c. The Assimilative Crimes Act (18 USC Section 13).
QUESTION:
WHAT IF A CIVILIAN COMMITTED A CRIME ON AN AREA OF EXCLUSIVE FEDERAL
JURISDICTION, BUT THERE WAS NO APPLICABLE FEDERAL LAW TO PROSECUTE HIM
UNDER?
ANSWER:
AS WE HAVE ALREADY SEEN, THE STATE HAS NO AUTHORITY TO PROSECUTE HERE;
SINCE IT IS AN EXCLUSIVE FEDERAL AREA, ONLY THE FEDERAL GOVERNMENT CAN
PROSECUTE THE OFFENDER.
IF THERE IS NO APPLICABLE FEDERAL LAW TO COVER
THE OFFENSE THAT WAS COMMITTED, THE FEDERAL GOVERNMENT MAY STILL BE ABLE
TO PROSECUTE THE OFFENDER BY VIRTUE OF WHAT IS CALLED "THE ASSIMILATIVE
CRIMES ACT."
THIS STATUTE STATES THAT IN THE ABOVE SITUATION, WE WOULD
THEN LOOK TO STATE LAW.
IF THERE IS NO FEDERAL LAW ON POINT, BUT THE
CRIME IS A VIOLATION OF THE STATE LAW "IN WHICH SUCH PLACE IS SITUATED,"
THEN THE STATE CRIMINAL LAW IS ADOPTED AND ASSIMILATED (MADE A PART OF)
THE FEDERAL CRIMINAL LAW. THE DEFENDANT IS THEN PROSECUTED BY THE FEDERAL
GOVERNMENT, NOT BY THE STATE. REMEMBER, THE STATE DOES NOT HAVE THE POWER
TO PROSECUTE HERE.
This law applies to crimes that are committed on areas of "special
maritime an territorial jurisdiction of the United States," which includes areas
under either exclusive or concurrent jurisdiction (18 USC Section 7).
Similarly under Article 134, if there is no applicable provision of the
UCMJ covering an offense, a soldier may be court-martialed for a violation of a
state law which has been assimilated.
d. Concurrent jurisdiction.
As the name implies, this means that the state
has reserved the right to exercise its authority "concurrently with the United
States." (DA Pam 27-21, paragraph 2-5(b)2.) One who commits a crime here, then,
could be prosecuted by the state government.
He could also be prosecuted by the
federal government.
Remember, BOTH governments have authority here, and the laws
of both apply.
QUESTION:
CAN BOTH THE FEDERAL AND STATE JURISDICTIONS PROSECUTE SOMEONE FOR THE
SAME OFFENSE?
ANSWER:
YES.
THE DOUBLE JEOPARDY PROHIBITION IN THE U.S. CONSTITUTION PREVENTS
MULTIPLE PROSECUTIONS BY THE SAME SOVEREIGN.
THE FEDERAL GOVERNMENT AND
THE STATE GOVERNMENT REPRESENT TWO SEPARATE SOVEREIGN ENTITLES.
An interesting example of this principle is Heath v. Alabama, 474 US 82, 88
LEd 2d 387, 106 SCt 433 (1985). The victim was kidnapped in Alabama, but her body
was found in Georgia (after she had been murdered in Georgia). Both states pursued
an investigation into the matter.
The defendant was arrested in Georgia and
prosecuted for "malice murder."
He was convicted and given a life sentence.
He
was then prosecuted by Alabama for the crime of "murder during a kidnapping."
Although the kidnapping itself began in Alabama, the murder had occurred in
Georgia. The Alabama law, however,
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