Double jeopardy and multiple sovereigns: a jurisdictional theory.

• Author: Colangelo, Anthony J.

TABLE OF CONTENTS INTRODUCTION I. DECONSTRUCTING "SOVEREIGNTY" A. Double Jeopardy and the Problem of Sovereignty B. Sovereignty Means Jurisdiction C. Ultimate Source of Power Means Lawgiver II. AS APPLIED TO THE U.S. FEDERAL SYSTEM III. AS APPLIED TO THE INTERNATIONAL LEGAL SYSTEM A. National Jurisdiction B. International Jurisdiction C. Three Rules of International Double Jeopardy IV. INTERNATIONAL LAW AND PRACTICE A. Human Rights and Humanitarian Law 1. Universal Human Rights Instruments 2. Regional Human Rights Instruments 3. Humanitarian Law Instruments B. International Cooperation 1. Extradition 2. Other Cooperation Conventions C. General Principles of International Law 1. The Hierarchy of Sources Hurdle 2. International Double Jeopardy Protections in National Law a. Common Law Countries b. Civil Law Countries D. International Criminal Tribunal Statutes 1. ICTY and ICTR 2. ICC E. Universal Jurisdiction 1. Jurisdictional Priority in National Laws a. Legislative and Judicial Determinations b. Prosecutorial Discretion 2. Jurisdictional Priority in Treaty Law V. IMPLICATIONS FOR U.S. CONSTITUTIONAL AND INTERNATIONAL LAW A. Normative Stakes B. Implications for U.S. Constitutional Doctrine: "Due Process" 1. Federal/State 2. State/State 3. Federal Extraterritorial C. Implications for International Legal Doctrine: "Reasonableness" 1. General Application 2. Universal Jurisdiction Application D. Further Reducing Successive Prosecutions: Enforcement Comity 1. Enforcement Comity in the U.S. System: The Petite Policy 2. Enforcement Comity in the International System a. U.S.-E.C. Positive Comity Agreement b. Prior Notice and Consultation Provisions CONCLUSION INTRODUCTION

Why can the U.S. federal government prosecute someone for a bank robbery when that person already has been prosecuted for the same bank robbery by the state of Illinois, (1) and vice versa? (2) Similarly, why can Alabama prosecute for a homicide that is already the subject of a final criminal judgment in Georgia? (3)

Now transpose these questions to the international arena where the political stakes may be far higher and the legal implications even more complex and controversial. If a U.S. national is alleged to have committed a crime in Egypt for which he is prosecuted in Egyptian courts, does international law have anything to say about whether the United States can prosecute him again for the same crime? What if the United States prosecutes first and it is Egypt that seeks a second prosecution? Suppose the crime alleged is torture, or a war crime. Would a prior conviction or acquittal in U.S. courts block a prosecution by Spain or Germany under a universal jurisdiction law over such crimes? Could a prosecution by one of these states block the United States from prosecuting its own national? What if instead the case were referred to an international tribunal, like the International Criminal Court? When would a prosecution in national court bar an international tribunal prosecution, and when would an international tribunal prosecution bar a prosecution in national court?

The language of double jeopardy permeates U.S. and international law. Yet we still don't have clear answers to why or when different "sovereigns" may prosecute for the same crime. These questions highlight a central tension between the very idea of sovereignty and the longstanding, widely held legal intuition that an individual should not be subject to multiple prosecutions for the same offense. The questions also implicate the basic power structure of legal systems like the U.S. federal and international system which purport to be comprised of distinct sovereigns--the several states of the United States and the world's nation-states, respectively.

How to, and how best to, answer these double jeopardy questions present legal and policy challenges that are only going to gain in frequency and importance in an increasingly globalized world with an increasing potential for jurisdictional overlap among sovereigns. Conventional accounts of how double jeopardy rules work in systems of multiple sovereigns not only fail descriptively to capture the complexity of existing law, but also fall flat as normative depictions of the high-stakes struggle of interests the rules necessarily imply. Now more than ever, lawyers and policy makers need a sophisticated way of thinking about, and resolving, the competing claims of sovereigns to enforce their laws; of defendants not to be prosecuted multiple times for the same crime; of victims to see justice done; and, not least, of the systems of sovereigns themselves to avoid destabilization through prosecutorial overreaching by some members to the affront and provocation of others.

