Non State Sovereignty

Non State Sovereignty

When is a Non-State United States Jurisdiction a Separate Sovereign?

John P. Gray [FNa]

In determining when the Double Jeopardy clause of the Fifth Amendment of the

United States Constitution applies, consideration of whether a jurisdiction is a separate

sovereign is significant. The Double Jeopardy clause prohibits a second prosecution by

the same sovereign for the same criminal offense. Although the states are considered

separate sovereigns from each other [FN1], not all areas within country-regionplaceUnited States jurisdiction

are states. This article explores some of the situations involving Double

Jeopardy in territories and possessions of the country-regionplaceUnited States. When one of these

jurisdictions is not regarded as a separate sovereign from the federal government, a

second trial for the same criminal activities violates the Double Jeopardy clause of the

Fifth Amendment. If one of these jurisdictions is regarded as a separate sovereign, a

second trial for the same acts does not violate the Double Jeopardy clause.

Sometimes the non-state jurisdictions of the country-regionplaceUnited States have been overlooked.

One of the most apparent cases of overlooking a non-state placecountry-regionUnited States jurisdiction

relates to the Electoral College. While it may be argued that those who wrote the

Constitution may have conceived of the nation's capital as a government center but not a

population center, in 1960, CityplaceWashington, StateDC had a larger population than eleven of

the states. [FN2] Although the Constitution of the placecountry-regionUnited States authorizes, “Congress

to exercise exclusive legislation in all cases whatsoever, over such district (not

exceeding ten miles square) as may, be cession of particular States, and the acceptance of

Congress, become the seat of government of the placecountry-regionUnited States…” [FN3], no original

Constitutional provision was made for the citizen residents of that district to participate in

the process to elect the President of the country-regionplaceUnited States.

Considering that the district spoken of is the StateDistrict of Columbia, CityStateplaceWashington,

DC, it is particularly ironic that for many years those who lived in the nation's capital

could not vote for the official occupant of the White House. The Twenty-Third

Amendment to the United States Constitution corrected this situation. It included

CityWashington, StateDC in the Electoral College, thereby granting citizens of CityplaceWashington, StateDC

the right to vote. This Amendment was proposed by Congress on June 17, 1960 and was

ratified by the states on March 29, 1961. Although citizen residents of CityplaceWashington, StateDC

do have the right to vote, CityplaceWashington, StateDC is not a state. In August, 1978 a proposed

Amendment to the United States Constitution which would have permitted placeStateWashington,

DC to have representation in the United States Senate and the United States House of

Representatives as it would have it if were a state, failed to be ratified by the states.

Currently, in addition to the 435 regular members of the United States House of

Representatives, four non-voting delegates and one resident commissioner participate in

many House activities. These four delegates are from: CityWashington, StateDC, placeGuam, the

country-regionUnited States Virgin Islands and StateplaceAmerican Samoa. The resident commissioner is from

placePuerto Rico. These five individuals do not vote on legislation, but do function in many

ways to advocate for their respective jurisdictions. There are no delegates or resident

commissioners of the territories or possessions of the country-regionUnited States in the country-regionplaceUnited States

Senate.

The United States Court of Appeals for the District of Columbia Circuit has

indicated that the Double Jeopardy clause does apply to protect defendants from

successive prosecutions by the StateplaceDistrict of Columbia and federal governments. [FN4]

So, placeCityWashington, StateDC is not a separate sovereign from the federal government. So, a trial

in the federal courts would prohibit a second trial for the same criminal acts in a local

court in the StateplaceDistrict of Columbia.

However, there is not uniformity as to the consideration of a non-state United

States jurisdiction for Double Jeopardy purposes. In 1993, the United States Court of

Appeals for the Eleventh Circuit contended that placePuerto Rico is not a separate sovereign

with respect to the federal government for Double Jeopardy purposes. [FN5] The

rationale of the Eleventh Circuit is that placePuerto Rico's power to govern itself derives from

an act of Congress. Although it is not likely to do so, Congress could repeal the

legislation permitting self-government in placePuerto Rico. So, the Eleventh Circuit

concluded that placePuerto Rico is not a separate sovereign from the federal government for

Double Jeopardy purposes. However, in 1995, the United States Court of Appeals for the

First Circuit (which includes Puerto Rico), held that placePuerto Rico is a separate

sovereign for application of Double Jeopardy. [FN6] It should be mentioned that the

jurisdiction of the First Circuit is: StateMaine, StateNew Hampshire, StateMassachusetts, StateplaceRhode Island

and placePuerto Rico. The jurisdiction of the Eleventh Circuit is: StateAlabama, StateplaceFlorida and

country-regionplaceGeorgia.

