Cert Petition Asks Court to Overturn “Dual Sovereignty” Doctrine in Double Jeopardy Law

The Double Jeopardy clause of the Fifth Amendment provides that no person can “be subject for the same offense to be twice put in jeopardy of life or limb.” Despite its text, the Double Jeopardy clause has been interpreted by the Supreme Court to allow both the federal government and a state government to bring charges for the same conduct because they are separate sovereigns.

In a very interesting cert petition that was recently filed, Roach v. Missouri, the petitioner asks the Supreme Court to overturn this doctrine on originalist grounds. Here’s the question presented:

Under the original meaning of the Double Jeopardy Clause, a prosecution by one sovereign barred subsequent prosecutions by all sovereigns. But the Court strayed from this original meaning when it adopted the doctrine of “dual sovereignty,” which permits prosecutions by multiple sovereigns. Criminal defendants thus now have less Double Jeopardy protection than they had at the Founding. This petition presents unequivocal historical evidence that dual sovereignty is inconsistent with the original meaning of the Double Jeopardy Clause.

The question presented is whether the Double Jeopardy Clause bars a state prosecution for a criminal offense when the defendant has previously been convicted of the same offense in federal court.

The petition is certainly unusual: It asks the Court to overturn its longstanding precedent based on a historical argument without identifying a split or lower court confusion. But the historical argument is a very interesting one. At least on a first read, it seemed pretty persuasive to me. For some similar thoughts from co-blogger Paul Cassell, 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, 709-15 (1994).