Sunday, June 19, 2016

Justices Ginsburg and Thomas cordially invite you . . .

. . . to bring SCOTUS a double-jeopardy case. More specifically, they think it's time that the Court revisit the dual-sovereignty doctrine. This is the doctrine under which both state and federal authorities are allowed to prosecute someone for the same act without offending the double-jeopardy clause.



In Puerto Rico v. Sanchez Valle, the Supreme Court held that this doctrine does not allow Puerto Rico to prosecute someone for the same crime that has been charged in federal court, because Puerto Rico is not a separate sovereign for double-jeopardy purposes. Justices Ginsburg and Thomas concurred, suggesting that they might go further and find even dual prosecutions by separate sovereigns to violate the double-jeopardy clause:

The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct . . . . Current "separate sovereigns" doctrine hardly serves that objective. States and Nation are "kindred systems," yet "parts of ONE WHOLE." The Federalist No. 82 . . . . Within that whole is it not "an affront to human dignity," . . . "inconsistent with the spirit of [our] Bill of Rights," . . . to try or punish a person twice for the same offense? Several jurists and commentators have suggested that the question should be answered with a resounding yes: Ordinarily, a final judgment in a criminal case, just as a final judgment in a civil case, should preclude renewal of the fray anyplace in the Nation . . . . The matter warrants attention in a future case in which a defendant faces successive prosecutions by parts of the whole USA.

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