The recent talk about a possible federal prosecution of George Zimmerman reminds me that my colleague Stuart Banner recently filed a petition for certiorari challenging the “dual sovereignty” exception to the Double Jeopardy Clause. The case is Roach v. Missouri, and Stuart’s historical argument strikes me as quite powerful, though I should stress that I’m not an expert on the subject. (Orin also blogged about this petition a month ago.) Here’s the Introduction (paragraph breaks added):
At the time of the Founding, the common law protected criminal defendants from all successive prosecutions for a single offense, even by different sovereigns. The Framers intended to preserve this fundamental common law protection when they ratified the Fifth Amendment’s Double Jeopardy Clause.
In a series of decisions adopting the so-called dual sovereignty doctrine, which permits separate state and federal prosecutions for the same offense, the Court strayed from the Double Jeopardy Clause’s original meaning and reduced the protection it affords. In the decades since those decisions were handed down, the constitutional and practical underpinnings of the doctrine have eroded. The Double Jeopardy Clause, like many other fundamental criminal procedure rights, is now applicable to the states. And the exposure of criminal defendants to serial state and federal prosecutions has grown dramatically with the expansion of federal criminal jurisdiction.
This petition asks the Court to restore the original scope of the Double Jeopardy Clause and abrogate the dual sovereignty doctrine.
For more on the historical argument that the Double Jeopardy Clause was originally understood as “barr[ing] successive prosecutions, even by different sovereigns” (such as a state and the federal government, or two states, or even a foreign country and a state or federal government), see the petition, which is quite readable.