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The New York Double Jeopardy Loophole

Barry Kamins

The law of double jeopardy in New York is complex. It emanates from three separate sources: the federal and state constitutions and the Criminal Procedure Law. The decisional law on this subject is difficult to navigate and, as Justice William Rehnquist once noted, “while the Clause itself simply states that no person shall be ‘subject for the same offense to be twice put in jeopardy of life or limb’, the decisional law in the area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator.” Albernaz v. United States, 450 U.S. 333, 343.

This column will focus on one discrete issue that has arisen in light of current events: Does a presidential pardon pose a bar to a state prosecution for the same acts or criminal transactions committed under federal law? To answer that question, one must first review certain aspects of the double jeopardy doctrine, and how it is applied in this state.

The New York Court of Appeals has made clear the purpose served by the doctrine itself: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same crime.” People v. Brown, 40 N.Y.2d 381 (1976). Thus, the motivating force underlying the doctrine is that the sovereign, “with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity … ” Green v. United States, 355 U.S. 184, 187.

Having said that, while the sovereign, i.e., the federal government, cannot pursue an individual a second time, the U.S. Supreme Court has held, however, that prosecutions for essentially the same violations may be conducted by separate sovereigns with accompanying punishments imposed upon defendants convicted of violating the laws of each. Bartkus v. Illinois, 354 U.S. 121.

Thus, despite the federal constitution’s prohibition against double jeopardy, the Supreme Court, pursuant to the “dual sovereignty” doctrine has noted that there is nothing improper about separate prosecutions by both the federal government and by a state when the criminal law of each has been violated by the same conduct. The Supreme Court’s rationale is that a defendant who, in a single act, violates the laws of two sovereigns, has committed two distinct offenses. United States v. Lanza, 260 U.S. 377.

Justice Hugo Black, dissenting in Bartkus, noted that it does not matter to the person being charged that a different sovereign is conducting the second prosecution; he only cares that he is being made to stand trial for the same offense. The federal double jeopardy doctrine was ultimately applied to the states through the Fourteenth Amendment in 1969. Benton v. Maryland, 395 U.S. 784.

On Dec. 6, 2018, the Supreme Court heard argument in Gamble v. United States, No. 17-646 in which the court is being asked to overturn the dual sovereignty doctrine. The defendant was stopped for driving with a broken tail light, and a gun was found in his automobile. After pleading guilty in an Alabama state court, he was charged by the Alabama U.S. Attorney for the same crime.

After his federal conviction by guilty plea, he appealed on the grounds of double jeopardy, arguing that the dual sovereignty doctrine undermines the protection that the Double Jeopardy clause was designed to provide and that it is inconsistent with its purposes. Counsel also argued that, in the latter part of the 20th century, federal criminal statutes increasingly addressed conduct already criminalized under state law. Thus, this federalization of criminal law has gone far beyond what the judicial authors of the dual sovereignty doctrine could possibly have imagined.

During oral argument, the defendant faced a number of concerns voiced by the justices. Some justices raised the issue of stare decisis, noting that the dual sovereignty doctrine is a “170-year-old-rule” for which 30 justices have voted. Justice Gorsuch asked why “of all the errors this Court has made over the years” it should overrule the duel sovereignty doctrine?

Nearly half the states have limited the application of the dual sovereignty clause either by statute or constitution. 38 N. Kentucky L. Rev. 1. While states are bound to provide no less protection than that afforded by the federal constitution, they are free to provide greater protection. New York has done so through Article 40 of the Criminal Procedure Law and the New York Court of Appeals has acknowledged that CPL 40.20(2) “does reject, in large part the dual sovereignty statute” (Matter of Polito v. Walsh, 8 N.Y.3d 683, 690). As a result, a prosecution which may not be barred by a constitutional provision, may be barred by a statutory one.

