Not Twice for the Same: How the Dual Sovereignty Doctrine is Used to Circumvent Non Bis In Idem.

• Author: Lopez, Dax Eric

ABSTRACT

Today, it is quite possible for a criminal defendant who has violated the laws of several countries with one criminal act to be subject to multiple prosecutions. In situations where two countries share concurrent criminal jurisdiction, it is unclear whether the defendant would be able to rely on some level of double jeopardy protection. International taw currently does not obligate a sovereign state to recognize another state's penal judgments, thus allowing states to prosecute a defendant regardless of any legal action that may have been previously taken against the defendant. Several countries, however, have chosen to provide defendants with at least some level of double jeopardy protection. In the international realm, the prohibition against multiple prosecutions for the same offense is cited as the maxim non bis in idem.

Despite the fact that the Fifth Amendment of the Constitution of the United States provides for such protection against sequential prosecutions, the United States does not extend this protection to defendants who have been prosecuted in another sovereign state. Under the judicially-constructed dual sovereignty doctrine, U.S. courts allow separate sovereigns to seek redress for violations of their law independent of any action that may have been previously taken by another affected sovereign. It is this doctrine that the U.S. courts cite in choosing not to recognize non bis in idem as a binding principle of international law, but rather as a protection that may be provided only by treaty in cases of extradition. Often times, however, defendants are left with little or no protection even with operative treaty provisions.

This note considers the issues and implications presented by the United States' use of the dual sovereignty doctrine in permitting multiple prosecutions. It will further discuss how U.S. courts have counteracted non bis in idem even in the presence of a treaty provision. Finally, this note will propose a standard that provides the United States with an avenue with which to vindicate its interests while at the same time subjecting the defendant to a single trial.

1. INTRODUCTION

   As more and more crime begins to transcend national borders in the new millennium, nation-states will find themselves sharing concurrent criminal jurisdiction with other states over the same defendants. In such cases, the problem is that a defendant who has violated the laws of several states may be subject to multiple prosecution. The question then becomes: to what extent is that defendant protected against double jeopardy?(1)

   The problem of concurrent jurisdiction is becoming more common as certain crimes such as drug trafficking, terrorism, and genocide have multinational effects.(2) Currently, the general rule in international law does not obligate a sovereign state to enforce another state's penal judgments.(3) Thus, under the current state of the law, defendants who engage in these activities would likely face individual and separate prosecution in each sovereign that chooses to exercise its jurisdiction over him.(4) Although this is within the discretion of local prosecuting authorities, the fact that sovereigns are free to prosecute those defendants that may have been previously convicted or acquitted by another court is troubling under the well-accepted tenets of both national and international law.

   Nevertheless, the vast majority of legal systems have chosen to provide defendants some level of protection against multiple prosecutions for the same offense.(5) In the international realm, this prohibition is cited as the maxim non bis in idem(6) and is the international equivalent to the protection provided by the Double Jeopardy Clause of the Fifth Amendment.(7) Despite some differences in application, at the foundation of both double jeopardy and non bis in idem are similar considerations of fairness, just treatment, and respect for an individual's dignity.(8) Moreover, the rationale underlying both principles provides that a state possessing vast and powerful resources should not be allowed to continually subject a defendant to harassment, anxiety, and the great expense of defending himself.(9)

   Even though domestically the idea prohibiting multiple prosecutions is one our most valued and cherished constitutional protections, the United States does not extend this protection to defendants who have previously been prosecuted by another sovereign state. Further adding to this apparent paradox, the U.S. Supreme Court has developed a doctrine that expressly allows for sequential prosecutions in cases where a defendant's actions violate the laws of separate sovereigns.(10) Known as the dual sovereignty doctrine, this approach allows each sovereign to seek independent redress regardless of any legal action that may have been previously taken by other affected sovereigns.(11) This approach, which is unfaithful to the protection provided by double jeopardy, has not been universally adopted. Instead, some countries have attempted to remain committed to the principle of non bis in idem by giving legal effect to other countries' penal judgments, thereby preventing the injustice of placing a defendant in double jeopardy.(12)

