(Vaibhav Sharma is a fifth year student at S.S. Jain Subodh Law College, Jaipur. This is part 2 of a two-part series.)
Featured artwork: “Trial Scene” by David Gilmour Blythe

In the previous part, the article discussed the extent of protection against double jeopardy under the Indian Constitution in a case where the prior punishment was imposed on the person by a foreign court.  In this part, the same subject will be analysed, but in the context of the laws of the United States, the Constitution of the United States in particular.

POSITION IN THE UNITED STATES OF AMERICA

The law in the United States is positioned differently than that in India, except that it is established more firmly and clearly.[i]

The fifth amendment to the United States Constitution protects against double jeopardy.[ii] Although the Constitution mentions no exception to the rule, the judiciary has, nevertheless, carved out an unpleasant exception. The law as it stands today is: an offence committed abroad is triable in the U.S., irrespective of any previous punishment for the same offence.

The law is rooted in what is called ‘doctrine of dual sovereignty’ or ‘jurisdictional theory of double jeopardy.’[iii] Under the doctrine, an offence is punishable more than once, if it arises out of an act which is considered unlawful by two separate sovereigns. It holds: “when a defendant in a single act violates the “peace and dignity” of two sovereigns by breaking the laws of each, he has committed two distinct “offences” for double jeopardy purposes.”[iv]

The doctrine of dual sovereignty came into existence to deal with overlapping jurisdictions of state and federal laws since the federation and states, both, enjoy sovereignty in the US. Explaining the reason for the law, Justice Johnson observed in Houston^[v]:

“Every citizen of a State owes a double allegiance; he enjoys the protection and participates in the government of both the State and the United States…  [W]here the United States cannot assume, or where they have not assumed [an] exclusive exercise of power, I cannot imagine a reason why the States may not also, if they feel themselves injured by the same offence, assert their right of inflicting punishment also.”

On the same reasoning, the Courts started to treat an act as different offences if it violated laws of two different States, irrespective of the ingredients of the offences. In United States v. Furlong,^[vi] the Court observed that “As to our own citizens . . . their subjection to those [U.S.] laws follows them everywhere” and “if [the accused] are also made amenable to the laws of another state, it is the result of their own act in subjecting themselves to those laws”.

The law laid down in Furlong flowered very strongly in the Gamble case^[vii] of 2019, where the court firmly established that protection against double jeopardy exists only where the prosecution is repeated under the same jurisdiction. Where there are multiple independent jurisdictions, it recognizes each sovereign’s power as a matter of right to punish violators of laws. The Court, in this case, observed: “successive prosecution by two States for the same conduct is not barred by the Double Jeopardy Clause.”

This line of rulings betrays the previous judicial understanding which employed ingredient-based approach to check double jeopardy. For instance, in Blockburger v. the United States[viii], the Court held:

“where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

Moreover, as Justice Gorsuch observed in his dissent in Gamble, the drafters of the double jeopardy clause also rejected the sovereignty-based approach. The original draft offered protection against “more than one trial or one punishment for the same offence.” One of the representatives then proposed addition of: “by any law of the United States” after “same offence.”[ix] Such an addition would have ensured the adoption of sovereignty-based approach, but the Congresses rejected it.

Besides being regressive and betraying the precedents, the issue with sovereignty-based approach is that even if a person is prosecuted, convicted and imprisoned for ten years in a country, he can again be made to suffer so for the same offence by the U.S. Government if it regards it as an offence against its laws. Thus, there is no end to an individual’s suffering if he commits an offence once. This approach is great to satisfy the State’s urge to assert national laws abroad but is also bound to crush an individual’s rights in absolute terms. This approach is fundamentally unfair. In words of Justice Gorsuch: “The separate sovereigns exception was wrong when it was invented, and it remains wrong today.”[x]

CONCLUSION

Where an act attracts multiple concurrent sovereign jurisdictions, protection against double jeopardy is not guaranteed. While all the civilized modern States today acknowledge its necessity in their respective domestic domains, the urge to assert domestic laws abroad is easy to witness.

However, as far as India and the United States are considered, the legal approach is offence-based and sovereignty-based, respectively. The sovereignty-based approach is firmly established in the U.S. but is wrong nevertheless. This approach ignores the fact that the Constitution embodies not ordinary rules, but the “principles that are permanent, uniform and universal.”[xi]

The offence-based approach is the appropriate way forward but has its share of challenges. E.g., it fails to resolve the legal dilemma as arose in the case of Richardson,^[xii] where the convict could evade the imprisonment sentence in the U.S. for the offence of drug trafficking, merely by facing the penalty of paying fine before Guatemala courts. To prevent such exploitation of loopholes, as suggested by Sarup,[xiii] if a government must prosecute the accused under its jurisdiction, it must seek extradition before delivery of foreign court’s verdict; or the government may become a party to the dispute before the foreign courts.

However, the necessity of enforcement of protection against double jeopardy in its totality is beyond doubt. In the way forward, the Courts must adopt the offence-based approach keeping in mind the reason for the law. Otherwise, the life and liberty of people prosecuted by different sovereigns would rest on the whims of multiple executives.

[i]Tyler Hodgson, “Limiting Liability: For Crimes Committed Abroad,” American Bar Association 39, no. 1 (2013): 47–50.

[ii] “…Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb….”

[iii]Anthony J. Colangelo, “Gamble, Dual Sovereignty, and Due Process,” 2018-2019 Cato Supreme Court Review, no. 189 (2019), https://ssrn.com/abstract=3431288.

[iv]Heath v. Alabama, 474 U.S. 82 (1985) (n.d.). Also, United States v. Lanza, 260 U. S. 377

[v]Houston v. Moore, 18 U.S. 1 (1820)

[vi]18 U.S. 184 (1820); see also, Heath v. Alabama, 474 U.S. 82 (1985)

[vii]Gamble v. United States, No. 17–646 (Supreme Court of the United States June 17, 2019).

[viii]284 U. S. 299, 304 (1932).

[ix]Annals of Congress1789, 753.

[x]Supra Note 16.

[xi]William Blackstone, Commentaries on the Laws of England, vol. 4 (Oxford University Press, 2016), 2.

[xii]  580 F.2d 946 (1978)

[xiii]R. K. P Sarup, “Double Jeopardy’ in Indian Law Concerning Offences Committed Abroad: Need for a Fresh Approach,” Journal of the Indian Law Institute 6, no. 1 (March 1964): 104–16.