Double Jeopardy in All But Name

Two notorious cases indicate a policy shift on federal prosecutions of cases already tried in lower courts.

Washington Post legal analyst Jason Willick explains “Why you shouldn’t be so quick to applaud the hate-crime convictions of Ahmaud Arbery’s killers.”

Last month, the three men convicted in the 2020 murder of Ahmaud Arbery were sentenced to life imprisonment by a Georgia judge. Yet this week, they were convicted again for their roles in the killing, and will be sentenced again soon.

Are two convictions better than one? Politicians across the spectrum, including Georgia’s Republican governor, seem to think so. But the highly unusual decision to prosecute individuals a second time for the same acts, even without the possibility of greater punishment, represents a little-noticed but potentially significant erosion in a Justice Department policy intended to restrain prosecutors and protect civil liberties.

The case makes a poor case for sympathy. Not only did the convicted men commit a heinous crime but they seem to be genuinely bad people, who would have gotten away with their crimes because of small-town corruption had it not been for the doggedness of Arbery’s family and the fact that the idiots actually videotaped themselves committing the murder.

Further, while I’m incredibly skeptical of the “dual sovereigns” doctrine that pretends trying someone for the same crime twice, once in federal court and once in state court, doesn’t count as double jeopardy, it’s simply harder to get exercised about it when the first case resulted in a first-degree murder conviction and a life sentence. This verdict gives little added jeopardy to the criminals while giving some additional satisfaction to the victim’s family in getting a jury to declare the crimes racially motivated.

Still, Willick makes an interesting argument.

Travis McMichael, who fatally shot Arbery; his father, Gregory McMichael, who set off the chase; and William Bryan, who followed in his vehicle, are now notorious criminals. It’s certainly understandable, at a time of racial polarization, that many Americans celebrated the men’s federal conviction on hate-crimes charges.

But it’s precisely in climates of political passion that government is most likely to justify policies that corrode rights in the long run. This insight was until recently second nature to American liberals, as in their criticism of President George W. Bush’s “war on terror.” Successive prosecutions for the same act — like government searches of journalists or restrictions on peaceful assembly — might sometimes be necessary, but their wider use deserves close scrutiny in a free society no matter how odious the government’s targets.

As Supreme Court Justice Neil M. Gorsuch wrote in a 2019 opinion: “When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result,” the most unpopular defendants will be among the first targets — but there is “nothing to stop them from being the last.”

I’m very sympathetic to this argument. Indeed, the politics worked both ways in this case. As already noted, the killers were initially not prosecuted by the local authorities and only did so when enough political pressure was put on state authorities. And, while it was absolutely justified in this instance, politically-motivated prosecution is problematic. For example, I found the second prosecution of the police officers in the Rodney King case, who were acquitted in a fair trial, on federal civil rights charges in the wake of the LA Riots simply outrageous.

Still, there are cases where the resort to double jeopardy is the lesser of evils. Willick again:

Gorsuch’s opinion, on the Fifth Amendment’s double-jeopardy clause, was a dissent. The Supreme Court allows successive prosecutions by federal and state governments for the same crime — and the federal charges against the Arbery defendants differ from the state murder charges because they required prosecutors to prove racial bias.

Yet the Justice Department has for decades recognized that prosecuting people for the same acts multiple times, even when it has the constitutional authority, risks distorting the justice system. And while Justice won’t admit it, the department appears to have carved out a new exception to its dual-prosecution policy in this case.

Named for a 1960 Supreme Court opinion, the “Petite policy” says federal prosecutors should not charge people for acts already prosecuted by a state unless the state outcome left “a substantial federal interest … demonstrably unvindicated.” That narrow exception could apply, the policy says, if a state acquittal was the result of misconduct, or where a penalty was “manifestly inadequate.”

An acquittal that comes from gross misconduct on the part of the local courts is the most obvious case where “dual sovereignty” is justified. This is especially the case when racial animus is behind the acquittal. In those instances, one can reasonably argue that there was no real “jeopardy” in the first place. Ditto if the penalty is “manifestly inadequate” because of racial animus or other protection of an in-group. In most other instances, though, “manifestly inadequate” just seems like another way to say “I didn’t like the outcome.”

