Under the so-called dual sovereignty doctrine (“DSD”), the Fifth Amendment’s Double Jeopardy Clause (“DJC”) is not implicated by successive prosecutions brought by separate sovereigns against the same defendant for the same act. For example, if a defendant is prosecuted first by the federal government for a certain crime, that defendant’s right not “to be twice put in jeopardy of life or limb”1ullen Professor, University of Houston Law Center. I am grateful to the following for their comments, suggestions, questions, and criticisms: Lincoln Dow, Meredith Duncan, Lonny Hoffman, and Teddy Rave, as well as the students in my Fall 2022 course on the Supreme Court. I also benefitted from superb research assistance provided by Austin Falcon, Jared Peloquin, Zeshan Mohiuddin, and lawyers in the Houston office of Latham & Watkins. Amanda Watson and her terrific library staff provided invaluable support. Finally, I appreciate the backing of Dean Leonard Baynes and Associate Dean Greg Vetter, and financial support from the University of Houston Law Foundation. for the same offence does not protect him against a subsequent prosecution by a state government for a crime involving the same conduct. As the Court put it in the recent case of Gamble v. United States,2Gamble v. United States, 139 S. Ct. 1960 (2019). Throughout this Article, I refer to criminal defendants using the masculine pronoun, principally because nearly 90% of federal criminal defendants (and more than 90% of inmates in federal custody) are male, and it would therefore be precious to use nongendered pronouns. See Mark Motivans, U.S. Dep’t of Just., Federal Justice Statistics, 2019, at 8, 16 (2021), https://bjs.ojp.gov/content/pub/pdf/fjs19.pdf [https://perma.cc/Q24S-4MN2]. “a crime under one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another sovereign.”3Gamble, 139 S. Ct. at 1964.
I argue in this Article that this DSD errs in two respects, one of which has drawn a bit of attention, and one of which has gone entirely unnoticed in the cases and academic literature. First, as suggested by Justices Ginsburg and Gorsuch in their separate Gamble dissents,4See id. at 1989–91 (Ginsburg, J., dissenting); id. at 1996–99 (Gorsuch, J., dissenting). Until Gamble, Justice Thomas had been similarly skeptical of the originalist justification for the dual sovereignty doctrine (“DSD”), but he changed his mind. Compare Puerto Rico v. Sanchez Valle, 579 U.S. 59, 78 (2016) (Ginsburg, J., joined by Thomas, J., concurring), with Gamble, 139 S. Ct. at 1980 (Thomas, J., concurring). and as I elaborate, the DSD rests on a mistaken originalist view of how successive prosecutions by separate sovereigns were regarded at common law; consequently, the inference as to how the eighteenth-century English doctrine applies to the United States, which rests on a concept of divided sovereignty alien to the common law, is fundamentally flawed.5I am not the first academic to comment on this misreading of historical record. Indeed, the Double Jeopardy Clause (“DJC”) literature pertaining specifically to the historical meaning of the provision is exhaustive; sources I have found especially illuminating include the following: Jay A. Sigler, Double Jeopardy: The Development of a Legal and Social Policy 2–4 (1969); George C. Thomas III, Double Jeopardy: The History, The Law 46–86 (1998). Scholarship that attacks the DSD in particular began to develop following the initial appearance of the doctrine itself. Again, the literature is substantial; and again, arguments I have found particularly compelling include the following: J.A.C. Grant, The Lanza Rule of Successive Prosecutions, 32 Colum. L. Rev. 1309 (1932); Walter T. Fisher, Double Jeopardy, Two Sovereignties and the Intruding Constitution, 28 U. Chi. L. Rev. 591 (1961); Lawrence Newman, Double Jeopardy and the Problem of Successive Prosecution: A Suggested Solution, 34 S. Cal. L. Rev. 252 (1961); George C. Pontikes, Dual Sovereignty and Double Jeopardy: A Critique of Bartkus v. Illinois and Abbate v. United States, 14 W. Rsrv. L. Rev. 700 (1963). For perhaps the most trenchant critique, see Paul G. Cassell, The Rodney King Trials and the Double Jeopardy Clause: Some Observations on Original Meaning and the ACLU’s Schizophrenic Views of the Dual Sovereign Doctrine, 41 UCLA L. Rev. 693 (1994). For an unusually perspicuous analysis of the common law, see Donald Eric Burton, Note, A Closer Look at the Supreme Court and the Double Jeopardy Clause, 49 Ohio St. L.J. 799, 801 (1988); see also Michael Kline, Note, Wading in the Sargasso Sea: The Double Jeopardy Clause, Non-Capital Sentencing Proceedings, and California’s “Three Strikes” Law Collide in Monge v. California, 27 Pepp. L. Rev. 861, 863–65 (2000); infra note 23.
Second, the current and longstanding view of the DJC assesses whether that Clause is implicated by focusing on whether the same offense (or conduct) forms the basis for successive prosecutions by separate sovereigns. I offer an entirely different methodology that does not depend (as does this orthodox view) on an unsound originalist analysis.6See infra text accompanying notes 32–38 in Part III. Moreover, the approach I offer in this Article to the DSD/DJC analysis would remain superior to the existing jurisprudence even if the originalist argument for the DSD were historically sound. A nonoriginalist could therefore embrace my elements-based approach regardless of the historical critique. I nevertheless stress the weakness of the originalist argument primarily in order to clear the field of what is essentially a red herring and to obtain potential buy-in from committed originalists. Finally, although, as I say, I am not aware of any court or academic who has proposed the approach to double jeopardy I develop here, an interesting student note examined a related issue: namely, whether a criminal defendant who is subsequently sued for civil damages can invoke (or should be able to invoke) preclusion in the civil proceeding. See Wystan M. Ackerman, Note, Precluding Defendants from Relitigating Sentencing Findings in Subsequent Civil Suits, 101 Colum. L. Rev. 128, 128–30 (2001). Rather than focusing on what a defendant did or how a sovereign has defined an offense, the better approach to determining whether successive prosecutions by separate sovereigns violate the DJC is to focus on what the jury found. The methodology I propose hones in on the elements of the crime with which a criminal defendant is charged in the initial prosecution because the outcome of that trial will turn on the factfinder’s evaluation of those elements. To my knowledge, nobody has previously proposed this approach to analyzing double jeopardy challenges to successive prosecutions brought by separate sovereigns.
My starting point is the Supreme Court’s recent decision in Gamble, which I summarize in Part I. Next, in Part II, I identify what I refer to as the twin errors that animate the Gamble holding, one entirely historical, and the other primarily analytical. In Part III, I propose a new methodology for examining whether successive prosecutions violate the DJC; I refer to this methodology as an “elements-based approach.” In Part IV, I compare the analytical method outlined in Part III with Gamble itself and illustrate how Gamble would have been decided using an elements-based approach. In Part V, I turn to the principles of issue preclusion and full faith and credit and argue that an elements-based approach to double jeopardy analysis is symmetrical to a similar inquiry in the civil domain. Finally, I conclude by pointing to the DJC-DSD cases the courts have adjudicated over the past two decades, and I ask how consequential the modification I sketch would be on criminal defendants.
