Limitations Imposed on the Dual Sovereignty Doctrine by Federal and State Governments

Thomas White — Wed, 10 Feb 2010 15:25:06 PST

Because the dual sovereignty doctrine permits multiple prosecutions of an individual by state and federal governments for essentially the same conduct, the increasing federalization of criminal law has marginalized much of the double jeopardy protection afforded by the Constitution. The Supreme Court’s admonitions to the federal government to judiciously exercise the ability to conduct subsequent prosecutions under federal law following state prosecutions led to the Justice Department’s 1959 creation of the Petite doctrine which limits and prioritizes prosecutions if overlapping jurisdiction exists. Over half of the states, at one time, limited or prohibited subsequent prosecutions and half still do. This article examines (1) the jurisprudential bases of the dual sovereignty doctrine as well as two recent practical applications, (2) whether the doctrine continues to be constitutionally viable in light of the increasing amount of federal criminal law in areas traditionally regarded as matters of state primacy and the rise in intergovernmental law enforcement efforts, and (3) the extent and enforceability of limitations placed upon the dual sovereignty exception to double jeopardy by the federal and state governments.