Academic journal article Harvard Law Review

Fifth Amendment - Double Jeopardy - Dual-Sovereignty Doctrine

Academic journal article Harvard Law Review

Fifth Amendment - Double Jeopardy - Dual-Sovereignty Doctrine

Article excerpt

The inaugural words of America's Constitution make plain that "We the People" are the nation's wellspring of sovereign authority, (1) yet the doctrines of our "one supreme Court" (2) often suggest that ultimate power resides in polities alone. One area of constitutional jurisprudence that exhibits this ironic turn is the dual-sovereignty doctrine, a formalist inquiry that tests whether two political entities are separate sovereigns for double jeopardy purposes. (3) Last Term, in Puerto Rico v. Sanchez Valle, (4) the Supreme Court applied this longstanding doctrine to the Commonwealth of Puerto Rico (5) and held that it did not constitute a "sovereign" for double jeopardy purposes. (6) Although Justice Kagan applied the Court's dual-sovereignty precedent--an unsurprising approach from a jurist committed to stare decisis--she seemed to have done so with great reluctance. And such hesitancy made sense: despite the virtues that rules-oriented formalism holds within the nation's courts, such an approach can appear particularly vice ridden outside of them. Such is the case with the dual-sovereignty doctrine, whose brand of sovereignty seems to diverge sharply from that lived out by citizens in the process of democratic self-rule--a self-rule exercised by Puerto Ricans, according to the Court, only by congressional grace, not by natural right.

Puerto Rico became a Spanish colony in 1493 and remained so until 1898, when Spain ceded the island to the United States following the Spanish-American War. (7) After five decades of legislative and executive power devolving from Washington to San Juan in fits and starts, (8) "Congress enabled Puerto Rico to embark on the project of constitutional self-governance" (9)--Puerto Ricans' most significant assertion of sovereignty in centuries. (10) In 1950, Congress enacted Public Law 600, (11) which "authorized the island's people to 'organize a government pursuant to a constitution of their own adoption.'" (12) The island's voters accepted Congress's invitation, and within two years a constitutional convention produced, and the Puerto Rican people approved, a draft constitution. (13) Then, Congress "took its turn on the document," both excising and adding language. (14) Puerto Rico's constitutional convention promptly assented to the revisions. (15) Following a final proclamation by the island's governor, the constitution--and its newly formed Commonwealth of Puerto Rico--was endowed with the force and effect of law. (16)

The Commonwealth's legislature subsequently exercised its constitutional authority to enact the Puerto Rico Arms Act of 200017 (the Act), which regulates firearms sales on the island. (18) In 2008, Commonwealth prosecutors charged Luis Sanchez Valle and Jaime Gomez Vazquez with violating the Act's prohibition against selling firearms without permits. (19) With those charges pending, federal grand juries likewise indicted both men for violations of analogous federal laws "based on the same transactions." (20) Both Sanchez Valle and Gomez Vazquez pleaded guilty to the federal charges--which were subject to significantly more lenient sentences relative to Puerto Rican law (21)--and moved to dismiss the Commonwealth's charges, arguing that successive prosecutions "on like charges for the same conduct" by both governments was unconstitutional. (22) The men's respective trial courts accepted their argument, but the Court of Appeals of Puerto Rico reversed based on the law at the time. (23) Weighing in, the Supreme Court of Puerto Rico reversed, holding that "because Puerto Rico is not a federal state, a person who has been acquitted, convicted or prosecuted in federal court cannot be prosecuted for the same offense" by Puerto Rico. (24)

The Supreme Court affirmed. (25) Writing for a six-Justice majority, Justice Kagan (26) held that the Double Jeopardy Clause bars the federal government and Puerto Rico from "twice put[ting]" a defendant "in jeopardy" for the "same offence. …

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