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Defenses – “Statutory Double Jeopardy,” § 939.71 – As Compared with § 961.45

State v. Jesse H. Swinson, 2003 WI App 45, PFR filed 3/24/03
For Swinson: Pamela Pepper

Issue/Holding: Greater statutory double jeopardy protection afforded drug prosecution under § 961.45 than non-drug prosecution under § 939.71 doesn’t violate equal protection:

¶55. We note that while Wis. Stat. § 939.71 adheres to the dual sovereignty doctrine, Wis. Stat. § 961.45 does not. We therefore conclude, as the supreme court did in Petty, that § 961.45 is representative of the type of legislation instituted by our legislature seeking to preclude continuing prosecution in the drug arena as is otherwise permitted under the doctrine of dual sovereignty. See Petty, 201 Wis. 2d at 358-59. That is, in deciding not to abrogate the dual sovereignty doctrine in nondrug cases, the legislature could have rationally considered that in the nondrug arena the interests of the state and federal governments are different. Swinson has not persuaded us of the unconstitutionality of § 939.71 as applied to him.

This passage is more assertion than explanation. Why are the interests in drug and non-drug prosecutions different? The state’s argument – that federal authorities are more likely to be involved in drug than non-drug prosecutions, ¶51 – makes sense, indeed, is supported by the legislative history to § 961.45, State v. Hansen, 2001 WI 53, 36, 243 Wis. 2d 328, 627 N.W.2d 195. But even that view (which the court doesn’t quite seem to embrace) still begs the question. Maybe the greater frequency and likelihood of federal intervention in drug prosecutions somehow supports an inhibition on dual sovereignty in that limited context. Maybe … but this isn’t exactly a self-evident proposition and would have to be fleshed out. So, the holding appears to be a result in search of a rationale.


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