The geographic area over which authority extends; legal authority; the authority to hear and determine causes of action.
Jurisdiction generally describes any authority over a certain area or certain persons. In the law, jurisdiction sometimes refers to a particular geographic area containing a defined legal authority. For example, the federal government is a jurisdiction unto itself. Its power spans the entire United States. Each state is also a jurisdiction unto itself, with the power to pass its own laws. Smaller geographic areas, such as counties and cities, are separate jurisdictions to the extent that they have powers that are independent of the federal and state governments.
Jurisdiction also may refer to the origin of a court's authority. A court may be designated either as a court of general jurisdiction or as a court of special jurisdiction. A court of general jurisdiction is a trial court that is empowered to hear all cases that are not specifically reserved for courts of special jurisdiction. A court of special jurisdiction is empowered to hear only certain kinds of cases.
Courts of general jurisdiction are often called district courts or superior courts. In New York State, however, the court of general jurisdiction is called the Supreme Court of New York. In most jurisdictions, other trial courts of special jurisdiction exist apart from the courts of general jurisdiction; some examples are probate, tax, traffic, juvenile, and, in some cities, drug courts. At the federal level, the district courts are courts of general jurisdiction. Federal courts of special jurisdiction include the u.s. tax court and the bankruptcy courts.
Jurisdiction can also be used to define the proper court in which to bring a particular case. In this context, a court has either original or appellate jurisdiction over a case. When the court has original jurisdiction, it is empowered to conduct a trial in the case. When the court has appellate jurisdiction, it may only review the trial court proceedings for error.
Generally, courts of general and special jurisdiction have original jurisdiction over most cases, and appeals courts and the jurisdiction's highest court have appellate jurisdiction, but this is not always the case. For example, under Article III, Section 2, Clause 2, of the U.S. Constitution, the U.S. Supreme Court is a court of appellate jurisdiction. However, under the same clause, that court has original jurisdiction in cases between states. Such cases usually concern disputes over boundaries and waterways.
Finally, jurisdiction refers to the inherent authority of a court to hear a case and to declare a judgment. When a plaintiff seeks to initiate a suit, he or she must determine where to file the complaint. The plaintiff must file suit in a court that has jurisdiction over the case. If the court does not have jurisdiction, the defendant may challenge the suit on that ground, and the suit may be dismissed, or its result may be overturned in a subsequent action by one of the parties in the case.
A plaintiff may file suit in federal court; however, state courts generally have concurrent jurisdiction. Concurrent jurisdiction means that both the state and federal court have jurisdiction over the matter.
If a claim can be filed in either state or federal court, and the plaintiff files the claim in state court, the defendant may remove the case to federal court (28 U.S.C.A. §§ 1441 et seq.). This is a tactical decision. Federal court proceedings are widely considered to be less susceptible to bias because the jury pool is drawn from the entire state, not just from the local community.
State courts have concurrent jurisdiction in most cases. Federal courts have exclusive jurisdiction in a limited number of cases, such as federal criminal, antitrust, bankruptcy, patent, copyright, and some admiralty cases, as well as suits against the U.S. government.
Under federal and state laws and court rules, a court may exercise its inherent authority only if it has two types of jurisdiction: personal and subject matter. personal jurisdiction is the authority that a court has over the parties in the case. subject matter jurisdiction is a court's authority over the particular claim or controversy.
State Civil Court Jurisdiction
Personal Jurisdiction Personal jurisdiction is based on territorial concepts. That is, a court can gain personal jurisdiction over a party only if the party has a connection to the geographic area in which the court sits. Traditionally, this connection was satisfied only by the presence of the defendant in the state where the court sat. Since the late nineteenth century, notions of personal jurisdiction have expanded beyond territorial concepts, and courts may gain personal jurisdiction over defendants on a number of grounds. However, the territorial basis remains a reliable route to establishing personal jurisdiction.
A person who has a civil claim may file suit in a court that is located in his or her home state. If the defendant lives in the same state, the court will have no trouble gaining personal jurisdiction. The plaintiff must simply serve the defendant with a summons and a copy of the complaint that was filed with the court. Once this is accomplished, the court has personal jurisdiction over both the plaintiff and the defendant. If the defendant lives outside the state, the plaintiff may serve the defendant with the process papers when the defendant appears in the state.
If the defendant lives outside the state and does not plan to re-enter the state, the court may gain personal jurisdiction in other ways. Most states have a long-arm statute. This type of statute allows a state court to gain personal jurisdiction over an out-of-state defendant who (1) transacts business within the state, (2) commits a tort within the state, (3) commits a tort outside the state that causes an injury within the state, or (4) owns, uses, or possesses real property within the state.
