Double Jeopardy, Dual Sovereignty and the Conundrum of Congressional Action

The Double Jeopardy Clause of the Fifth Amendment bars successive prosecutions of a defendant for the same offense with one major exception: if the prosecuting authorities are considered “separate sovereigns,” the defendant is subject to multiple prosecutions. This concept, known as the dual sovereignty doctrine, was addressed by the Supreme Court in Heath v. Alabama:

“The dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offenses.’”

In applying this doctrine, it must be ascertained whether the entities seeking successive prosecutions are “separate sovereigns,” a determination that “turns on whether the two entities draw their authority to punish the offender from distinct sources of power.” The method used by the Supreme Court to determine what constitutes a “distinct source of power,” however, has been the subject of recent criticism.

On June 9, 2016, the Supreme Court dealt a blow to Puerto Rico’s self-governing status with its ruling in Puerto Rico v. Sanchez Valle, in which it denied Puerto Rico the ability to try two defendants after a U.S. trial court dismissed the pending charges against them. Unlike tribal nations in the United States, the Court determined that Puerto Rico does not derive its prosecutorial power from a source independent of the U.S. Congress, thereby precluding the island from being considered a “separate sovereign.” Notwithstanding the fact that the island was designated a Commonwealth in 1950 and was allowed to write a constitution that was approved in 1952, the Court argued that by authorizing Puerto Rico to adopt a constitution, Congress was the ultimate source of Puerto Rico’s power to punish.  

The Court’s approach of looking back in history to trace an entity’s source of prosecutorial power to when it became independent poses problems when one considers entities whose independence was influenced by congressional action (or inaction). In his dissenting opinion in Puerto Rico v. Sanchez Valle, Justice Breyer examines the cases of the Philippines and American Indian tribes. The United States relinquished all claims to the sovereignty of the Philippines after the Philippines was granted full independence by Congress with the approval of the Treaty of Manila on July 4, 1946. While the power of the Philippines to prosecute offenders is undisputed today, the Philippines would presumably not be considered a “separate sovereign” under the test employed by the Court: by authorizing the Treaty of Manila, it was Congress that served as the source of the Philippines’s self-governing status and authority to enact criminal laws.  

Similarly, although it was established in United States v. Wheeler that American Indian tribes possess the authority to enact criminal laws that existed prior to the creation of the United States, the Court noted in Santa Clara Pueblo v. Martinez that Congress retains the plenary authority to limit tribes’ self-governing power. In his dissenting opinion in Puerto Rico v. Sanchez Valle, Justice Breyer argues that Congress’ decision not to act to restrict tribes’ prosecutorial power amounts to a decision to grant sovereignty to the tribes. In this regard, inaction on the part of the legislative branch establishes Congress’ position as the source of the tribes’ prosecutorial power, which effectively turns the ruling in United States v. Wheeler on its head.

The decision handed down by the Court in Puerto Rico v. Sanchez Valle prompted Puerto Rico to appeal to the United Nations concerning its political sovereignty, and the UN Special Committee on Decolonization was convened to address the issue on June 20, 2016. Several petitioners, including Maria de Lourdes Santiago of the Partido Independentista Puertorriqueño, emphasized the United States’ obligation to decolonize Puerto Rico, and a draft resolution was approved calling on the United States government to “expedite a process that would allow the people of Puerto Rico to exercise fully their right to self-determination and independence.” Defining separate sovereignty for the purposes of applying the dual sovereignty doctrine poses a difficult constitutional issue that is unlikely to disappear from court dockets in the near future.