Double jeopardy question - infinite jurisdictions

Factual Questions
1

I know that double jeopardy has been debated and discussed ad nauseum, but I suspect there is a factual answer for my hypothetical below. (Yes, I know hypotheticals are stupid, but I’m looking for some feedback anyway.)

My understanding is that an individual can be tried twice for the same crime, once under state law and once under federal law, without violating the double jeopardy clause of the 5th amendment. The rational is that the federal and state levels are two sovereign entities, each entitled to its own jurisdiction. Therefore, double jeopardy does not occur even if the same crime is tried at both levels.

Now for the hypothetical: Suppose a state allows for the existence of another entity within its borders, and said entity has its own jurisdiction – something similar to a municipality. (Municipalities have their own charters and are self-governing within the state) A crime occurs within this third entity’s borders, and said crime is also punishable at the state and federal levels. By the same logic that allows one trial at state level and a second trial at the federal level, this third entity would be entitled to try an individual for a third time for said crime based on laws within its jurisdiction.

Now suppose there exists a fourth, fifth, etc. jurisdictions below the third one. By the same logic as above, these jurisdictions would also have a right to try an individual for said crime, effectively allowing for infinite trials for the same crime, just in different jurisdictions within the hierarchy.

I think that most people would agree that this hypothetical set of infinite (re)trials would violate the spirit of the 5th amendment.

So, if the above hypothetical scenario violates the double jeopardy clause of the 5th amendment, then why don’t federal/state (re)trials for the same offence violate the double jeopardy clause?

(Am I wrong that a third jurisdiction could even exist below the state level? If that’s the case, then my hypothetical scenario cannot actually occur, and my question will have been answered.)

I didn’t intend for this to be a debate, but if it goes that way the mods can feel free to move it.

2

Here’s the problem with your hypo:

That doesn’t make the city sovereign. The city owes its existence and power to the state. The city does not have independent sovereign existence. It does not elect senators to represent it in Washington, cannot effectively ratify amendments to the US Constitution, and is never invited to Sovereign Playground Day.

So, yes.

The one exception might be Indian reservations, which are NOT a creation of the state and which in some circumstances share sovereignty with the feds. More details on that if anyone’s interested.

3

Also, the jurisdiction has to have the authority to create laws about certain crimes and their punishment. A city, for example, can create bylaws about building standards, safety and comfort issues, etc. but cannot create its own laws regarding murder, kidnap, etc.

Being from Canada, I have to ask - what is the divion of powers wrt to US federal and state laws. Much of the time I hear it seems the feds jump through hoops to make crimes valid under the cosntitution’s assigned powers - ie. transporting stolen goods across state lines, robbing federal instutions like chartered banks, violation of civil rights (rather than murder), etc.

I know kidnapping was a special case because of Lindbergh, but what justification keeps it a federal crime?

4

The kidnapper crossing state lines with his victim makes it a federal crime:

18 USC § 1201, Kidnapping:

Other conditions include " within the special maritime and territorial jurisdiction of the United States," and “within the special aircraft jurisdiction of the United States.”

States also have kidnapping laws, and a person that kidnaps a victim and crosses state line could be convicted of both the state and the federal offense without offending double jeopardy.

5

Even if the city could create its own murder law, that doesn’t make it sovereign. A city that had the power to criminalize murder would only be doing so under a grant of power from the state, and so the ultimate sovereign is still the state.

But the state does not criminalize murder under a grant of power from the federal goivernment. The state has independent general police power.

This is why I hinted above that Indian tribal power is an exception: Indian tribes typically have sovereign power to punish offenses concurrently with the federal government, and that power does not derive from a federal grant of power, but rather is a function of their separate sovereign existence.

6

Or even multiple states.

7

This would make a good Cecil column subject or Staff Report.

8

[nitpick]
The correct spelling is ad nauseam. Ad nauseum is commonly seen, but it’s incorrect.
[/nitpick]

Carry on.

9

Maybe, but highly dependent on the particular state statutes. At common law, kidnapping is the unlawful taking and asportation of a person. A state with those elements would create a problem for what you said: while the asportation might be a continuing element, the taking didn’t occur in the second state. Of course, there would be other charges that would apply, such as unlawful restraint, and of course if the second state allowed restraint as an element of kidnapping, you’d be fine too.

10

Yeah, I should have added a qualifier like “possibly” in there.

