I was thinking about double jeopardy yesterday. Not the Trebek kind, though that is my favorite tv show. Instead, I was thinking about the somewhat enigmatic statement in the Fifth Amendment to the U.S. Constitution that no person “be subject for the same offence to be twice put in jeopardy of life or limb.” My musings were prompted by yesterday’s news that New York Attorney General Eric Schneiderman has asked New York’s legislature to amend the state’s double jeopardy law to ensure that state prosecutors can go after persons whose conduct violates both federal and state law but who may be pardoned by the President after being prosecuted for federal crimes. I’ll provide some context below, but I don’t want to leave you in suspense about my view: I’m troubled by this.
Backing up, the Double Jeopardy Clause of the U.S. Constitution prevents people from facing criminal liability for the same crime more than once—double jeopardy. As you might expect, there’s a substantial body of case law explaining what counts as the same crime, what counts as jeopardy, and when jeopardy attaches. There’s a longstanding—and scary if you’re a defendant—aspect of this doctrine called the dual sovereignty (or separate sovereignty) doctrine. According to the Supreme Court, the U.S. Constitution does not bar two or more states, or the state and federal government, from prosecuting a defendant for the same conduct, if that conduct violates the law of each jurisdiction. For example, if criminal fraud could be punished by either Alabama or the federal government, both jurisdictions could prosecute someone for the same fraud consistent with the Double Jeopardy Clause.
As you might imagine, this doctrine has prompted substantial criticism from academics, advocacy groups, and even some current Justices. Justice Ginsburg, joined by Justice Thomas, authored a concurring opinion calling for reconsideration of the dual sovereignty doctrine in a 2016 case.
So what’s the deal with New York? Well, while the U.S. Constitution sets the floor for constitutional rights, individual states are free to afford greater protections for individual liberties. New York is one of many states that does so in the double jeopardy context, providing by statute that absent certain exceptions, New York may not prosecute someone for a state crime based on the same conduct that already resulted in a federal prosecution to which jeopardy attaches. In other words, New York does not generally use the latitude that the dual sovereignty doctrine gives it to go after people for the same conduct that the feds have already prosecuted.
Attorney General Schneiderman wants the legislature to narrow that protection in a fairly discrete way—by ensuring that a presidential pardon that cuts off federal punishment not allow a defendant to escape justice if the criminal conduct also violates New York law. His letter makes clear that he is motivated by concern that the President might pardon certain persons in a way that would impede criminal investigations. In other words, Schneiderman is worried that a hypothetical pardon of someone like Paul Manafort or Michael Cohen could, depending on the timing, prevent New York authorities from prosecuting those persons for the same conduct and allow them to avoid punishment altogether.
And I think that’s what worries me. There’s something unsettling about an attorney general encouraging a change—even a narrowly drawn one—in civil liberties protections based on a transparent desire to be able to prosecute particular people who might be pardoned by a particular President. I want to be clear: the dual sovereignty doctrine is not a novel theory, and the Supreme Court has been applying it for a century. Reasonable people can disagree on whether it’s a correct reading of the Constitution, and on whether states should provide greater protections to criminal defendants than the Supreme Court requires. I’m also not contending that Schneiderman’s proposal would be an unlawful bill of attainder—the change would apply generally whenever a presidential pardon would otherwise prevent any punishment for wrongdoing, not just to persons caught up in the Russia investigation who might be pardoned by the current President. But calibrating a proposed change in the criminal code to reach specific potential defendants seems to transgress the spirit of a constitutional framework designed in part to prevent legislatures from singling out specific individuals for punishment.
Whatever your views on the Double Jeopardy Clause, I think we can all agree that the theory articulated by Ashley Judd and Tommy Lee Jones in Double Jeopardy is totally insane and doesn’t remotely resemble the actual law.