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The protection from double jeopardy contained in the Fifth Amendment to the United States Constitution provides, in part, the following: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb...." n1 However, there is an exception to the Double Jeopardy Clause. When a defendant in a single act violates the "peace and dignity" of two sovereignties by breaking the laws of each, he has committed two distinct "offenses." n2 This principle, known as the Dual Sovereignty Doctrine, permits successive prosecutions by two sovereignties for the same "act." n3
A. History of Double Jeopardy and its Theories
The concept of Double Jeopardy can be traced back for thousands of years; as far back as the Greek Civilization. The law of Athens held that, once tried, a person could not be prosecuted again on the same charge. n4 A similar concept appeared in the laws of the Roman Republic. n5
Why has this concept remained so steady throughout the ages? Why is this guarantee so important in our society? When looking at the framework of the United States Constitution, one sees that other Bill of Rights guarantees affect different parts of the criminal process. The privilege against self-incrimination and the fourth amendment, for example, limit the government's capability to gather evidence. The double jeopardy clause, however, protects against using the criminal process itself to oppress individuals. Being free from oppression has long been at the forefront of coveted rights sought after by the common man.
Multiple use of the criminal process has two distinct forms: Multiple convictions after a single trial, and instituting successive trials. Therefore, the underlying theory of what value double jeopardy possesses could be either to limit punishment for one crime or to promote a more efficient judicial process and obtaining more finality by limiting trials. James Madison's original double jeopardy language forbid "more than one punishment or trial" for the same offense. n7 This language supports both the punishment and efficiency/finality rationales. The United States Supreme Court has suggested that finality is the "heart" of the double jeopardy clause. n8 The functional triviality of a double jeopardy limitation on punishment argues in favor of finality as the primary double jeopardy value.
II. DUAL SOVEREIGNTY DOCTRINE
The dual sovereignty doctrine, as originally articulated and consistently applied by the United States Supreme Court, concludes that successive prosecutions by two States for the same conduct are not barred by the Double Jeopardy Clause. n10 The Court has also held that under the dual sovereignty doctrine, federal and state governments may separately prosecute and punish crimes. n11 The dual sovereignty doctrine is founded on the common-law principal of crime being an offense against the sovereignty of the government. When a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offences." n12
In applying the dual sovereignty doctrine, the United States Supreme Court stated that, the crucial determination is whether the two entities that seeks successively to prosecute a defendant for the same conduct can be termed separate sovereigns. n13 This determination turns on whether the two entities draw their authority to punish the offender from distinct sources of power. n14
III. EXCEPTIONS TO DUAL SOVEREIGNTY
There are exceptions to the Dual Sovereignty Doctrine. One is the Bartkus Exception in which a defendant could not reasonably claim that the state "was merely a tool of the federal authorities" or that "the state prosecution was a sham and a cover for a federal prosecution." n16 Another exception and the one upon which this discussion is based is "municipal-State" exception, which sets forth the principal that municipal, city, or local governments are not considered separate sovereigns under the Dual Sovereignty Exception. n17 Specifically, because the judicial power of both the city and the state government was derived from the same "organic law." n18
A. The Bartkus Exception
In Bartkus v. Illinois, the United States Supreme Court recognized the potential for so-called "sham prosecutions" in which the second prosecution acts as a tool of the first. n19 The Court in Bartkus did not find evidence of such unlawful activity, but stated that the double jeopardy clause would bar successive prosecutions where the "state prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution." n20
B. Municipal-State Exception