   This note considers and addresses the issues presented by this system which permits multiple prosecutions. Part II of this note introduces and discusses the origins of non bis in idem. Part III describes how U.S. courts have employed the dual sovereignty doctrine to counteract the non bis in idem doctrine in both the presence and absence of an extradition treaty. Part IV evaluates the reasons why the dual sovereignty doctrine is inequitable and ineffective at protecting the rights of criminal defendants. Finally, this note concludes that, despite the Supreme Court's continued reliance on the dual sovereignty doctrine, the doctrine should be abandoned in the international realm and substituted with a more flexible standard that allows sovereigns to cooperate and jointly prosecute defendants.

2. HISTORICAL DEVELOPMENT AND LEGAL BACKGROUND

   1. The Rule's Origin

      Although the idea that no man shall be twice prosecuted for the same conduct is a well accepted tenet of American Constitutional law as well as one of the oldest recognized legal norms in western civilization,(13) its origin remains a matter of speculation.(14) Tracing the evolution of this doctrine is difficult at best. The consensus among writers of antiquity is that the rule finds its roots in Roman and Greek law.(15) According to the Digest of Justinian,(16) Roman law required that "the governor must not allow a man to be charged with the same offense of which he has already been acquitted."(17) This precept, which did not carry the same legal force among the Romans as it does in the U.S. Constitution, eventually developed into the oft-cited Roman law maxim, nemo bis in idem debet vexari,(18) or non bis in idem,(19) which has served as the fundamental principle behind the idea that no man should be tried twice for the same offense.(20) Whatever its origin, one court has observed that the protection against double jeopardy "seems to have been always embedded in the common law of England, as well as in the Roman law, and doubtless in every other system of jurisprudence, and instead of having a specific origin, it simply always existed."(21)

      After the fall of the Roman Empire, the concept of double jeopardy survived through its solemnization in the canon law(22) as well as through the writings of early Christian authors.(23) The canon law's acceptance of the prohibition of multiple trials for the same conduct arose primarily in 391 A.D. from St. Jerome's reading of I Nahum 9 as commanding that "there shall not rise up a double affliction."(24) By 847 A.D., this interpretation supported the need for a prohibition against double jeopardy, as even the church recognized that even God does not judge an individual twice for the same transgression.(25)

      Even with such a strong expression of the principle against multiple prosecutions, it was not until the dispute between St. Thomas Becket and Henry II in the twelfth century that the concept of double jeopardy gained widespread approval.(26) The controversy surrounded the King's desire to further prosecute church clerics in civil tribunals who had already been tried and convicted in the ecclesiastical courts.(27) Relying on the canon law, Becket objected, arguing that to allow further prosecution would violate the maxim nemo bis in idipsum--"no man ought to be punished twice for the same offence."(28) In 1176, following Becket's martyrdom, Henry conceded that clerics convicted in the ecclesiastical courts were exempt from further prosecution in the King's courts.(29) This was a significant event because the King's court and the ecclesiastical court drew their power from different sovereigns, thus giving credence to the argument that the focus of prohibiting successive prosecutions is on the rights of the defendant and not of the prosecutor.(30)

      By 1250, the evolving principle of double jeopardy had begun to emerge in the English common law.(31) According to one commentator, the concept was introduced into the common law through both the canon law traditions and the influence of Roman law scholars who had traveled to England.(32) These scholars influenced jurists and writers who sought to supplement the English common law with the doctrinal refinements of the Roman law.(33) As they were known in England, the prohibitions against multiple prosecutions began not as fundamental, substantive principles of English justice, but merely as a technical parts of criminal procedure.(34) Specifically, the principle was incorporated through the common law pleas of autrefois acquit (otherwise acquitted) and autrefois convict (otherwise convicted).(35) These pleas allowed the defendant to avoid a second prosecution by proving prior acquittal or conviction on the same charge.(36)...