The Fifth Amendment to the United States Constitution gives criminal defendants a litany of rights. The provision that we're going to look at today is what called the Double Jeopardy provision, which provides that no person may, for the same offense, be “twice put in jeopardy of life or limb.” The “double jeopardy” provision means that no person shall have to go to trial, be found guilty or not guilty, and then face another trial. Once a trial is conducted, regardless of the verdict, that's it.

However, there's also something called the “dual sovereignty” doctrine. This tests whether two political entities are separate sovereigns for double jeopardy purposes. If they're separate sovereigns, such as the state and the federal government, then the one can put someone to trial and the other could then try him on the same facts and the same circumstances and get a conviction. Supreme Court precedent has held for a very long time that the state and the federal governments are separate sovereigns for double jeopardy purposes in the same way that the US government is a separate sovereign from that of another country. Someone could be tried under one sovereign and thereafter retried by a separate sovereign and that would not violate the double jeopardy provision.

This happened in the Rodney King case back in the early 1990s, when four Los Angeles police officers were initially acquitted in state court of assaulting Rodney King, but were later tried and convicted on federal civil rights charges. It happened again to Lemrick Nelson, who stabbed Yankel Rosenbaum during the Crown Heights riots in Brooklyn, in 1991. Though acquitted in state court, he was later convicted in federal court on civil rights charges, and served a ten-year sentence.

An interesting sidelight had never been decided until recently was whether Puerto Rico constituted a separate sovereign from the United States government. This is because Puerto Rico is not a state; but rather a US territory. To understand this we want to get a little bit of background.

                                        In 1898, Spain ceded Puerto Rico to the United States following the Spanish-American War. In 1950, Congress enacted Public Law 600, which authorized the island’s people to organize a government pursuant to a constitution of their own adoption. Thereafter, Puerto Rico adopted a constitution and were self-governing.

Puerto Rico v. Sanchez-Valle 12 S. Ct. 1863 (2016) started when the commonwealth of Puerto Rico enacted the Puerto Rico Arms Act of 2000, which regulated firearm sales on the island. In 2008, commonwealth prosecutors charged Luis Sanchez-Valle and Jamie Gomez-Vasquez with violating the Act's prohibition against selling firearms without permits. With those charges pending, federal grand juries also indicted them on federal laws based on the same transactions. Both Sanchez-Valle and Gomez-Vasquez pleaded guilty to the federal charges because they were much more lenient than the Puerto Rican laws. They then moved to dismiss the commonwealth’s charges, arguing that successive prosecutions on like charges were unconstitutional on double jeopardy grounds.

                                        On eventual appeal, the Supreme Court of Puerto Rico agreed, indicating that Puerto Rico is not a federal state. Therefore, it constitutes part of the federal government and, as such, the same sovereign as the federal government. Therefore, therefore it violates double jeopardy try them both in federal court and in Puerto Rican court. The US Supreme Court affirmed the holding of the supreme court of Puerto Rico.

Justice Kagan wrote for the six-justice majority and held that the double jeopardy clause bars the federal government in Puerto Rico from duplicating charged brought by the commonwealth, essentially ruling that Puerto Rico is NOT a separate sovereign from the federal government.

Justice Kagan began her analysis with the summary that talked about the fifth amendment’s dual sovereignty exception. Although she indicated that the double jeopardy clause protects a defendant from two prosecutions for the same offense, the dual sovereign provision allows two prosecutions if brought by different sovereigns.

                                        Justice Kagan's analysis looked at the historical roots of this doctrine and held that the doctrine is supported by the “deepest wellsprings of prosecutorial authority” - authority that precedes the existence of federal power itself. Within that framework, the court determined that the states and Indian tribes qualified as separate and distinct sovereigns from the federal government. On the other hand, municipalities and US territories, including Puerto Rico itself, do not qualify.

Justice Kagan conceded that Puerto Rico transformed into a new kind of political entity by virtue of Public Law 600 and Puerto Rico’s subsequent adoption of its own constitution. Because of that, it took on characteristics of a state. Still, the dual sovereign doctrine, the Court held, focuses not merely on the fact of self-rule, but on where it came from. Because the roots of Puerto Rico's power to prosecute lie in federal power, the entities are the same. The doctrine required the court to go beyond the immediate, or intermediate locus of power, to the ultimate source. While Puerto Rico self-governed to an extent, it still governed itself only as an extension of federal power.

                                        Although joining Justice Kagan's majority, Justice Ginsberg filed a concurrence to question of the dual sovereignty doctrine itself. Justice Ginsburg believes that because states and the federal government are “kindred systems” and “part of one whole.” Therefore, allowing both the states and the federal government to prosecute based on the same facts is “inconsistent with the spirit” of the Double Jeopardy clause. Justice Thomas also wrote a short separate opinion just to note his disagreement with the court's treatment of Indian tribes in its double jeopardy analysis.

Justices Breyer and Sotomayor dissented. Justice Breyer’s opinion, disputed the majority’s holding that required the court to look back to the furthest source of power. In his view, the doctrine directed the court to trace the source of power to a time when a previously dependent entity became sufficiently independent to constitute a sovereign. According to Justice Breyer, public law 600 and the creation and adoption of the commonwealth's constitution shifted the source of Puerto Rican criminal law from congress to Puerto Rico itself, its people and its constitution. Therefore, Puerto Rico should be considered a separate sovereign for double jeopardy purposes.

Under the majority (and thus the Court’s) holding, Puerto Rico cannot convict someone of the same crime if they've already been convicted under federal law, or alternatively, if someone is convicted or acquitted in Puerto Rico, the federal government can't thereafter pick up the defendant and retry them. Essentially Puerto Rico and the United States federal government are considered one entity for double jeopardy purposes.