Most everyone has some idea of what “double jeopardy” is. Protection against double jeopardy is found in the Fifth Amendment of the U.S. Constitution. The specific clause states that “No person shall […] be subject for the same offense to be twice put in jeopardy of life or limb.”
The U.S. justice system has long recognized a “dual sovereignty” exception to that clause. A person can be charged and tried for the same offense in state as well as federal court if the offense violates state and federal laws.
The 2017 Supreme Court ruling
That dual sovereignty rule was affirmed in a 7-2 ruling by the Supreme Court. The case before the court involved a man convicted in both state and federal court for possessing a firearm illegally and therefore was facing two prison sentences.
The majority opinion, written by Justice Samuel Alito, stated that the dual sovereignty rule was actually “not an exception at all” because someone who violates both state and federal laws has committed two separate offenses.
The late Justice Ruth Bader Ginsburg argued in her dissent that the people are the ultimate sovereigns –- not the various levels of government. In his dissent, Justice Neil Gorsuch said 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.”
The implications of this ruling
The justices didn’t address what this ruling meant for a president’s pardon authority. However, legal experts have pointed out that by affirming dual sovereignty, the court also confirmed that while a president has the right to pardon people for federal crimes, he can’t pardon them for state crimes.
Many offenses – including a number of white collar crimes – are addressed in federal as well as state legal statutes. If you’re being investigated for or have been charged with a crime that violates both state and federal law, it’s essential to understand that you could face trial in two courts. An attorney with experience in both can provide valuable guidance and work to protect your rights.