The "dual sovereignty" concept does not apply, however, in every instance where successive cases are brought by different prosecuting entities. n23 In Grafton v. United States, for instance, the United States Supreme Court held that a soldier who had been acquitted of murder by a federal court-martial could not be retried for the same offense by a territorial court in the Philippines. n24
In Waller v Florida, the United States Supreme Court held that the defendant's trial for grand larceny in the State Court, which had been based on the same acts as an earlier conviction in a municipal court within that State, for the lesser included offenses of destruction of city property and disorderly breach of the peace, constituted double jeopardy in violation of the Federal Constitution's Fifth Amendment. n25 The Supreme Court indicated that the state and municipal courts were part of the same sovereign entity. n27 According to the Supreme Court, states' political subdivisions have never been considered separate sovereign entities; but rather, traditionally regarded as subordinate governmental entities created by the states. n28 The Court also pointed out that some provisions of the constitution of the state in the case at hand demonstrated that the judicial power to try the accused in municipal court arose from the same organic law that had created the state court of general jurisdiction in which the accused had been tried and convicted. n29 The Supreme Court, in analogizing the relationship between a municipal government and the State government stated: "The apt analogy to the relationship between municipal and state governments is to be found in the relationship between the government of a Territory and the Government of the United States. n30
C. The Blockburger Test
the United States Supreme Court in Blockburger v. United States, formulated the test that is most frequently used to determine whether two offenses are the same for double jeopardy purposes in which the Court stated, "Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." n33 The Court further stated, "If each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." n34
IV. RHODE ISLAND AND DUAL SOVEREIGNTY
The Rhode Island Supreme Court in State v. Trivisonno recognized that Waller was the controlling law with regards to municipal and State sovereignties. n37 The Court stated "Notwithstanding our decision in State v. Pearson, supra, the state's first argument is without merit in view of the decision... in Waller..., which is controlling in this case." n38 In fact, the Rhode Island Supreme Court also state that the standard used for our jurisdiction in determining whether an accused is in danger of being twice placed in jeopardy for the same offense was set forth by Blockburger. n39
B. Rhode Island Dual Sovereignty Controlling Law
The Standard in Rhode Island for determining whether an accused is in danger of double jeopardy, in violation of R.I. Const. Art. 1, § 7, is the same standard that is found in Federal law established by the Blockburger test. N40 The Rhode Island Supreme Court stated in State v. Rodriguez, that because of the similar wording and purpose underlying § 7 and the U.S. Constitution amendment V, Rhode Island cases are closely intertwined to United States double-jeopardy law when applying R.I. Const. art. 1, § 7.
B. Potential Constitutional Violations
However, there still remains the possibility that a violation of the Double Jeopardy Clause could happen with the State of Rhode Island. For example, in State v. Manning, the Superior Court Justice possibly erred in ruling that a Providence ordinance for disorderly conduct was valid. n43 The pertinent part of the Rhode Island General Law § 11-45-1 states:
(4) Alone or with others, obstructs a highway, street, sidewalk, railway, waterway, building entrance, elevator, aisle, stairway, or hallway to which the public or a substantial group of the public has access or any other place ordinarily used for the passage of persons, vehicles, or conveyances;
The pertinent part of the Providence Code of Ordinances § 16-13 states:
(a) No person shall stand on any footwalk, sidewalk, parking lot, doorstep or in any doorway in this city as to obstruct a free passage for foot passengers; or to hinder or delay, passers-by or persons residing or doing business in the vicinity thereof.
The defendant referred to Rhode Island General Law 1956 (1991 Reenactment) § 45-6-6, which states:
Offenses punishable by state law. - No ordinance or regulation whatsoever, made by a town council, shall impose or at any time be construed to continue to impose, any penalty for the commission or omission of any act punishable as a crime, misdemeanor, or offense, by the statute law of the state or violation of the state statutes relating to motor vehicles and traffic offenses.
