: the first time with 140 days in a federal detention center, the second time with a prison sentence more than 70 times as long.
Although that may seem like an obvious violation of the Fifth Amendment's ban on double jeopardy, the Supreme Court last week ruled that it wasn't. As the six justices in the majority saw it, that puzzling conclusion was the logical result of the Court's counterintuitive precedents on this subject.
The Fifth Amendment says no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." But under the Court's longstanding "dual sovereignty" doctrine, an offense is not "the same" when it is criminalized by two different governments.
That doctrine allows serial state and federal prosecutions for the same crime, opening the door to double punishment or a second trial after an acquittal. Although neither seems just, the Court says both are perfectly constitutional.
The justices reaffirmed that view in a 2019 case involving a man with a felony record who was convicted twice and punished twice for illegally possessing a gun -- first in state court, then in federal court. Although the elements of the crime were the same in both cases, the majority said, the two prosecutions did not amount to double jeopardy because they involved two different "sovereigns."
(Excerpt) Read more at townhall.com ...
I understand the issue related to crossing a state line, but a “federal interest” shouldn’t necessarily mean “federal jurisdiction.” The only role of the federal government in a case like that should be to ensure that a fugitive who flees from a state where he is being charged with a crime is returned to face a trial. That’s it.
Oh wait...
Before 1870, the U.S. Attorney General and the District Attorneys assigned to each Federal district were organized under the U.S. Treasury Department. They had the authority to prosecute crimes, but there weren't many Federal crimes on the books at the time (mainly treason and tax evasion). They worked mostly in civil law, representing the U.S. government in real estate dealings with the states involving Federal lands.
Hallelujah, brother... or sister...
We could write a treatise on this; bet there are a bunch of law reviews that are already half-written.
On the criminal side of this, the “dual sovereignty” makes a lot of sense going back to the time the Constitution was ratified. Strong lines between states and the federal. BUT, the federal (without constitutional amendment) became a feral givernment leaving behind constitutional limitations that it is a givernment of enumerated powers - specific, limited. Had the feral givernment stayed inside that enumerated powers box, this would be really a non-issue. But because the ferals have basically expanded its power into everything, including criminal laws, and with judicial blessing for past 80 years, my instincts tell me that dual sovereignty justification is much weaker doctrine and the double jeopardy position is stronger. I need to read the court opinions nonetheless to see where I come down on this and how expansive the ruling is. Many times the court likes to limit itself to the facts and law at hand ... except when they do things like advance leftists causes, homo marriage, etc.
This was a very bad decision.
It could wreak havoc with first and second amendment rights.
Bad decision.
Well hell. We might as well go WHOLE EFFIN’ HOG.
- World Court prosecution.
- Federal US Court prosecution.
- State Court prosecution.
- County Court prosecution.
- City Court prosecution.
- Precinct Court prosecution.
I mean hell, we GOTTA be able to nail someone with six separate prosecutions!!!!
You would think it should be obvious, right? A straightforward reading of the Bill of Rights clearly indicates that it applies to all levels of government unless it states otherwise.
For example, when the 2nd Amendment says that the right to bear arms “shall not be infringed” it means that it cannot be infringed by any level of government: the state, county, city, nor federal. A clear reading of the 5th Amendment should work the same way: no person “shall be subject for the same offense to be twice put in jeopardy of life or limb”. The level of jurisdiction should not be relevant. It takes a really twisted and tortured interpretation of the constitutional text to think otherwise.
But the amendment does not refer to statutes, it simply says no person shall be subject for the same offence to be twice put in jeopardy. The "offence" is the action, not the "violation of a statute." Else one can be tried any number of times for a crime, in any number of courts. If they'd meant violation of a statute they'd have said that, wouldn't they?
Well done.
Spot on. If i were president i would put you on the supreme court, you don’t have to be a lawyer.
You are confusing the Constitutional Government that D.C. pretends to be with the Administrative Law based one it has become.
This usurpation of the Founding cannot be fixed at the ballot box, nor with a soap box, thus last night's betrayal by McConnell & The Former Texan known as Cornyn™
My goodness … that might be the greatest compliment I’ve ever received here! Thank you! :-)
Thank you!! (It’s brother) :-)
Although I usually agree with Justices Thomas and Alito, I think Gorsuch’s dissenting opinion is spot on. He comes from CO, and in the SW part of the state, Indian law is the law. He has more experience with Indian law than the other justices.
Sadly, you can always depend upon the ‘conservative’ members to side with the State in instances like this.
Ping.
The author is a serial purveyor of legal bullshit.
Denezpi is distinguished for holding there is no double jeopardy bar to successive prosecutions by the same sovereign, provided there are different offenses being prosecuted. Federal, State and Tribal offenses are separate offenses. Their power to punish derives from wholly independent sources. "An offense defined by one sovereign are necessarily different from an offense defined by another, even when the offenses have identical elements."
https://www.supremecourt.gov/opinions/21pdf/20-7622_ljgm.pdf
Denezpi v. United States, S. Ct. 20-7622 (June 13, 2022)
Slip Op. at 1:
JUSTICE BARRETT delivered the opinion of the Court.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.