But in the Arbery case, the jury did convict. So what interest, exactly, is vindicated by a successive prosecution? A Justice Department representative said in an email that there is a “substantial federal interest in obtaining a conviction against the three defendants for a hate crime,” adding that the state convictions “do not contain a hate-crime element.”

Is it the department’s position that the Petite policy’s presumption against dual prosecutions no longer applies in instances where the Justice Department can charge defendants under a civil rights statute? It certainly appears so — see also the successive federal conviction of former Minneapolis police officer Derek Chauvin after he was sentenced to 22.5 years in state prison for the murder of George Floyd.

Again, Chauvin isn’t a sympathetic standard-bearer for this argument. It’s hard to argue he suffered any injustice in having to answer for civil rights charges on top of the murder charge he’d already been convicted of.

This apparent reinterpretation of the Petite policy has taken place without a public explanation or debate. Instead of reserving dual prosecutions for cases where a state penalty was insufficient, the Justice Department now asserts an interest in seeking convictions for purely symbolic purposes. That matters: An important constraint on government power has been removed.

Again, while I agree that this is mostly political grandstanding, I would think the injustice far greater had the defendants in question been acquitted in state court and then placed in jeopardy a second time in the federal system. Facing life in prison already, this amounts to gilding the lily.

Regardless, to the extent there are dueling sovereigns, it strikes me as much more reasonable for the federal charges to trump the local ones. If the Justice Department has federal claims arising out of a given set of facts they—and only they—should prosecute.

Alas, this is about as close as we have to settled law. With the exception of a pretty short window under the Warren Court, the Supreme Court has interpreted most of the Constitution’s protections from prosecutorial abuse pretty narrowly and the public has been quite happy about that.

FILED UNDER: Crime, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. OzarkHillbilly says:

    I have to say I can see a major difference between the 2 cases.

    The McMichaels took the law into their own hands and killed an innocent man just because of the color of his skin. I find the states guilty verdict sufficient and the additional federal prosecution a waste of time and money that could have been applied to problems not yet solved.

    Chauvin however committed a murder under color of law. His violation of George Floyd’s civil rights was done as he acted in his role as a police officer. If Floyd had survived, those crimes would still stand and hopefully (but doubtfully) be prosecuted. LEOs should be held to a higher standard than every day schmucks because of their role with in government.

    Except in Florida, where everyday schmucks will soon be able to declare themselves police officers when ever it suits them.

  2. Mu Yixiao says:

    A few disjointed thoughts.

    The case makes a poor case for sympathy.

    I can’t remember the quote exactly, but it goes something along the lines of “Justice is when the people you don’t like are protected the same as those you do.” I find it very telling when some liberals who decry the way that minorities are treated by the system toss out any notions of fairness or “innocent unless proven guilty” when it’s someone they don’t like.

    These three are disgusting racist murderers–who deserve every protection the law allows anyone else. There are days that this chaps my ass, but the alternative is so much more dangerous.

    …and that’s where liberal philosophy on “justice” is taking us.

    I am 100% opposed to any sort of “hate crime” legislation–for two reasons:

    1) It’s formally criminalizing thoughts and attitudes.

    a) I put a bullet through a black man’s head–killing him instantly–because I hate black people
    b) I spend an hour torturing a white man until he dies because I hate his opinion on football

    Why is (a) worse than (b)? Why does (a) get codified as a separate law?

    I fully support using motivation–such as hatred for a race, gender, sexuality, ethnicity, etc.–as a compounding factor in sentencing, but I chafe at it being a law on its own.

    2) (this is going to be controversial) It’s only going to be used against the majority, never the minority.

    How many minorities have been charged with–much less convicted of–hate crimes for attacks on white people?

    How may homosexuals? Transgenders? Anyone of any “protected class”?

    As shocking as this may be to progressive college students, minorities are just as capable of hating people in the majority because of their race, gender, orientation, etc.

    The whole notion of “hate crimes” just feels like “We’re in power, so we’re going to pile it on the people we don’t like–just because we can”. That’s exactly the attitude that created Jim Crow and corrupts our “justice” system to this day.

    These men have been found guilty of murder, the “reasoning” behind it has been taken into consideration during sentencing (and they deserve everything they got). Piling on “hate crime” prosecution is just an abuse of justice.

