The expansion of federal regulatory authority in the twentieth century has resulted in a substantial increase in the number of federal crimes. In turn, this growth has increased the number of situations in which an individual’s actions violate both federal and state laws, forcing federal courts to face the question of whether the double jeopardy clause of the fifth amendment permits both governments to prosecute an individual for a single act.
Throughout the century, the Supreme Court has allowed such successive prosecutions on the ground that double jeopardy does not apply when the two prosecutions are initiated by separate sovereigns. Within the last decade, the Court has expanded the dual sovereignty exception. A 1978 decision held that the exception authorized separate trials by an Indian tribe and by a federal court. Even more recently, one of the first opinions in the 1985 term applied the doctrine when two states prosecuted an individual for the same murder.
This article analyzes the historical development and contemporary significance of the dual sovereignty exception to double jeopardy. Part one focuses on an often forgotten aspect of the exception: its origin in the era of national prohibition. Part two discusses the present application of the exception with a critique of the continued adherence to the dual sovereignty doctrine in con-temporary cases.
The article begins with an overview of the pre-prohibition opinions used by the Supreme Court to fashion the dual sovereignty exception to double jeopardy during the 1920s. It then reviews the events leading to the insertion of the “concurrent power” language into the eighteenth amendment and analyzes the prohibition decisions in which the dual sovereignty exception was first applied. Following this historical review, the article explains the significance of the prohibition cases in establishing the basic concepts that still govern contemporary law, understanding the course of doctrinal development during the prohibition era, and, more generally, appreciating the way that judicial doctrine responds to changing social and political issues.
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