The U.S. Supreme Court is currently re-considering the separate sovereigns exception to the Fifth Amendment’s Double Jeopardy Clause. This doctrine, which has existed for nearly 200 years, allows a state government to bring charges for conduct that has already been the subject of federal prosecution (and vice versa). The timing of the Supreme Court’s current case is auspicious; a U.S. president’s pardon power extends only to federal crimes, and the separate-sovereigns exception could potentially be invoked to permit state prosecutions of pardoned individuals.

The Double Jeopardy Clause ensures that no one shall “be twice put in jeopardy” for the same offense. Under the separate sovereigns exception, however, a state and the federal government may both prosecute an individual for a single offense.  The exception reflects the core principle of our federalist system—state governments and the federal government are independent sovereigns. Therefore, where conduct violates both state law and federal law, an accused can be charged, tried and sentenced by both.

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