Tag Archives: Double Jeopardy

The Supreme Court and Puerto Rico — Part One

This year, in a somewhat unusual turn of events, the status of Puerto Rico has been a significant part of national politics — at least at the actual level of governing.  Both the Supreme Court and Congress are considering Puerto Rico’s public debt.  Congress with legislation to fix it; the Supreme Court looking at the legal effect of Puerto Rico’s own efforts to fix it.  While technically these two are not directly related, the Supreme Court is still working on its decision on its case; and nobody knows whether the Supreme Court is keeping one eye on what is working through Congress in writing that opinion.  (The opinion is likely being written by Justice Thomas or Justice Alito).

The Supreme Court also had under review a second case involving Puerto Rico.  Technically, the case was about double jeopardy — the right of a person not to face the same charges twice.  However, there are some exceptions to this general rule and one of them involves what is called the “dual sovereign” exception.  Stripped to its bare bones, this exception recognizes that — under the Constitution — states and tribes retain some vestige of sovereignty.  Because of this legal separateness, two states or two tribes or a state and the federal government can file similar charges against the same individual arising from the same incident without running afoul of the ban on double jeopardy.  However, because a territory does not have the same vestiges of sovereignty, it violates double jeopardy for a territory and the federal government to both file similar charges.  (Similarly, a city within a state and that state may not both file similar charges.)  In the pending case, both the United States and Puerto Rico had filed charges.  The issue presented was whether Puerto Rico’s current status made it more like a state than a territory for double jeopardy purposes.

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