NCJ Number
62096
Journal
Wake Forest Law Review Volume: 14 Issue: 4 Dated: (AUGUST 1978) Pages: 823-841
Date Published
1978
Length
19 pages
Annotation
CURRENT FEDERAL PROCEDURES FOR AVOIDING SUCCESSIVE STATE AND FEDERAL PROSECUTIONS FOR THE SAME OFFENSE IN RESPECT OF DOUBLE JEOPARDY RIGHTS ARE CRITIQUED.
Abstract
IN MAY 1959, THE JUSTICE DEPARTMENT ANNOUNCED A POLICY AGAINST SUCCESSIVE STATE-FEDERAL PROSECUTIONS. THIS POLICY, DENOMINATED BY THE U.S. SUPREME COURT AS THE PETITE POLICY, WAS DESIGNED TO MOLLIFY THE OPPRESSIVE NATURE OF MULTIPLE PROSECUTIONS AND AVOID NEEDLESS DUPLICATION OF STATE EFFORTS IN THE ADMINISTRATION OF THE CRIMINAL LAWS. UNDER THE TERMS OF THE POLICY, THE UNITED STATES ATTORNEYS ARE REQUIRED TO SEEK APPROVAL OF THE JUSTICE DEPARTMENT BEFORE INITIATING PROSECUTION AGAINST AN INDIVIDUAL PREVIOUSLY TRIED FOR THE SAME CONDUCT IN A STATE COURT. BECAUSE THE POLICY HAS NEVER ACHIEVED THE STATUS OF A REGULATION OR STATUTE, HOWEVER, THE DEFENDANT CANNOT CLAIM ITS BENEFITS. NOTWITHSTANDING APPLICABILITY, THE COURTS WILL NOT APPLY THE POLICY ABSENT ITS ASSERTION BY THE GOVERNMENT. THE STATED COURSE OF THE POLICY IS TO DECLINE FEDERAL PROSECUTION ONCE A STATE PROSECUTION HAS BEGUN FOR THE SAME OFFENSE; HOWEVER, THE JUSTICE DEPARTMENT HAS APPARENTLY ADOPTED A POSTURE OF INITIATING PROSECUTION AND AWAITING THE OUTCOME OF THE STATE TRIAL AND APPEAL. IF THE STATE PROSECUTION RESULTS IN CONVICTION, THE FEDERAL CHARGES CAN THEN BE DISMISSED. SEEKING DISMISSAL OF FEDERAL CHARGES AFTER A STATE PROSECUTION IS CONTRARY TO THE PURPOSE OF THE PETITE POLICY. FURTHERMORE, THE OVERTURNING OF A VALID CONVICTION IS QUESTIONABLE. THE SUPREME COURT, IN RINALDI V. UNITED STATES, HAS UPHELD THE PURPOSES OF THE PETITE POLICY BUT CONTINUED TO ENTRUST ITS APPLICATION TO THE EXECUTIVE BRANCH. THE CONSTITUTIONAL PROHIBITION AGAINST DOUBLE JEOPARDY IS NOT SO FRAGILE A GUARANTEE THAT ITS APPLICATION SHOULD BE ENTRUSTED TO THE DISCRETION OF COURTS RESPONSIBLE FOR INITIATING PROSECUTIONS. FOOTNOTES ARE PROVIDED. (RCB)