SUPREME COURT

SCOTUS Again Upholds Double Prosecution and Punishment for the Same Crime
Unsatisfied by the outcome of one case, the feds secured a much more severe penalty the second time around.
JACOB SULLUM | 6.22.2022 12:01 AM

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Supreme Court Justice Neil Gorsuch
Justice Neil Gorsuch (CNP/AdMedia/Newscom)
The federal government prosecuted Merle Denezpi twice for the same crime. It also punished him twice: the first time with 140 days in a federal detention center, the second time with a prison sentence more than 70 times as long.

Although that may seem like an obvious violation of the Fifth Amendment's ban on double jeopardy, the Supreme Court last week ruled that it wasn't. As the six justices in the majority saw it, that puzzling conclusion was the logical result of the Court's counterintuitive precedents on this subject.

The Fifth Amendment says no person will "be subject for the same offence to be twice put in jeopardy of life or limb." But under the Court's longstanding "dual-sovereignty" doctrine, an offense is not "the same" when it is criminalized by two different governments.

That doctrine allows serial state and federal prosecutions for the same crime, opening the door to double punishment or a second trial after an acquittal. Although neither seems just, the Court says both are perfectly constitutional.

The justices reaffirmed that view in a 2019 case involving a man with a felony record who was convicted twice and punished twice for illegally possessing a gun—first in state court, then in federal court. Although the elements of the crime were the same in both cases, the majority said, the two prosecutions did not amount to double jeopardy because they involved two different "sovereigns."

Justice Neil Gorsuch strenuously dissented in that case. "A free society does not allow its government to try the same individual for the same crime until it's happy with the result," he wrote. "Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy."

Gorsuch, joined by Justices Sonia Sotomayor and Elena Kagan, dissented again last week. Even the "colossal exception" created by the dual-sovereignty doctrine, he said, is not big enough to encompass the two cases against Denezpi, both of which were pursued by the federal government under federal law.

In 2017, Denezpi and a woman identified as V.Y. in court papers, both members of the Navajo Nation, traveled to Towaoc, Colorado, a town within the Ute Mountain Ute Reservation where Denezpi's girlfriend lived. V.Y. alleged that Denezpi sexually assaulted her during the trip, while he maintained that the encounter was consensual.

After federal officials charged Denezpi with three crimes, he pleaded no contest to assault and battery, which is defined by tribal law but also punishable under the Code of Federal Regulations by up to six months in jail. A Court of Indian Offenses, part of a system established by the Department of the Interior, sentenced Denezpi to time served: 140 days.

Accepting V.Y.'s allegations as true, most people would view that penalty as excessively lenient, and federal prosecutors in Colorado evidently agreed. Six months after Denezpi completed his Interior Department sentence, the Justice Department charged him with aggravated sexual abuse, which resulted in a 30-year federal prison term.

"Mr. Denezpi's first crime of conviction (assault and battery) is a lesser included offense of his second crime of conviction (aggravated sexual abuse)," Gorsuch notes in his dissent. "And no one disputes that, under our precedents, that is normally enough to render them the 'same offense' and forbid a second prosecution."

Six justices nevertheless approved the second prosecution, tracing the authority for the first conviction to a distinct "sovereign": the Ute Mountain Ute Tribe. But as Gorsuch notes, the first prosecution was not based on tribal law per se; it was based on a federal regulation that criminalizes "violation of an approved tribal ordinance."

Although the two convictions involved the "same defendant," the "same crime," and the "same prosecuting authority," Gorsuch observes, the Court implausibly concluded that "the Double Jeopardy Clause has nothing to say about this case." Such reasoning amplifies the danger that Gorsuch decried in 2019, inviting the government to "try the same individual for the same crime until it's happy with the result."

© Copyright 2022 by Creators Syndicate Inc.

NEXT: Supreme Court Makes It Effectively Impossible To Sue Federal Cops, Smashing a 51-Year-Old Precedent

JACOB SULLUM is a senior editor at Reason.

SUPREME COURT
DOUBLE JEOPARDY
CRIMINAL JUSTICE
SEX CRIMES
SENTENCING
DEPARTMENT OF INTERIOR
NATIVE AMERICANS
DEPARTMENT OF JUSTICE
NEIL GORSUCH
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Well this sucks, IMO

This just upholds decades worth of precedent.

Well tribal is not State law and in many cases not even American law, it’s Tribal law. They view theme selves as sovereign nation. Ultimately she was failed by the tribe.

I'm with Justice Gorsuch. Every member of a tribe I know has a card from the Bureau of Indian Affairs. Pretty federal to me.

Letter of the law he is correct, in practice tribal sure act like they aren’t bound by federal laws, the tribal government should of went hammer time on this guy.

It is one of those lose lose cases. No winner outside the poor girl getting some justice

Letter of the law is what the supremes are for. If the state had tried him and then the feds I would feel the same way. The bill of rights is the law of every state, county or city.

The judicial branch is used as a tool of tyranny in many instances. Like when a state acquits a defendant and the feds jump in and charge him with a charge that is for the same offense but they call it something else. Or in federal court you can be acquitted of the predicate charge and convicted of an enhancement charge. Tyranny is what I call it.

And yeah, that oie boy needs a lesson in manners and common decency. But her kin and or friends should do that.

Yep.