  3. EddieInCA says:

    @Dr. Joyner

    For example, I found the second prosecution of the police officers in the Rodney King case, who were acquitted in a fair trial, on federal civil rights charges in the wake of the LA Riots simply outrageous.

    Bullcrap! Their trial was not a fair trial. There was NO legitimate reason for the police to be acquitted, and anywhere in LA County they would have been convicted. Their trial should have never been sent to Simi Valley, which at the time, was as close to an all white, klan-loving, blacks hating, area that exists in California, and in Ventura County. To this day, that trial is a stain on Simi Valley and they people who live there will tell you that.

    That was one of the worst miscarriages of justice ever.

    Shame on you.

  4. Gustopher says:

    @Mu Yixiao: I agree, but I wouldn’t do a thing to protect these people from the injustice.

    Let the racists and Nazis spend their own resources to protect themselves.

    This is why I’m no longer a member of the ACLU— I’m fine with the White America Justice Society or whatever using precedents created defending decent folk, but I don’t want to support a group directly giving aid to the enemy.

    And these people are the enemy.

  5. gVOR08 says:

    There is always the argument, admittedly thin, that the state could somehow overturn the murder convictions and it’s good to have their sentences backstopped. And given how desperate DeSatan style red state governors are to find red meat for the base, I wouldn’t discount the possibility of some future guv of GA pardoning those good old boys who were just protecting their homes and got railroaded by the feds and that commie Biden.

    That aside, my primary reaction is that this is indeed piling on and likely pointless. However, DoJ and The System commit by commission and omission so much that’s outrageous that my reaction to this is, “Who cares.” As you say, hardly sympathetic victims.

  6. Slugger says:

    @Mu Yixiao: IANAL, but isn’t a reading of the mind of the accused fairly common? Let’s say I shoot my buddy while we are out hunting deer. If evidence is presented to the jury that I just found out that he was doing my wife,would the jury have to disregard that because it requires mind reading?

  7. wr says:

    @Mu Yixiao: “As shocking as this may be to progressive college students, minorities are just as capable of hating people in the majority because of their race, gender, orientation, etc.”

    I would find myself substantially more interested in discussing this subject with you had you not chosen to patronize, infantilize and trivialize anyone who disagrees with you. If you have something you actually believe in, why cloak it in bad faith arguments?

  8. gVOR08 says:

    @Mu Yixiao: In your hypothetical the guy who tortured a white guy would face more severe charges, as he should.

    But let’s invent a more relevant hypothetical:
    A) A white guy burns a cross on a black neighbors yard because he doesn’t want blacks in his neighborhood.
    B) He burns a bag of dog poop on his neighbors porch because the neighbor played loud music.
    I can see why society might want to make a statement that A) is less acceptable.

  9. Mu Yixiao says:


    I would find myself substantially more interested in discussing this subject with you had you not chosen to patronize, infantilize and trivialize anyone who disagrees with you.

    I didn’t. Go back and read what I wrote. I called out a very specific, very vocal, very easily-offended, and very small sub-group: “progressive college students”–i.e., the very vocal liberal snowflakes that take to social media and other venues in a very vocal manner, but which don’t represent the liberal viewpoint in general.

    Thank you for giving us all an example of how that works.

    I expect that there will be plenty of well-reasoned disagreement with my positions expressed in this thread. And I look forward to debating those points with other members of the commentariat in a rational and insightful way.

    But, hey. You be you.

  10. Just nutha ignint cracker says:

    @wr: I stopped reading his post–even though I agree with him on principle on some of the points I read–when I realized that he hadn’t taken the second step of changing the post he wanted to write in to the one that the audience needed to read.

  11. Just nutha ignint cracker says:

    @Just nutha ignint cracker: (Oh, he thinks the one he wrote IS the one the audience needed to read. Oops! My bad!)

  12. Mu Yixiao says:

    @Just nutha ignint cracker:

    Oh, he thinks the one he wrote IS the one the audience needed to read.

    Nope. Just expressing my opinion. No consideration of “what the audience needed to read” (I honestly have no clue what that’s supposed to mean). Personal attacks are out of character and beneath you.

    I’m going to go watch some old TV shows and call it a night.

    I don’t claim to be right or have any special expertise or insight. If you would like to discuss or debate any of the points/issues/opinions I’ve expressed, I’m happy to do so. If you’d rather rely on ad-hominem snark, so long and have a good night.

