The Federal Government and the State Government are separate governments and have different jurisdictions by the United States Constitution. Over the last three (300) years the Federal Government has taken on more power or jurisdiction that had traditionally been left to the States. For example, the States have the right to regulate what happens in their borders under what is called their “police powers.” Of course if it involves Interstate Commerce Congress has the right to pass a law that controls over the State law. Since the Federal Government and State Governments are different, an act by a person in a State could violate both a State law and a Federal law at the same time without violating the Double Jeopardy Clause of the United States Constitution.

The Double Jeopardy Clause holds that a person cannot be punished or tried more that once for the same offense or crime by the same jurisdiction. Now when I say tried or punished I mean the case has to go to a verdict of either guilty or not guilty. If you go to trial and are found not guilty you can never be tried for that crime again. If you are found guilty you can only be punished one time. If you appeal your case and the higher court reverses your conviction and remands the case back to the lower court, you can be tried again. But if your act or crime is a violation of two soverigns, you may be tried again for the same conduct.

This is an exception to the Double Jeopardy Clause. If the crime you commit is against different governments or sovereigns, then each could try you. This is clear in controlled substances or drug cases. If a person brings drugs into a state that person can be prosecuted by both the Federal and State Governments without violating the Double Jeopardy Clause. In Mississippi we have a state law that prohibits the prosecution for a drug crime if the person is first prosecuted for the same offense by another state or the Federal Government. Nothing is ever simple. What does the same mean? If a man is prosecuted for a conspiracy in Federal Court, and as part of the conspiracy he brings a pound of marijuana in Mississippi, it seems like Mississippi could not prosecute the man for conspiracy. But could they prosecute him for possession with intent? This is not the same crime. This is a question one of my clients faced recently but the case got resolved favorably before we had the opportunity to have a hearing.

So unless the State you live in has a law like Mississippi that prohibits the prosecution of a person after the Federal government has prosecuted them for the same offense, you can generally be prosecuted by different sovereigns. Merrida Coxwell is managing partner of Coxwell & Associates, a firm dedicated to helping solve clients real life problem.

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

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