Double Jeopardy Doesn’t Apply to Federal/State Dual Prosecutions
The unfortunate answer is “Yes”.
The Supreme Court has stated on more than one occasion that the federal government and the individual states are separate “Sovereigns”. This means that each create their own laws independent of each other, and enforce them independently.
It also means, by law, that they derive their authority from no higher authority than themselves.
What is really means is: if the feds want to get you, they’re going to get you regardless of any state prosecutions for the same actions.
Example 1: Terance Gamble
Terance Gamble pleaded guilty in the state of Alabama for being a felon in possession of a firearm. “Federal prosecutors then indicted him for the same instance of possession under federal law.” Gamble v. United States, 169 S.Ct. 1960 (2019).
Gamble moved to dismiss the federal charges citing the Double Jeopardy protections of the 5th Amendment. The district court denied his motion to dismiss, and the case made it all the way up to the Supreme Court.
The dual-sovereignty doctrine is not an exception to the double jeopardy right but follows from the Fifth Amendment’s text. The Double Jeopardy Clause protects individuals from being “twice put in jeopardy” “for the same offence.” As originally understood, an “offence” is defined by a law, and each law is defined by a sovereign. Thus, where there are two sovereigns, there are two laws and two “offences.”
Example 2: Luis M. Sánchez-Valle
The Exceptions to the Rule
For the “dual-sovereigns” doctrine to apply, both entities (state and federal) must be their own separate sovereigns each with a law that was broken by the same action.
The exception to the dual-sovereigns doctrine are territories that are not states. Prime examples of this are Puerto Rico, Guam, and the District of Colombia. None of these three are states, and thus derive any authority they have directly from the federal government.
Because of this lack of separation, they are not their own sovereigns and, thus, Double Jeopardy applies to successive prosecutions for the same crime.
This wasn’t always the case. In 1988, the Puerto Rican Supreme Court ruled that dual prosecutions were okay for Puerto Ricans in Pueblo v. Castro García, 120 P.R. Dec. 740 (1988). However, the Supreme Court overruled this precedent in 2016 with Puerto Rico v. Sánchez-Valle, 136 S.Ct 1863 (2016).
Jeopardy is Needed to Invoke Double Jeopardy
Thus, Puerto Ricans who are prosecuted by the Puerto Rican government for a crime cannot be prosecuted for the same crime by the federal government. However, what does it mean to be prosecuted (or to be put in “jeopardy” for purposes of the Double Jeopardy protection)?
In short, a trial must happen for jeopardy to be invoked. In the First Circuit Court of Appeals (who handles federal appeals from the Puerto Rico federal district court), the Case of Varela-Rivera v. United States reveals the answer.
Gilberto Varela-Rivera was sleeping in a motel when authorities executed a search warrant on him in that hotel room. There, authorities found an illegal firearm. Varela-Rivera was then charged in the Commonwealth of Puerto Rico court with firearms charges.
Varela-Rivera moved to suppress the evidence of the gun because the search was unlawful. He was successful, and the local charges against him were dropped. However, the story does not end there.
Federal prosecutors then charged Varela-Rivera with a crime for the same conduct and Varela-Rivera pleaded guilty and appealed the conviction with dual-sovereign arguments.
The First Circuit held that, because Varela-Rivera was never put on trial, he was never subject to “jeopardy” sufficient to trigger 5th Amendment protections.