  13. Just nutha ignint cracker says:

    @Mu Yixiao: As I noted to wr, I’m pretty amenable to some of the ideas you were presenting (the utility of hate crime legislation being a key one), but about a quarter of the way in, I found your tone so off putting that I just moved on to the next post. So no, I see no particular advantage to either of us in pursuing further conversation. Yes, you can call that a win if you want to for having driven the big bad liberal off the field.

    And if you think my comments today were snarky, you need your meter adjusted. WA!

  14. It strikes me as long as we have a federal system it is possible to transgress both federal and state law, ergo these kinds of outcomes are possible. Perhaps we ought to have constitutional guidelines to dictate otherwise, but that would take tweaking our system in a way that we are simply not willing to do.

  15. James Joyner says:

    @EddieInCA: As a general rule, I support defense motions to change the venue of high-profile trials if there’s good reason to believe community pressure makes it difficult to find an unbiased jury. (Although, in cases like that one, where the publicity is national, I’m not sure such a venue exists.) I’ll defer to your greater insights into local California cultural dynamics. I don’t know that I’d even been to the state in 1992.

    As I’ve written many times, it has historically just been very hard to convict cops if the victim did anything at all to resist arrest. Even in the Federal civil rights trial, the judge instructed jurors that the vast majority of the blows struck by officers were justified, given that King was extremely intoxicated and continued to resist throughout most of the incident.

  16. James Joyner says:

    @Steven L. Taylor: Yes. Part of the problem is that the Framers never really envisioned Federal crimes outside of treason, counterfeiting, piracy, and the like and left the matter to Congress.

    The early federal criminal laws addressed only issues of special federal interest. To be sure, some of them were—like state crimes—ordinary criminal offenses. But they were crimes committed within a special federal sphere. Thus, for example, the Crimes Act of 1790
    punished murder and other crimes committed in a fort or other place controlled by the federal government, crimes committed outside the jurisdiction of any state, forgery of United States certificates and other public securities, perjury in federal court, treason, piracy, and
    committing acts of violence against an ambassador.’

    The federal government’s assumption of a limited role in maintaining everyday law and order left primary jurisdiction over criminal matters with the states. That seemed natural enough because crime was a matter of principally local interest and impact. Murders, robberies, rapes, and burglaries did not implicate any special federal interest unless they were committed within a federal enclave.

    Moreover, the criminal law was an expression of local mores and concerns.

    The failure of localities to successfully prosecute white-on-black crimes, no matter how heinous, certainly pointed to a need for the civil rights crimes. And, obviously, we’re a much less local society than we used to be and need all manner of other federal regulations.

    It just seems obvious to me that there ought only be one bite of the apple for the state to put its awesome power against an ordinary citizen. If the Feds want to take that bite, the Supremacy Clause (and the Double Jeopardy Clause) should enjoin localities from taking another.

    Again, the two cases Willick cites are terrible because the accused are obviously guilty of heinous crimes. But the law should be about general principles, not outrageous specific circumstances.

  17. Matt Bernius says:

    @Steven L. Taylor:

    It strikes me as long as we have a federal system it is possible to transgress both federal and state law, ergo these kinds of outcomes are possible.

    This. This really speaks to how fragmented our criminal legal systems are.

    @James Joyner:

    The failure of localities to successfully prosecute white-on-black crimes, no matter how heinous, certainly pointed to a need for the civil rights crimes. And, obviously, we’re a much less local society than we used to be and need all manner of other federal regulations.

    And this was definitely the impetus for hate crime laws–not to mention how they have historically been used for the most part (including the LA scenario that was already discussed). And note that “successfully prosecute” goes far beyond just bringing charges–arguably it goes all the way through sentencing (as it wasn’t uncommon to either plea to a lesser charge or get an extremely lenient sentence).

    All that disposed of, as someone who is leery of system overreach, I think that the general rule should be not to double-dip in most, if not all circumstances. I also doubt one would be able to specifically enshrine that in law.

    While these individuals’ crimes were despicable, I am always reticent to use the worst of the worst as a template for how to treat everyone. I won’t shed tears for any of these men, but I also think we would have been better served if the local prosecution was enough.

  18. HarvardLaw92 says:

    @Mu Yixiao: