NCJ Number
156361
Journal
Criminal Law Bulletin Volume: 31 Issue: 4 Dated: (July-August 1995) Pages: 291-304
Date Published
1995
Length
14 pages
Annotation
This analysis of the dual sovereign exception to the double jeopardy clause concludes that this exception is a relatively recent development and should be abandoned because it allows government officials, who may have political motivations, to substitute their judgment for that of independent jurors and to subject an individual to another trial to reduce mistakes of a previous trial.
Abstract
The dual sovereign exception created by the U.S. Supreme Court more than 30 years ago in Bartkus v. Illinois has no legal or historical basis. However, double prosecutions of the same person for the same act have since become commonplace. The Rodney King beating and trials intensified the debate on this issue. Those who would normally oppose such a breach of a fundamental constitutional guarantee have endorsed the practice in civil rights cases to correct perceived unjust verdicts in prior proceedings. However, the Bartkus decision relegates the principles it embodies to a second-class constitutional status. It is unwise and improper to use a fiction, coupled with dubious assumptions about federalism, to undermine one of the crucial provisions of centuries of development in criminal jurisprudence. The concerns of federalism and the concerns of critics in civil rights cases can be adequately addressed without relinquishing a basic right guaranteed for centuries. Footnotes