Some people misconstrue just what double jeopardy is and how it apples. Some of those are those who either don’t know what it means and how it applies or those who want others to misconstrue it so that Casey Anthony doesn’t get indicted by the federal government. When someone says that Casey Anthony cannot be tried by the federal government because double jeopardy attaches since she has already been tried by the state of Florida, they are just plain wrong.
The Supreme Court has dealt with the subject of double jeopardy. The Court has maintained that, because of the dual sovereignty doctrine, someone can be tried by both the federal government and a state, even if he or she was previously tried by one or the other, because each state and the federal government are different sovereign governments, and this allows each one to “punish offenses against their peace and dignity.” As a result, someone can be tried by both a US state AND the federal government for charges that arise from the same acts.
In 1922, the Supreme Court of the United States, unanimously overturning a lower court ruling, ruled that Vito Lanza could be tried for violations of law by the federal government even though he had also been tried by the state of Washington for similar violations based on the same criminal acts. Their justification for this ruling was that because both the states and the federal governments are separate sovereign governments, double jeopardy did not apply when he was charged by the federal government after he was tried by the state of Washington.
When the same act is an offense against both state and federal governments, its prosecution and punishment by the latter, after prosecution and punishment by the former, is not double jeopardy within the Fifth Amendment.
Each government, in determining what shall be an offense against its peace and dignity, is exercising its own sovereignty, not that of the other. It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both, and may be punished by each.
An act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other. It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.
Each state is considered to be a separate sovereign unto itself, and the federal government is a separate sovereign unto itself. Each state has its own executive branch, judicial branch, and legislative branch as does the federal government. Each sovereign elects its own public officials, makes its own laws, and prosecutes its own crimes.
What the Supreme Court ruling means is that double jeopardy only applies where a single sovereign government is concerned but does not apply where different sovereign governments are concerned. Because the federal government is a different sovereign government than the states, it has the right to prosecute crimes that occur within its territory regardless of whether or not someone has been previously tried by another sovereign government, ie., a state, as long as the conduct violates a federal statute. Essentially, double jeopardy applies intra-sovereignly but not inter-sovereignly
~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ The Petite Policy ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
The Petite Policy was established in US v. Petite (1960). It is the internal DOJ policy that guides federal prosecutors in determining whether or not to bring federal criminal charges against someone who has already been tried by a state.
The Petite Policy (USAM 9-2.031) of the United States Department of Justice states:
“This policy establishes guidelines for…determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding.”
The policy lists 3 prerequisites that must be met before they will charge someone with a federal crime after that person was previously tried by a state:
1. The crime involves a substantial and enduring federal interest.
2. The prior prosecution must have left the stated federal interest demonstrably unvindicated.
3. The government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact.
Now, for those who say that someone cannot be tried by the federal government after being tried by a state, they have to explain why the DOJ has written a policy that tells them when they can do that. The DOJ is not in the business of writing policy they would never have any use for, a policy that, according to some, applies to doing something that is unconstitutional. The fact is that the policy was written for a reason – to guide the DOJ in determining when someone can be tried by the federal government, after being tried by a state, for the same acts they were tried by the state for – and it says that right in the policy. And the reason that they are able to try someone after that person has been tried by a state is the dual sovereignty doctrine that was established in 1922 by the Supreme Court in US v. Lanza.
The question of whether someone can be tried after he or she has been tried by a state is not a simple yes or no; in fact, it is both a yes and a no. No, that person cannot be tried more than once by the same sovereign government; if a state or the federal government has tried someone, he or she cannot be tried again by that sovereign government. But yes, he or she can be tried by a sovereign government that has not previously tried that person.
The answer to the question of whether or not Casey Anthony can be tried again for the murder of her daughter and/or associated offenses, then, is that she cannot be tried again by the state of Florida due to the fact that jeopardy applies because they have already tried her. She can, however, be tried by the federal government for crimes associated with the homicide of her daughter because the federal government is a different sovereign government that has not previously tried her.