On June 28, 2013, Constitutional Accountability Center filed an amicus curiae brief in the Supreme Court in support of the Petition for a Writ of Certiorari in Edward Roach v. State of Missouri, a case challenging the long-standing dual sovereignty exception to the Fifth Amendment’s Double Jeopardy Clause. Under this judicially-created exception to the Constitution, an individual may be subjected to successive federal and state prosecutions for the same offense. In our brief, CAC demonstrates that the dual sovereignty doctrine is inconsistent with the Constitution’s text and history, and we urge the Court to review the case in order to correct this significant error of constitutional interpretation.

In 2010, Edward Roach was charged separately by the state of Missouri and the federal government for the same alleged criminal conduct (i.e., being a felon in possession of a firearm). After Mr. Roach pleaded guilty to the federal charge, the state trial court dismissed the state charge pursuant to the Fifth Amendment’s Double Jeopardy Clause. The Missouri Court of Appeals subsequently reversed the trial court’s decision on the basis of the dual sovereignty doctrine.

As CAC’s brief demonstrates, the text and history of the Double Jeopardy Clause establish that the Framers of the Bill of Rights viewed its prohibition on successive prosecutions as an essential protection of individual liberty and an important tool in guarding against governmental overreach and harassment. The dual sovereignty doctrine plainly undermines that protection, especially in an age of expansive federal criminal law and significant federal-state cooperation in criminal law enforcement.

Moreover, since the Supreme Court last meaningfully considered the issue, the Double Jeopardy Clause has been incorporated into the Fourteenth Amendment as a prohibition against the states. As CAC’s brief shows, incorporation undermines whatever basis may once have existed for the dual sovereignty doctrine. Significantly, the Fourteenth Amendment’s emphasis on protecting individual rights against all governmental action makes clear that the Double Jeopardy Clause protects a fundamental individual right that is undermined whenever successive prosecutions are allowed, even if by different sovereigns.

On October 7, 2013, the Supreme Court denied certiorari in this case.