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 United States jurisdiction
are states. This article explores some of the situations involving Double
Jeopardy in territories and possessions of the United 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 United States have been overlooked.
One of the most apparent cases of overlooking a non-state United 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, Washington, DC had a larger population than eleven of
the states. [FN2] Although the Constitution of the United 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 United 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 United States.
Considering that the district spoken of is the District of Columbia, Washington,
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
Washington, DC in the Electoral College, thereby granting citizens of Washington, DC
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 Washington, DC
do have the right to vote, Washington, DC is not a state. In August, 1978 a proposed
Amendment to the United States Constitution which would have permitted Washington,
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: Washington, DC, Guam, the
United States Virgin Islands and American Samoa. The resident commissioner is from
Puerto 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 United States in the United 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 District of Columbia and federal governments. [FN4]
So, Washington, DC 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 District 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 Puerto 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 Puerto 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 Puerto Rico. So, the Eleventh Circuit
concluded that Puerto 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 Puerto Rico is a separate
sovereign for application of Double Jeopardy. [FN6] It should be mentioned that the
jurisdiction of the First Circuit is: Maine, New Hampshire, Massachusetts, Rhode Island
and Puerto Rico. The jurisdiction of the Eleventh Circuit is: Alabama, Florida and
Georgia.
As to some other non-state jurisdictions, the Virgin Islands have been held not to
be a separate sovereign. [FN7] Guam has been held not to be a separate sovereign. [FN
8] However, the Northern 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 United States is without a uniform answer.
American Samoa has a rather unusual situation concerning its courts. Unlike the
other possessions and territories of the United States, American 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 United 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 United 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 S. Ct. 433 (1985). In this case, Mr. Heath, who lived in Alabama, but just across the state line from Georgia, hired two men to kill his wife. Part of the planning of the murder took place in Georgia and part took place in Alabama. Georgia allowed Mr. Heath to plead guilty to “malice murder”, for which he received a life sentence. Alabama tried him and gave him the death penalty. Mr. Heath was executed by the State of Alabama in March, 1992. Georgia and Alabama are separate sovereigns, so two prosecutions and punishments can go forward for the same murder without violating Double Jeopardy.
[FN2] United States Census, 1960.
[FN3] United States Constitution, Article One, Section Eight, Clause Seventeen.
[FN4] U.S. v. Sumler, 136 F.3d 188, 191 (D.C. Cir. 1998).
[FN5] U.S. v. Sanchez, 992 F.2d 1143, 1151-1152 (11th Cir. 1993).
[FN6] U.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] U.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 Gonzaga University Law School career services information, posting number 3417, posted September 18, 2006. Last accessed on October 13, 2006.