Americans grow up learning as citizens we are protected from double prosecutions (or double jeopardy) for the same crimes. It says so in our Constitution. However, some states (like Missouri) skirt this prohibition by using the “Dual Sovereignty Doctrine” and proceed with second prosecutions. Below are some information points about this practice.
* The Dual Sovereignty Doctrine stems from a clause in the 10th Amendment which says states have the right to pass and enforce their own laws. Abraham Lincoln, President at the time, boldly voiced his concern that states could use the Dual Sovereignty clause to harm citizens’ rights.
* Half of all states do not use the Dual Sovereignty Doctrine or have laws actually forbidding its practice.
* Most counties in Missouri do not use Dual Sovereignty to convict for a second time.
* Dual Sovereignty is constitutionally uncomfortable. Most people don’t know it is happening and don’t even think that it can. Few will say this isn’t a violation of double jeopardy protections.
* Per the “Petite Policy” adopted by the United States Attorney General’s Office, the federal government itself does not use this practice after a state conviction of the same crime. The federal system recognizes it is not Constitutionally sound.
* Across the country (and even in Missouri), many circuit court and higher judges do not agree with the use of Dual Sovereignty (see State of Missouri v. Roach, 2012). Almost all defense attorneys disagree with its use as well as many prosecutors who refuse to use the doctrine to achieve a second conviction.
* Some overzealous prosecutors use this practice to increase their conviction rates or to make a name for themselves. This happens at the taxpayer’s expense (see State of Missouri v. Ivory, 1978; State of Missouri v. Giammanco, 2008; and State of Missouri v. Roach, 2012).
* Double convictions put costly strains on the courts, jails, and prison system in Missouri. The defendant has already been convicted and sentenced by the federal government. Why fill up our court systems (and spend taxpayer money) for a second prosecution, trial, plea bargain, and prison sentence?
* Missouri taxpayers are paying to house what should be federal prisoners, often times for decades. In almost every Missouri case involving the use of Dual Sovereignty, Missouri is the arresting party and primary custodian. Missourians pay the bill for both sentences. The convicted never sees a federal prison.
* The dissenting opinion written by the appellate judges in the State of Missouri v. Roach case concluded that the courts are bound by current law and that relief can only be found in the legislature. The legislature makes the laws for the states, and legislative reform is the only way this unfair practice can be reversed.
As citizens, we must take the steps to bring about sensible reform in our state and nation. Change starts with you.