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Supreme Court to Reconsider Separate Sovereignties
By Bret Thurman
The Supreme Court’s decision to reconsider the separate sovereignties exception in Barrett v. United States could redefine the balance of power between state and federal prosecutions—reshaping double jeopardy protections for generations to come.
Following a private conference in February 2025, the Supremes agreed to consider Barrett vs. United States, a Second Circuit case that tests the limits of the separate sovereignties exception to the Double Jeopardy clause.
The announcement that the court had granted review in Barrett v. United States came as part of a list of orders released from the justices’ private conference on Friday, Feb. 28. Dwayne Barrett was convicted of Hobbs Act robbery and related charges. In Barrett, the justices agreed to decide whether the Fifth Amendment’s ban on double jeopardy prohibits sentencing him for two different crimes based on the same robbery.
Double Jeopardy and Separate Sovereignties: A Primer
At least in the Western world, the Double Jeopardy clause has a rich history going back to ancient Greece. In 355 B.C., Athenian statesman Demosthenes pronounced that “the law forbids the same man to be tried twice on the same issue.” The Romans picked up the rule, as did the English in the Common Law period.
For some reason, the protection never caught on in the East, neither in ancient (Babylon and Sumeria) or more modern (Muslim) times.
Here in the Land of the Free and the Home of the Brave, New Hampshire’s 1784 constitution was the first document to guarantee this right. Several other states quickly followed suit.
In the 1790s, James Madison’s original double jeopardy clause stated that “No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense.” Some people objected, claiming that the broad language prohibited retrials after criminal appeals.
Madison, who cared a lot about the constitution but very little about double jeopardy, quickly bowed to this pressure and backed a modified, abstruse version (nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb). Ever since, courts have struggled to define exactly what this provision means.
The Supreme Court carved out the separate sovereignties (dual sovereignty) exception in 1847’s Fox vs. Ohio. That case involved the federal and state prosecution of a woman who was convicted of passing a fake silver dollar. According to prosecutors, Fox violated state fraud laws and abridged on the federal government’s exclusive right to coin money.
The Justices reasoned that states and the federal government are separate and distinct. Therefore, parallel state and federal prosecutions are different “offenses” under the double jeopardy clause, and the decisions of one government on what to prosecute or not prosecute are not binding upon the other.
The Court put an exclamation point on Fox some thirty years later. In 1847’s United States v. Cruikshank, et al., the late great Morrison Waite, who presided over the Court during a very difficult period in American history, rather poetically wrote that “The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws.”
When Can I Use a Double Jeopardy Argument?
The first situation is easy. Simply stated, defendants cannot be tried twice for the same crime, or a substantially similar crime.
Drug possession isn’t substantially similar to drug trafficking, even if the two originate from the same criminal episode. Trafficking has elements that possession doesn’t have. Similarly, conspiring to commit a crime is different from committing a crime.
After that, things get complicated.
Implied Acquittals
Lesser-included offense charges (e.g. first-degree murder and second-degree murder) are very common. For example, after a second-degree murder trial which resulted in a guilty verdict, a witness may come forward with information about the defendant’s premeditation.
The implied acquittal doctrine states that a person convicted on the lesser charge can never again be tried on the greater charge.
Non-Final Judgments
These “judgements” include most mistials, verdicts set aside after a motion for new trial, reversals due to procedural errors, and sometimes, involuntary dismissals.
Oddly, if the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion.
Prosecutors may also appeal when a trial judge sets aside a jury verdict for conviction with a judgment notwithstanding verdict for the defendant. A successful appeal simply reinstates the jury’s verdict and therefore doesn’t place the defendant at risk of another trial.
Insufficient Evidence
We mentioned that procedural appeals don’t trigger the double jeopardy prohibition. However, if a court overturns a trial verdict for substantive reasons, specifically a lack of evidence, the state (or federal government) cannot retry the defendant.
The reasoning is simple. If the trial court ruled the evidence was insufficient, the double jeopardy clause would kick in. The appeals court substitutes for the trial court, in this case.
What about affirmative defenses, such as coercion, voluntary intoxication, statute of limitations, and entrapment? The law is uncertain on this point.
Fraud
A fraudulent trial is no trial at all. For example, in 1977, Chicago mobster Harry “Hook” Aleman the September 1972 death of William Logan. Nearly twenty years later, two persons in the Federal Witness Protection program confirmed that Aleman murdered Logan, and he then later bribed the trial judge to return an acquittal.
The Seventh Circuit ruled that Aleman was under no risk of conviction in the 1977 trial and upheld the sentence of 100 to 300 years in prison.
Risk is the key concept. If a defendant “fixes” a trial, the fix doesn’t necessarily guarantee an outcome. Even though the New England Patriots played with rigged equipment, they didn’t win all their home playoff games.
Multiple Punishments
Courts have the power to vacate or reduce sentences. They also have the power to augment sentences without running afoul of the Double Jeopardy clause. However, a court cannot revisit a case and impose the death penalty.
Insanity
This problem is interesting. Usually, a jury can decide that a defendant was “not guilty by reason of insanity” or “guilty but insane.” These two verdicts have vastly different meanings.
In 2012, Damien McElrath allegedly killed his mother and was charged with several offenses under Georgia law (malice murder, felony murder, and aggravated assault). On the malice murder charge, the jury returned a verdict of “not guilty by reason of insanity.” But on the other two, jurors ruled that McElrath was “guilty but mentally ill.”
The Supreme Court later agreed with McElrath that “NGBROI” was an acquittal that precluded his retrial on the malice murder charge.
So, if a client pleads guilty, pay very close attention to what s/he’s pleading guilty to. An arrangement with unsuspecting prosecutors may be in order.
Bret Thurman is a Dallas-based legal writer who practiced law in Texas for over twenty years. His writing focuses on criminal defense, family law, consumer bankruptcy, and personal injury. He obtained his B.A. in history from Baylor University and his J.D. from the University of Texas at Austin. Bret is also an award-winning screenwriter and father of four. He can be reached at Editor@LitigationConferences.com.