In the U.S. context, the Supreme Court's facile resort to the doctrine of dual sovereignty functions mainly as an analysis-stopper. By labeling successively prosecuting entities separate sovereigns, the Court permits multiple prosecutions and ends all further discussion under the Constitution's Double Jeopardy Clause. (4) Yet how to determine what constitutes a "sovereign" within the meaning of the doctrine is far from clear. And while the doctrine has invited its fair share of criticism (indeed, it is hard to find any commentary that is not critical), (5) there has been little focused effort to peel back the label of "sovereign" and cleanly articulate what underlies its meaning in this jurisprudence. (6) We are left instead with a famously opaque doctrine (7) and a dearth of analytical tools for predicting its future extension.

The international legal context is even more perplexing. International instruments and state practice seem to point in so many directions at once that the international law of double jeopardy looks to be nothing more than a jumbled mess of partial and often inconsistent rules implying a general doctrinal incoherence. Human rights and humanitarian law instruments guarantee a right against double jeopardy, but only from successive prosecutions by a single state. (8) Extradition treaties guarantee protection from successive prosecutions between states, but only in certain circumstances. (9) State practice is literally all over the map, with some states providing near absolute double jeopardy protection based on a foreign prosecution, and others none at all. (10) At the same time, a clear and uniform international trend appears to be taking hold that would preclude prosecutions based on universal jurisdiction if the defendant has been (or in many cases will be) prosecuted by a state where the crime took place or whose nationals were directly involved. (11) Added to the mix are the statutes of international criminal tribunals, which protect against successive prosecutions as between states and tribunals in some cases but not in others. (12) Perhaps because of this doctrinal disarray, commentary has tended to concentrate on discrete double jeopardy issues, (13) with no work tackling head-on the larger question of whether this apparently discordant body of law and practice might be explicable through a unifying, explanatory theory. (14)

This Article sets out to develop such a theory. The Article then uses the theory to explain, critique, and offer improvements to double jeopardy rules among sovereigns in the U.S. and international legal systems. To be clear from the start, I do not intend to suggest that these two systems are identical; they aren't. Or that double jeopardy rules work exactly the same way in U.S. and international law; they don't. But I do want to use the heuristic and analogical value of each system for the other to come up with an innovative and persuasive theory that explains double jeopardy rules in both. I then evaluate those rules and, ultimately, show how they can be improved by the present theory.

My basic premise will be that "sovereignty" for double jeopardy purposes really means the legal concept of jurisdiction--and, more specifically, independent jurisdiction to prescribe, or to make and apply, law. This prescriptive jurisdiction in turn authorizes independent jurisdiction to enforce that law through a separate prosecution.

Part I combines the Supreme Court's dual sovereignty language with international concepts of jurisdiction to articulate this basic premise. Part II then recasts the history of dual sovereignty in the U.S. federal context using the concepts introduced in Part I. It explains that the doctrine originated out of concurrent federal and state jurisdiction in the U.S. federal system, and that throughout its evolution the Court has consistently justified the doctrine's application in terms of jurisdiction--and, more specifically, in terms of independent jurisdiction to prescribe and enforce law. The theory therefore both opens up analysis of how and why the Court has employed the dual sovereignty doctrine in the past and provides a helpful predictor of how the Court will extend it in the future.

Parts III and IV apply the jurisdictional theory to the international legal system. Using the theory, Part III derives a few baseline rules of international double jeopardy. It argues that: (1) a state with an independent basis of national jurisdiction deriving mainly from entitlements over national territory and persons is an independent lawgiver, or "sovereign," for double jeopardy purposes that retains the ability to apply and enforce its own laws through prosecution in the face of prior prosecutions by other states; and (2) the state may do so whether the crime is a national offense (like homicide) or is also an international offense (like genocide); but (3) where a state's jurisdiction derives solely from a shared entitlement with all other states to apply and enforce the international law against universal crimes, it should be blocked from prosecuting again if another state already has prosecuted for the crime in question. Part III concludes by showing that these same rules of international double jeopardy...