NCJ Number
55077
Journal
Georgetown Law Journal Volume: 66 Issue: 4 Dated: (APRIL 1978) Pages: 1137-1161
Date Published
1978
Length
25 pages
Annotation
A DISCUSSION IS PROVIDED OF THE U.S. JUSTICE DEPARTMENT'S APPLICATION OF THE 'PETITE' POLICY, WHICH PRECLUDES MOST UNNECESSARY SECOND TRIALS AND PROTECTS DEFENDANTS FROM HARASSMENT PERPETRATED THROUGH MULTIPLE PROSECUTIONS.
Abstract
THE PETITE POLICY IS AN INTERNAL JUSTICE DEPARTMENT POLICY REGULATING THE INITIATION OF FEDERAL PROSECUTIONS IN TWO SITUATIONS. UNDER THE POLICY, DEFENDANTS WHO ARE PROSECUTED BY A STATE WILL NOT BE PROSECUTED FOR FEDERAL CRIMES ARISING FROM THE SAME ACT EXCEPT WHEN THERE IS COMPELLING FEDERAL INTEREST AND THEN ONLY WITH THE APPROVAL OF AN ASSISTANT ATTORNEY GENERAL. THE POLICY ALSO PROHIBITS SEPARATE PROSECUTIONS FOR DIFFERENT FEDERAL OFFENSES COMMITTED DURING THE COURSE OF A SINGLE CRIMINAL EPISODE, AGAIN, UNLESS AN ASSISTANT ATTORNEY GENERAL APPROVES. THE POLICY WAS DEVELOPED IN RESPONSE TO SEVERAL U..S. SUPREME COURT DECISIONS--BROWN V. OHIO (1977). U.S. V. JACOBSON (1976), U.S. V. SEIJO (1976)--HOLDING THAT NEITHER DUAL STATE-FEDERAL PROSECUTIONS NOR MULTIPLE FEDERAL PROSECUTIONS ARE BARRED BY THE FIFTH AMENDMENT BAN ON DOUBLE JEOPARDY. ALTHOUGH THE POLICY ENVISIONS AN ENLIGHTENED USE OF PROSECUTORIAL DISCRETION TO ASSURE FAIRNESS TO DEFENDANTS AS WELL AS A MINIMUM OF WASTED EFFORT, ITS ADMINISTRATION ALSO CONTAINS THE POTENTIAL FOR UNCHECKED ABUSE. DEFENDANTS ARE VIRTUALLY POWERLESS WHEN CONFRONTED WITH INCONSISTENT APPLICATIONS OF THE POLICY, AND COURTS CAN EXERCISE LITTLE CONTROL WHEN THE GOVERNMENT DISCOVERS ITS OWN ERROR AND SEEKS TO DISMISS AN INDICTMENT OR VACATE A CONVICTION. IN TERMS OF THE BAN ON DUAL STATE-FEDERAL PROSECUTIONS, THE JUSTICE DEPARTMENT SHOULD SPECIFY WHEN A FEDERAL PROSECUTION IS BARRED BY A PRIOR STATE TRIAL. FURTHERMORE, THE 'COMPELLING FEDERAL INTEREST' EXCEPTION SHOULD BE REFINED AND DIRECTED TOWARD THOSE UNIQUELY FEDERAL INTERESTS THAT ARE BEYOND THE POWER OF THE STATES TO ENFORCE EFFECTIVELY. AS FOR MULTIPLE FEDERAL PROSECUTIONS, THE DEPARTMENT SHOULD DEFINE EXPRESSLY WHAT CONSTITUTES A SINGLE CRIMINAL EPISODE AND IDENTIFY EXCEPTIONS TO THIS PORTION OF THE POLICY, INCLUDING CONDITIONS IN WHICH A SINGLE PROSECUTION WOULD BE IMPOSSIBLE. IF THE DEPARTMENT IS UNABLE TO ENFORCE THE POLICY CONSISTENTLY, THE COURTS OR THE CONGRESS CAN INTERVENE TO MANDATE THE POLICY LEGISLATIVELY, INCORPORATE IT INTO THE DOUBLE JEOPARDY CLAUSE, OR ADOPT IT UNDER THE SUPERVISORY POWERS OF THE FEDERAL COURTS. CASE CITATIONS AND OTHER REFERENCES ARE FOOTNOTED. (KBL)