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Bring Back the Constitution's Prohibiton of Double Jeopardy

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When Donny Clark was arrested in 1990 as part of a twenty-eight-man conspiracy to grow marijuana, he was the only defendant who refused to accept a plea bargain. Clark insisted he was innocent. Five years earlier, Clark was convicted in a Florida court for growing marijuana, but he served his time and was now working legally as a watermelon farmer. The new case, which was built by a federal prosecutor in Tampa, involved a ring of marijuana growers that included two of Clark’s sons. Clark was listed in the charges for having taught his sons how to grow marijuana prior to his original conviction.

By taking his case to court, Clark faced a potential life sentence. But his alleged involvement in the conspiracy, by the prosecutor’s own admission, went no further than the original crime for which he had already served time. The Fifth Amendment protects citizens from double jeopardy — being prosecuted twice for the same crime — and since Clark’s trial did not involve a new crime, it should have been thrown out. The only difference was that the new charges were brought by the federal government, while the original charges were made by the state of Florida. The federal and state governments are separate sovereigns, the judge explained, so double jeopardy did not apply. Donny Clark was found guilty and sentenced to life in prison, despite having committed no new crimes.

Clark’s case is unique in that he refused to accept a plea deal, but there was nothing unusual about his arrest or the case against him. In the 1990s, as part of Operation Triggerlock, federal prosecutors searched state cases that had already been closed for anybody who had violated federal gun laws. In Donny Clark’s original case, for example, he was only given probation for growing marijuana, but he served time for violating his probation by keeping a hunting rifle on his farm; he was never charged with a violent crime. To boost federal arrest and prosecution rates, the Justice Department sought easy cases from people who had already been convicted in state or local courts, sometimes even arresting them on the day of their release from prison. More than 6,000 defendants were charged with federal crimes in the first year of Operation Triggerlock, which continues to be periodically reintroduced.

The strategy of pressing federal charges against people for crimes that state and local courts had already prosecuted is an easy way for the Justice Department to inflate their own conviction records. Instead of building new cases from scratch, the federal prosecutor only has to duplicate the case already won in a state court. But few people are aware that this actually occurs, or that it has been going on for nearly a century.

The practice of double-prosecution was born during alcohol prohibition. Section 2 of the Eighteenth Amendment states that Congress and the States have “concurrent power to enforce” prohibition. There is no reason to believe that this clause was intended to override the Fifth Amendment protection against double jeopardy, but that’s how it was ultimately interpreted by the Supreme Court. After Vito Lanza was convicted as a bootlegger in the state of Washington, the federal government pressed separate charges for violating the National Prohibition Act (usually referred to as the Volstead Act). After his federal conviction, Lanza challenged the ruling as violating the Fifth Amendment, and United States v. Lanza went all the way to the Supreme Court. The Court unanimously ruled that because the federal and state governments were separate sovereignties, Lanza’s case did not constitute double jeopardy. In other words, the second conviction was the first time he was placed in jeopardy by the national government.

It is hard to interpret this ruling as anything other than a bastardization of dual sovereignty. When the Constitution was drafted, the system of dual sovereignty the framers designed was a way of outlining legislative jurisdiction between states and the federal government. The federal government was granted the authority to craft legislation in specified areas of the law that warranted uniformity between the states, such as immigration and bankruptcy. In most areas, though, especially with regard to criminal law, the states were left to legislate as they saw fit. Dual sovereignty was designed as a way of specifying legislative jurisdiction, which would avoid redundant legislation. With Lanza, not only did the Supreme Court recognize the redundant legislative authority, but they also invoked the “concurrent power to enforce” stipulation to throw out the protection against redundant prosecutions.

The Lanza ruling only applied to the Eighteenth Amendment, so the legal implications of the ruling were narrow, especially after prohibition was repealed, but the legal logic SCOTUS employed survived. In 1959, two cases quickly reestablished the dual-sovereignty exception to the Fifth Amendment, broadening the application to any overlapping state and federal laws. In Bartkus v. Illinois, SCOTUS ruled that states could prosecute for a crime that had already been tried in federal courts, and in Abbate v. United States, the court extended the logic in the other direction, ruling that the federal government could prosecute for crimes that were previously tried in state courts. Together, the two cases established the Bartkus-Abbate rule, allowing double prosecution in any cases that involved overlapping state and federal jurisdiction.

One of the primary justifications for the Bartkus-Abbate rule was that it helped prevent potential avenues for nullification. This fear was first spelled out in the Lanza decision by Chief Justice William Howard Taft. He argued that if a state chose to punish prohibition violations “by small or nominal fines, the race of offenders to the courts of that state to plead guilty and secure immunity from federal prosecution for such acts would not make for respect for the federal statute.” In Bartkus, Justice Felix Frankfurter adopted the same logic, offering his opinion in more general terms that would apply to all manner of legislation.

In other words, the Bartkus-Abbate ruling reduced the potential threat of nullification. In an article for the Stanford Law Review, James King gave an example of how a state might nullify a federal law if the Bartkus-Abbate rule were not in place:

Suppose the federal government outlaws the purchase of handguns, providing a minimum penalty of 1 year in prison for purchasing such weapons. An anti-gun control state could nullify the new federal law by enacting a similar law providing a maximum penalty of a 5-dollar fine for purchasing handguns. All individuals purchasing handguns could theoretically race to the state courthouse and plead guilty, thereby immunizing themselves from federal liability.

The fear of nullification is absurd even for people who think nullification is actually dangerous. Historically, when states nullify federal laws — such as the many nullifications of the Fugitive Slave Act or the more modern nullifications of federal marijuana laws — they explicitly refuse to enforce or prosecute the nullified law, rather than employing the legal trickery that Justices Taft and Frankfurter fretted over. In practice, double prosecutions almost exclusively occur over laws where the state and federal penalties are comparable. The result is a drastic increase in the penalty imposed on the defendant, whose prison terms are not considered to be overlapping; the state conviction has to be served in a state prison, and the federal conviction is served separately in a federal prison.

As recently as 2018, the Bartkus-Abbate rule was challenged. In Gamble v. United States, Justice Gorsuch argued that “a free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy.” With only Justice Ginsburg joining him in the dissent, the Supreme Court upheld the dual-sovereignty exception to the Fifth Amendment yet again.

The original idea of separate sovereignties was intended to limit the legislative authority of the federal government. Instead, the Supreme Court has transformed it into a doctrine that allows all levels of government to share in the oppression of the citizenry.


Chris Calton

Chris Calton is the Research Fellow in Housing and Homelessness at the Independent Institute. He received his Ph.D. in History from the University of Florida. He is a former Mises Institute Research Fellow and host of the Historical Controversies podcast.

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