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Court will assess double-jeopardy claim with implications for tribal sovereignty
submitted 2 years ago by goobandit from scotusblog.com
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[–]Tiwaking 2 insightful - 1 fun2 insightful - 0 fun3 insightful - 0 fun3 insightful - 1 fun - 2 years ago (0 children)
No update on this case yet: https://www.scotusblog.com/case-files/cases/denezpi-v-united-states/
Feb 22 2022 Argued. For petitioner: Michael B. Kimberly, Washington, D. C. For respondent: Erica L. Ross, Assistant to the Solicitor General, Department of Justice, Washington, D. C.
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-7622_g3bh.pdf
MR. KIMBERLY: Thank you, Mr. Chief Justice, and may it please the Court: The Double Jeopardy Clause implicates two distinct exercises of sovereign authority: first, the authority to say what an offense is, and, second, the authority to put an individual in jeopardy for committing an offense. This Court has consistently assumed the importance to the dual-sovereignty doctrine of both expressions of sovereign power. The analysis thus asks not only whether the two law-giving entities draw their authority from separate sovereigns but also whether the two law-enforcing entities do so. The government disagrees. It says that the separateness of the offense-defining entities is all that matters. But that position would invite the precise abuses that the Double Jeopardy Clause was intended to prevent, and the CFR courts themselves provide the evidence. Assault, for an example, is an offense under both tribal law and the BIA's regulatory criminal code. According to the government, if Petitioner had gone to trial rather than taking a plea on the tribal offense and he had been acquitted, the very same prosecutor would have been free the very next day to bring a successive prosecution for a substantively identical offense, this time having honed his case and refined his proof based on the lessons learned in the first prosecution. That is not an outcome that the framers of the Double Jeopardy Clause would have thought tolerable. In arguing otherwise, the government focuses on a single word, "offense," which it takes entirely in isolation and to which it applies rigid dictionary definitions. But the Bill of Rights prevents not only transgressions of the amendment's literal terms but also governmental efforts to circumvent their protections.
MR. KIMBERLY: Thank you, Mr. Chief Justice, and may it please the Court: The Double Jeopardy Clause implicates two distinct exercises of sovereign authority: first, the authority to say what an offense is, and, second, the authority to put an individual in jeopardy for committing an offense.
This Court has consistently assumed the importance to the dual-sovereignty doctrine of both expressions of sovereign power. The analysis thus asks not only whether the two law-giving entities draw their authority from separate sovereigns but also whether the two law-enforcing entities do so.
The government disagrees. It says that the separateness of the offense-defining entities is all that matters. But that position would invite the precise abuses that the Double Jeopardy Clause was intended to prevent, and the CFR courts themselves provide the evidence. Assault, for an example, is an offense under both tribal law and the BIA's regulatory criminal code.
According to the government, if Petitioner had gone to trial rather than taking a plea on the tribal offense and he had been acquitted, the very same prosecutor would have been free the very next day to bring a successive prosecution for a substantively identical offense, this time having honed his case and refined his proof based on the lessons learned in the first prosecution. That is not an outcome that the framers of the Double Jeopardy Clause would have thought tolerable.
In arguing otherwise, the government focuses on a single word, "offense," which it takes entirely in isolation and to which it applies rigid dictionary definitions. But the Bill of Rights prevents not only transgressions of the amendment's literal terms but also governmental efforts to circumvent their protections.
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[–]Tiwaking 2 insightful - 1 fun2 insightful - 0 fun3 insightful - 0 fun3 insightful - 1 fun - (0 children)