A BLOG from our #ABKLaw Partner Hon. Barry Kamins: Presidential Pardons and the Double Jeopardy Loophole
Under the Double Jeopardy Clause of the Federal and State Constitution the government is not permitted to make multiple attempts to try an individual for the same offense. Many states do allow a prosecution for a crime following a federal prosecution, under the “dual sovereignty” doctrine. New York, however, has a more liberal statute that prohibits a state prosecution following a federal prosecution based upon the same act or criminal transaction.
As a result, an individual who has pled guilty to a federal crime or who has been convicted after trial in federal court, will not be prosecuted in New York for the same crime under New York law. What happens if the President then pardons that person after he or she has been prosecuted federally? It is possible that the pardon would then result in letting that person escape punishment under both federal and state law.
Currently there is a discussion among legislators to introduce a bill that would close this double jeopardy loophole.
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