According to Wiki:

The separate sovereigns doctrine holds that because the federal and state government are "separate sovereigns", the Double Jeopardy Clause does not apply to prosecution of the same crime under both federal and state laws. The doctrine can be seen in mid 20th century Supreme Court decisions; the 1959 cases of Abbate v. United States and Bartkus v. Illinois ruled in affirmation of the doctrine.

Lets say the Supreme Court rules that double jeopardy rules should apply even if the crime is prosecutable under both federal and state laws. In this case, how could the federal and state governments possibly agree on who gets to prosecute a given crime? Are there examples of other countries solving a similar issue in their jurisdiction?

As an example, lets say Washington state wants to protect its marijuana industry against federal prosecution. It then creates a law mandating a $500 fine for anyone found violating federal marijuana laws. Now anyone who needs to get rid of federal prosecution could just plea guilty to a state court, pay a $500 fine and walk away scot free. The federal government could pull off a similar trick to undermine state laws.

  • The federal and state governments have in practice already worked this out, though with the current benefit that if the non-prosecuting power decides the prosecuting power failed to secure adequate punishment of the crimes then they may press charges of their own. Sep 30, 2018 at 14:48
  • it bears mentioning that in the case you described, an appeals court may strike down the Washington law on supremacy grounds, if it's purpose was in fact to undermine federal law. Jul 24, 2023 at 18:12

2 Answers 2


Absent newly enacted law in response to the end of the separate sovereigns doctrine, the first case to which jeopardy attaches (generally speaking when a jury is sworn and the first item of evidence is presented to it) would bar subsequent prosecutions, without regard to whether it arose in state or federal court. It would be a race to the court house rule.

This is how it works if there are multiple prosecutions within a state, for example, one commenced in a municipal court that is not part of a state court system, and another commenced in a state court of general jurisdiction.


When there is a conflict state v. federal, federal law always triumphs. This is called Supremacy clause, and it is part of article VI of the U.S. Constitution.

However, the state has authority to create its own laws, and regulate it's own internal commerce. Federal government cannot prohibit the State from giving out licenses to grow marijuana, or sell it within the state, at least in my opinion. See Tenth Amendment.

There is of course opinions of others, who might differ with it, especially those of Jefferson B. Sessions the III. (The Attorney General of the U.S.)

In order to force the state to do what the federal government wants to do, the federal government uses the spending clause, to cut or lower federal budget given to the state.

  • 4
    The issue related to double jeopardy does not flow from the Supremacy Clause. For example, there is a similar doctrine called "res judicata" that applies in civil cases and under that doctrine a resolution of a civil dispute in state court deprives federal courts of the authority to revisit the civil dispute between the parties, even on another legal theory, in a separate action. The Supremacy clause could probably support a federal law allowing the feds to enjoin pending state court cases that would have double jeopardy preclusion effects for federal criminal cases, but not the simple case.
    – ohwilleke
    Aug 21, 2019 at 19:18

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