11

In the United States, a state can grant a city the power to enact local ordinances against criminal activity. For example, Chicago has an ordinance against solicitation for prostitution in a public place in addition to the Illinois statute prohibiting solicitation of a sexual act. While I can find no local ordinance specifically against murder or kidnap, that would certainly fall under the local ordinance against disorderly conduct. Browsing through the Chicago ordinances, I also see ordinances against inciting riots, defacing cemeteries, hate crimes, houses of prostitution, forgery, gambling, illegal use of weapons, and many other offenses. I am relatively certain that anyone found violating one of these ordinances could also be found guilty of an analogous offense under state law.

12

I think you are right re: cities.

Cities and counties in the US are devolved governments. I believe also that Territories have this status. So, the New York state legislature could pass a law tomorrow dissolving the City of New York, all its elected offices, the NYPD, the NYFD, all public schools, city works, everything, and put everything under State jurisdiction, or carve and join as they please, possibly taking Brooklyn and Queens (severing them from the rest of the City) and gluing them to Nassau County and the rest of Long Island and making the whole thing into the new City of Long Island.

But, the US Congress cannot pass a law dissolving the State of New York and making it into a directly governed territory, or make it part of New Jersey, without the permission of the NY legislature. Gluing it to New Jersey would also require NJ’s permission. (US Constitution, Article IV, Section 3)

13

No. As I explained in Post #5, even if the city could create its own murder law, that doesn’t make it sovereign. A city that had the power to criminalize murder would only be doing so under a grant of power from the state, and so the ultimate sovereign is still the state.

A conviction for an offense under city law would bar a subsequent prosecution under state law for an identical offense. As defined in Blockberger, two offenses are different in double jeopardy analysis only if each requires an element that the other does not.

14

Thank you for the replies so far. Things are making a bit more sense,

As you say, the city (or any other state subdivision) owes its powers to the state. Is it possible for a state to establish and acknowledge sovereignity of it’s subdivisions? Or is the explicitly forbidden?

For instance, could a state establish a microcosm within itself which is analogous to the federal/state relationship? What if the population of a state attempted to perform such action by modifying its state constitution?

I understand that such sub-state entities may not be recognized by the federal government, but it could still lead to the hypothetical I proposed. I suppose the federal courts would step in and squash any convictions stemming from multi-jeopardy trials at the state/sub-state levels, right?

Admittedly, it looked wrong to me, but spell check didn’t offer a proper correction. Then I googled it and still managed to screw it up. :smack:

Edit: I see Bricker may have answered my question already.

15

States and the federal government are the only recognized sovereigns in our system. A state that tried the scheme you mention would find its second prosecutions overturned by federal courts. The law against double jeopardy is constitutional in dimension, and is thus the supreme law of the land.

16

How identical to constitute double jeopardy - i.e. the state and city prostitution ordinances?

(IANAL, but (I think) in Canada criminal matters are federal jurisdiction; provinces can enact laws for lesser crimes, but cities cannot create bylaws that result in jail time. And of course, provinces are creatures of the federal government, cities are creatures of the province, so unless it violates the constitution’s allocation of powers, the feds can ride all over the provinces and cities…)

17

md2000, this is not correct. Provinces are independent of the federal government, with their existence and their powers set out by the Constitution. Parliament cannot do away with the provinces, nor change their sovereign powers. They are not creatures of the federal government, and the federal government cannot “ride all over the provinces and cities.”

18

As I said, two offenses are different in double jeopardy analysis only if each requires an element that the other does not.

What does that mean?

Let’s imagine there’s a state law called “Solicitation of prostitution.” It forbids any person to offer money or any other thing of value to another person in exchange for any sexual act, or any person to offer to perform any sexual service for money or any thing of value.

And there’s a city ordinance called “Selling of sexual services.” It forbids any person from selling or offering to sell sexual services for money or its equivalent.

Those offenses have different names, but they are identical for the purposes of double jeopardy analysis, because the same elements are found in each crime. This is called the Blockburger test, after the seminal case on the subject.

If one crime has additional elements, then the crime with fewer elements is what’s known as a “lesser included offense” of the other. Conviction of one bars subsequent prosecution for the other.

Interestingly enough, acquittal of an offense may not bar subsequent prosecution for all lesser-included offenses. This is complicated to explain, but I’ll lay it out if anyone’s interested.

19

City Ordinance:

State Statute:

Since the city ordinance requires that the act be committed “in the public ways…” that means that violation of the state statute would be a lesser included offense?

Yes! Please!

20

Wouldn’t any any defendant be able to enter a plea of “autrefois convict” or “autrefois acquit” if they had already been tried for the offence under another jurisdiction. IANAL but my understanding was that double jeopardy applies even when there was a trial in another jurisdiction and one of the primary purposes of the pleas “autrefois convict” and “autrefois acquit” were for just such an eventuality.