Not Twice for the Same: How the Dual Sovereignty Doctrine is Used to Circumvent "Non Bis In Idem"
Today, it is quite possible for a criminal defendant who has violated the laws of several countries with one criminal act to be subject to multiple prosecutions. In situations where two countries share concurrent criminal jurisdiction, it is unclear whether the defendant would be able to rely on some level of double jeopardy protection. International law currently does not obligate a sovereign state to recognize another state's penal judgments, thus allowing states to prosecute a defendant regardless of any legal action that may have been previously taken against the defendant. Several countries, however, have chosen to provide defendants with at least some level of double jeopardy protection. In the international realm, the prohibition against multiple prosecutions for the same offense is cited as the maxim non bis in idem.
Despite the fact that the Fifth Amendment of the Constitution of the United States provides for such protection against sequential prosecutions, the United States does not extend this protection to defendants who have been prosecuted in another sovereign state. Under the judicially-constructed dual sovereignty doctrine, U.S. courts allow separate sovereigns to seek redress for violations of their law independent of any action that may have been previously taken by another affected sovereign. It is this doctrine that the U.S. courts cite in choosing not to recognize non bis inidem as a binding principle of international law, but rather as a protection that may be provided only by treaty in cases of extradition. Often times, however, defendants are left with little or no protection even with operative treaty provisions.
This note considers the issues and implications presented by the United States' use of the dual sovereignty doctrine in permitting multiple prosecutions. It will further discuss how U.S. courts have counteracted "non bis in idem" even in the presence of a treaty provision. Finally, this note will propose a standard that provides the United States with an avenue with which to vindicate its interests while at the same time subjecting the defendant to a single trial.
Dax E. Lopez,
Not Twice for the Same: How the Dual Sovereignty Doctrine is Used to Circumvent "Non Bis In Idem",
33 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol33/iss5/4