As to some other non-state jurisdictions, the placeVirgin Islands have been held not to

be a separate sovereign. [FN7] placeGuam has been held not to be a separate sovereign. [FN

8] However, the placeNorthern Mariana Islands have been held to be a separate sovereign

from the federal government. [FN9] The issue as to when Double Jeopardy applies as to

the territories and possessions of the country-regionplaceUnited States is without a uniform answer.

placeStateAmerican Samoa has a rather unusual situation concerning its courts. Unlike the

other possessions and territories of the country-regionUnited States, StateplaceAmerican Samoa has no United

States District Court. The High Court of American Samoa, composed of two justices

who are appointed by the Secretary of the Interior of the country-regionplaceUnited States, is the territory's

only court of general jurisdiction. The two justices have jurisdiction much like state

court judges in the states, but also have jurisdiction very similar to federal court judges.

When cases are appealed, the justice of the High Court of American Samoa who was not

the trial judge sits with two federal judges who are usually borrowed on a temporary

basis from the Ninth Federal Circuit to review the case on appeal. The two federal judges

are given the titles of Acting Associate Justices while deciding appeals from the High

Court of American Samoa. [FN10]

The issue of when Double Jeopardy applies is not always as simple as it might

first appear. This article has just presented some basic introductory information about the

diverse application of Double Jeopardy in some non-state country-regionplaceUnited States jurisdictions.

There is much more that can be gleaned from a study of the literature in this area of law.

Double Jeopardy means much more than the simplistic statement that a person cannot be

tried twice for the same criminal acts. Depending upon the location of either the act or

the result of the act, he or she can sometimes be tried in two different court systems

without violating the Double Jeopardy clause.

Notes:

[FNa] John P. Gray, Associate Professor of Legal Studies and Criminal Justice, Faulkner University, Montgomery, Alabama. LL.M. (tax) University of Alabama School of Law, J.D., Thomas Goode Jones School of Law, M.B.A., Samford University, M.A. in Religion, Lipscomb University, B.A., Heritage Christian University, B.S., University of North Alabama.

[FN1] See Heath v. State, 106 placeS. Ct. 433 (1985). In this case, Mr. Heath, who lived in StateAlabama, but just across the state line from placecountry-regionGeorgia, hired two men to kill his wife. Part of the planning of the murder took place in country-regionGeorgia and part took place in placeStateAlabama. country-regionplaceGeorgia allowed Mr. Heath to plead guilty to “malice murder”, for which he received a life sentence. placeStateAlabama tried him and gave him the death penalty. Mr. Heath was executed by the State of placeStateAlabama in March, 1992. country-regionGeorgia and StateplaceAlabama are separate sovereigns, so two prosecutions and punishments can go forward for the same murder without violating Double Jeopardy.

[FN2] country-regionplaceUnited States Census, 1960.

[FN3] country-regionplaceUnited States Constitution, Article One, Section Eight, Clause Seventeen.

[FN4] country-regionplaceU.S. v. Sumler, 136 F.3d 188, 191 (D.C. Cir. 1998).

[FN5] country-regionplaceU.S. v. Sanchez, 992 F.2d 1143, 1151-1152 (11th Cir. 1993).

[FN6] country-regionplaceU.S. v. Perez-Perez, 72 F.3d 224, 226 (1st Cir. 1995). For a more complete discussion see, U.S. v. Lopez Andino, 831 F.2d 1164 (1st Cir. 1987).

[FN7] country-regionplaceU.S. v. Hodge, 211 F.3d 74, 78 (3rd Cir. 2000).

[FN8] Nigiranigas v. Sanchez, 858 F.2d 1368, 1371 (9th Cir. 1988).

[FN9] Nigiranigas v. Sanchez, 858 F.2d 1368, 1371 (9th Cir. 1988). See also, Northern Mariana Islands v. Atalig, 723 F.2d 682, 691 n.28 (9th Cir. 1984).

[FN10] Most of the information in this section came from an advertisement for judicial law clerks from the High Court of American Samoa, Chief Justice Michael Kruse and Associate Justice Lyle L. Richmond, as located in the placePlaceNameGonzaga PlaceTypeUniversity PlaceNameLaw PlaceTypeSchool career services information, posting number 3417, posted September 18, 2006. Last accessed on October 13, 2006.