In rebuttal to the defendant's argument, the Superior Court Justice pointed to that Rhode Island General Law § 45-6-1 when stating that the defendant failed to recognize § 45-6-1 which specifically allows the City of Providence to regulate conduct proscribed by Sec. 16-13. Rhode Island General Laws § 45-6-1 states in pertinent part:
Scope of ordinances permissible. -- (a) Town councils and city councils may, from time to time, make and ordain all ordinances and regulations for their respective towns, not repugnant to law, which they may deem necessary... to prevent persons standing on any footwalk, sidewalk, doorstep, or in any doorway... to the obstruction, hindrance, delay, disturbance, or annoyance of passersby or of persons residing or doing business in the vicinity thereof... and, generally, all other ordinances, regulations and bylaws for the well ordering, managing, and directing of the prudential affairs and police of their respective towns, not repugnant to the constitution and laws of this state, or of the United States...
n44
However, the Superior Court Justice failed to recognize the potential for violation of the Double Jeopardy Clause and the exception to the Dual Sovereignty Doctrine set forth in Waller.
There are other more blatant potentials for violation of the Double Jeopardy Clause found within the cities and towns of Rhode Island. Both the Town of Johnston Ordinance § 245-4, and the Town of Westerly Ordinance § 182-10, which identically states in pertinent part:
Disorderly conduct. A. A person commits disorderly conduct if he intentionally, knowingly, or recklessly: (1) Engages in fighting or threatening, or in violent or tumultuous behavior; or
(2) In a public place or near a private residence that he has no right to occupy, disturbs another person by making loud and unreasonable noise which under the circumstances would disturb a person of average sensibilities; or
(3) Directs at another person in a public place offensive words which are likely to provoke a violent reaction on the part of the average person so addressed; or
(4) Alone or with others, obstructs a highway, street, sidewalk, railway, waterway, building entrance, elevator, aisle, stairway or hallway to which the public or a substantial group of the public has access or any other place ordinarily used for the passage of persons, vehicles or conveyances; or
(5) Engages in conduct which obstructs or interferes physically with a lawful meeting, procession or gathering; or
(6) Enters upon the property of another and for a lascivious purpose looks into an occupied dwelling on the property through a window or other opening; or
(7) Exposes his genitals to the view of others under circumstances in which his conduct is likely to cause affront, distress or alarm to such other persons.
Compare Rhode Island General Law § 11-45-1, which states in pertinent part:
§ 11-45-1. Disorderly conduct (a) A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly:
(1) Engages in fighting or threatening, or in violent or tumultuous behavior;
(2) In a public place or near a private residence that he or she has no right to occupy, disturbs another person by making loud and unreasonable noise which under the circumstances would disturb a person of average sensibilities;
(3) Directs at another person in a public place offensive words which are likely to provoke a violent reaction on the part of the average person so addressed;
(4) Alone or with others, obstructs a highway, street, sidewalk, railway, waterway, building entrance, elevator, aisle, stairway, or hallway to which the public or a substantial group of the public has access or any other place ordinarily used for the passage of persons, vehicles, or conveyances;
(5) Engages in conduct which obstructs or interferes physically with a lawful meeting, procession, or gathering;
(6) Enters upon the property of another and for a lascivious purpose looks into an occupied dwelling or other building on the property through a window or other opening; or
(7) Exposes his or her genitals to the view of others under circumstances in which his or her conduct is likely to cause affront, distress, or alarm to the other persons.
Disorderly conduct ordinances in the Town of Lincoln, and the City of Warwick goes so far as referencing the Rhode Island General Law § 11-45-1. n45 The Rhode Island General Law and the ordinances of Johnston and Westerly are all identical. A Court would certainly rule in the event that a defendant is charged with both, that these ordinances would be a violation of the Double Jeopardy Clause, due to failing even the "Blockburger test" because the Ordinance does not require proof of an additional fact which § 11-45-1 does not. n46
V. POSSIBLE REMEDIES FOR CONFLICTING ORDINANCES
Ordinances like the Johnston and Westerly Town Ordinances could avoid violating the United States Constitution if town solicitors advise the town council to amend the ordinance as to not mimic the Rhode Island General Law. Reform starts at the local level and as such, the solicitor has the ability to help shape the local laws of Rhode Island to be free from being susceptible to a Fifth Amendment violation.
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