Slip Op. at 4:
The Double Jeopardy Clause of the Fifth Amendment provides: “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” The Clause by its terms does not prohibit twice placing a person in jeopardy “‘for the same conduct or actions.’” Gamble v. United States, 587 U. S. ___, ___ (2019) (slip op., at 3). Instead, it focuses on whether successive prosecutions are for the same “offence.”That term, we have explained, “‘was commonly understood in 1791 to mean “transgression,” that is, “the Violation or Breaking of a Law.” Ibid.; see, e.g., 2 R. Burn & J. Burn, A New Law Dictionary 167 (1792) (“OFFENCE, is an act committed against law, or omitted where the law requires it”). An offense, then, is “defined by a law.” Gamble, 587 U. S., at ___ (slip op., at 4); see Moore v. Illinois, 14 How. 13, 19-20 (1852). And a law is defined by the sovereign that makes it, expressing the interests that the sovereign wishes to vindicate. Gamble, 587 U. S., at ___ (slip op., at 4); see United States v. Lanza, 260 U. S. 377, 382 (1922) (“Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other”). Because the sovereign source of a law is an inherent and distinctive feature of the law itself, an offense defined by one sovereign is necessarily a different offense from that of another sovereign. See Gamble, 587 U. S., at ___ (slip op., at 4); Moore, 14 How., at 20. That means that the two offenses can be separately prosecuted without offending the Double Jeopardy Clause—even if they have identical elements and could not be separately prosecuted if enacted by a single sovereign. See Gamble, 587 U. S., at ___, n. 1, ___ (slip op., at 3, n. 1, 4); cf. Blockburger v. United States, 284 U. S. 299, 304 (1932) (offenses defined by a single sovereign are distinct offenses only if each “requires proof of a different element”).
This dual-sovereignty principle applies where “two entities derive their power to punish from wholly independent sources.” Puerto Rico v. Sanchez Valle, 579 U. S. 59, 68 (2016). The doctrine has come up most frequently in the context of the States. See, e.g., Heath v. Alabama, 474 U. S. 82, 88-90 (1985) (States are separate sovereigns from one another); Lanza, 260 U. S., at 382 (States are separate sovereigns from the United States). It applies, however, to Indian tribes too.
Slip Op. at 9:
We need not sort out whether prosecutors in CFR courts exercise tribal or federal authority because we disagree with Denezpi's premise. The Double Jeopardy Clause does not prohibit successive prosecutions by the same sovereign. It prohibits successive prosecutions “for the same offence.” And as we have already explained, an offense defined by one sovereign is different from an offense defined by another. Thus, even if Denezpi is right that the Federal Government prosecuted his tribal offense, the Clause did not bar the Federal Government from prosecuting him under the Major Crimes Act too.[...]
Denezpi does not even try to reconcile his position with the text of the Clause. Instead, he presents the dual sovereignty doctrine as “a carveout to the rule against double jeopardy” and argues that the carveout does not extend to successive prosecutions by a single sovereign. Brief for Petitioner 15-17. But Denezpi is wrong to treat the dual sovereignty doctrine as an exception to the Clause. Gamble was very clear on this point: “Although the dual-sovereignty rule is often dubbed an ‘exception' to the double jeopardy right, it is not an exception at all. On the contrary, it follows from the text that defines that right in the first place.” 587 U. S., at ___ (slip op., at 3). The Clause does not ask who puts a person in jeopardy. It zeroes in on what the person is put in jeopardy for: the “offence.” And again, in 1791, “offence” meant the violation of a law. Supra, at 4-5. We have seen no evidence that “offence” was originally understood to encompass both the violation of the law and the identity of the prosecutor.
Treating the identity of the prosecutor as part of the definition of “offence” is as odd as it sounds.
Slip Op. at 13:
Denezpi's single act led to separate prosecutions for violations of a tribal ordinance and a federal statute. Because the Tribe and the Federal Government are distinct sovereigns, those “offence[s]” are not “the same.” Denezpi's second prosecution therefore did not offend the Double Jeopardy Clause. We affirm the judgment of the Court of Appeals.It is so ordered.
What does this do to “immunity”? If offered immunity from prosecution for what you admit at a state level when you could still be prosecuted in another jurisdiction, why accept the offer of immunity?
As I recall, Linda Tripp was prosecuted in Maryland for something she testified to and was given immunity for in Virginia.
First in state court, then in federal court.
Akin to more then one person can sue somebody like war crimes?
Not sure the (2 of 3) libs (and Gorsuch) were wrong on this one.
“That doctrine allows serial state and federal prosecutions for the same crime, opening the door to double punishment or a second trial after an acquittal. Although neither seems just, the Court says both are perfectly constitutional”
I mean....maybe the majority is correct on the law but it sure sounds lame.
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