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11 Wm. & Mary L. Rev. 946 (1969-1970)
Double Jeopardy and Dual Sovereignty: A Critical Analysis

handle is hein.journals/wmlr11 and id is 960 raw text is: NOTES DOUBLE JEOPARDY AND DUAL SOVEREIGNTY: A CRITICAL ANALYSIS The fifth amendment to the United States Constitution reflects the deeply rooted fear and abhorrence of a governmental power which allows an individual to be subjected to multiple prosecution for the same offense. It provides: No person . . . shall . . . be subject for the same offence to be twice put in jeopardy of life or limb ....' This amendment encompasses both the practice of the common law2 and of the international law3 in allowing the plea of autrefoits acquit, or former acquittal, when a defendant had been tried previously in another jurisdiction. Yet in 1959, the Supreme Court in Bartkus v. llinois and Abbate v. United States5 developed a rule that the Con- stitution does not prevent a federal or state reprosecution of an indi- vidual for an offense arising out of the same act. This was done, with- out denying the abhorrence of multiple prosecutions by our system, because a majority of the Court felt that the appropriate function of our federal system requires the application of a dual sovereignty princi- ple. The rationale of the dual sovereignty principle being that because the laws of both state and the federal governments, as two sovereigns, were applicable, the same act produced two offenses, and therefore an individual could not be placed in jeopardy for the same offense. The following discussion will focus upon the validity of the Bartkus and Abbate rationale by considering the historical perspective of the problem, the weakness of the arguments presented in its defense, and 1. U. S. CoNsT. amend. V. 2. See, e.g., Fisher, Double Jeopardy, Two Sovereignties, and the Intruding Constitu- tion, 28 U. Cmn. L. Rnv. 591 (1961); Grant, Successive Prosecutions by State and Nation: Common Law and British Empire Comparisons, 4 U.C.LA. Rav. 1 (1956); Harrison, Federalism and Double Jeopardy: A Study in the Frustration of Human Rights, 17 U. MiAmi L. REv. 306 (1963). 3. Franck, An International Lawyer Looks at the Bartkus Rule, 34 N.Y.U. L. REv. 1096 (1959). The Supreme Court accepted this rule in United States v. Furlong, 18 U. S. (5 Wheat.) 184, 197 (1820) in dealing with a prosecution for piracy. 4. 359 U. S. 121 (1959). 5. 359 U. S. 187 (1959). 9461