Under CPL 40.30(1), a person is placed “in jeopardy” or “prosecuted” for an offense, when a prior proceeding has terminated either by a plea of guilty or where the prior action proceeded to trial and a jury was impaneled and sworn or, in the course of a bench trial, a witness was sworn. If any of these steps occur in a federal prosecution, then a subsequent prosecution under New York law “based on the same act or criminal action” cannot proceed unless one of 12 statutory exceptions applies. The Court of Appeals has noted that the Legislature added these exceptions because the general statutory rule, barring subsequent prosecutions, was too broad. People v. Rivera, 60 N.Y.2d 110.

Many of the exceptions ring true. For example, a defendant who is convicted in federal court but has his conviction reversed on appeal can be later prosecuted in state court for the same act. Similarly, where a defendant moves for, and is granted a mistrial in a federal prosecution, a state prosecutor could charge that defendant with the same crime.

What happens, however, if the President pardons an individual after he has pled guilty or proceeded to trial in federal court? Can that individual then be prosecuted under state law for the same act or criminal action? A number of legislators have argued that the answer to that question is “no” and have, as a result, proposed legislation to address what has been referred to as the “double jeopardy loophole.” The loophole exists because, under the Criminal Procedure Law, the state cannot prosecute an individual despite the fact that he has been granted a presidential pardon.

The proponents of the legislation have argued that, while the President has no authority to grant clemency for state offenses, a presidential pardon may, nonetheless, result in foreclosing a state prosecution. Under the Criminal Procedure Law, when a court nullifies a federal conviction, a state prosecution can go forward. When the President nullifies a federal conviction through a pardon, however, there is nothing in the state statute that still permits a prosecution.

As a result, “a defendant pardoned by the President for a serious federal crime could be freed from all accountability under federal and state criminal law even though the President has no authority under the U. S. Constitution to pardon state crimes.” Letter from Attorney General to Governor Cuomo, April 18, 2018.

Any proposed legislation would have to withstand a challenge under the Ex Post Facto Clause of the Constitution. For example, if an individual who has already been placed in jeopardy could still be prosecuted based on a change in the New York law, an argument could be made that the law would be unconstitutional as to that individual.

Under the Ex Post Facto Clause, the government cannot enact laws which retroactively create criminal liability for conduct that originally was not criminal. In Stogner v. California, 539 U.S. 607 (2003), the Supreme Court applied the Clause and struck down a California statute of limitations provision that resurrected an otherwise time-bound criminal prosecution and was itself enacted after pre-existing limitations had expired.

The same argument could be made with respect to any amendment of New York’s double jeopardy statute that was applied to someone who had pled guilty or started trial in federal court before the effective date of the new statute. See Jed Shugerman, “Cy Vance Has a Double Jeopardy Problem,” Slate Magazine (March 5, 2019). Individuals, however, who plead guilty or commence federal trial after an amendment to the Criminal Procedure Law could not mount that type of challenge under the Ex Post Facto Clause.

Under one bill, proposed by State Senator Todd Kaminsky, a new exception would be added to CPL 40.30, allowing a state prosecution of an offense for which an individual has received a presidential pardon, reprieve or other form of clemency. The law would apply only to offenses committed on or after the effective date of the legislation. According to a report in the New York Law Journal (Dan Clark, N.Y. Lawmakers Introduce New Language to Close ‘Double Jeopardy Loophole’ (March 14, 2019)), the legislation would only permit a prosecution of a limited group of individuals, i.e., those who have certain close relationships with the President of the United States and who receive pardons.

This “pardon exception to double jeopardy” would not, however, apply to any form of clemency granted five years or more after entry of judgment in the federal criminal case. That would protect “those who have repaid a meaningful debt to society for their federal offenses.” Sponsor’s Memorandum in Support of the Legislation).

The five-year rule was modeled on a federal regulation that requires a petitioner for a federal pardon to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application. 28 CFR §1.2.

The fate of the proposed legislation remains to be seen. What is clear, however, is that the debate will continue over how to address the double jeopardy loophole and the effect of a presidential pardon on a state-based prosecution for the same act or criminal transaction.

Barry Kamins is a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (Lexis/Nexis 2018); he is a former state Supreme Court Judge.