The emergence of the internet as a way to communicate ideas and sell products has led to disputes over whether state long-arm statutes can be used to acquire personal jurisdiction over an out-of-state defendant. In Zippo Manufacturing v. Zippo Dot Com, 952 F. Supp.1119 (W.D.Pa.1997), a U.S. District Court proposed that a long-arm statute could be used only when the defendant has either actively marketed a product or the web site has a degree of interactivity that suggests the website seeks to do business. Conversely, a passive web site, where information is merely posted, would not subject a person to the reach of a long-arm statute.
In Pavlovich v. Superior Court, 59 Cal.4th 262, 58 P.3d 2, 127 Cal.Rptr.2d 329 (Cal. 2002), the California Supreme Court ruled that an out-of-state web site operator who had posted software that allowed users to decrypt and copy digital versatile discs (DVDs) containing motion pictures could not be sued in California state court. The operator, who lived in Texas, did not solicit business or have any commercial contact with anyone in California. The court relied on the Zippo sliding scale and concluded that Pavlovich fell into the passive category. The web site "merely posts information and has no interactive features. There is no evidence in the record suggesting that the site targeted California. Indeed, there is no evidence that any California resident ever visited, much less downloaded" the software. Even if he had known that the software would encourage piracy, this substantive issue did not effect the threshold question of jurisdiction. Therefore, the lawsuit had to be dismissed for lack of personal jurisdiction.
The Minnesota Supreme Court took up the question of Internet jurisdiction in the context of a defamation lawsuit in Griffis v. Luban, 646 N.W.2d 527 (Minn. 2002). Katherine Griffis, a resident of Alabama, filed a defamation lawsuit against Marianne Luban, a Minnesota resident, in Alabama state court. Griffis won a default judgment of $25,000 for statements that Luban had made on the Internet. Luban elected not to appear in the Alabama proceeding, and Griffis then filed her judgment in the Minnesota county where Luban resided. Luban then filed a lawsuit challenging the judgment for want of personal jurisdiction. The Minnesota Supreme Court concluded that the key jurisdiction question was whether Luban had targeted the state of Alabama when she made her defamatory statements. The Court found that while Luban knew that Griffis lived in Alabama, she had not "expressly aimed" her statements at the state of Alabama. Instead, she had published these statements to a specialized Internet newsgroup, one that only had Griffis as a member from Alabama. The court stated: "The fact that messages posted to the newsgroup could have been read in Alabama, just as they could have been read anywhere in the world, cannot suffice to establish Alabama as the focal point of the defendant's conduct." Therefore, Griffis had not established personal jurisdiction over Luban in Alabama, and the Minnesota state courts were not obliged to enforce the Alabama judgment.
If an out-of-state defendant caused an injury while driving inside the state, the court may gain personal jurisdiction over the defendant on the theory that the defendant consented to such jurisdiction by driving on the state's roads. Many states have statutes that create such implied consent to personal jurisdiction.
When the defendant is a corporation, it is always subject to personal jurisdiction in the courts of the state in which it is incorporated. If the corporation has sufficient contacts in other states, courts in those states may hold that the out-of-state corporation has consented to personal jurisdiction through its contacts with the state. For example, a corporation that solicits business in other states or maintains offices in other states may be subject to suit in those states, even if the corporation is not headquartered or incorporated in those states. A corporation's transaction of business in a foreign state is a sufficient contact to establish personal jurisdiction.
In actions concerning real property located within the state, state courts may use additional means to gain personal jurisdiction over out-of-state defendants. A state court may gain personal jurisdiction over all parties, regardless of their physical location, in a dispute over the title to real property. This type of personal jurisdiction is called in rem, or "against the thing." Personal jurisdiction over all parties interested in the real property is gained not through the parties but through the presence of the land in the court's jurisdiction.
If a court cannot gain personal jurisdiction over an out-of-state defendant, the plaintiff may be forced to sue the defendant in the state in which the defendant resides or in the state where the injury occurred. For example, a plaintiff who was injured outside his or her home state may have to file suit in the defendant's home state or in the state where the injury occurred if the defendant has no plans to enter the plaintiff's home state.
Subject Matter Jurisdiction Courts of general jurisdiction have subject matter jurisdiction over the majority of civil claims, including actions involving torts, contracts, unpaid debt, and civil rights violations. Courts of general jurisdiction do not have subject matter jurisdiction over claims or controversies that are reserved for courts of special jurisdiction. For example, in a state that has a probate court, all claims involving wills and estates must be brought in the probate court, not in a court of general jurisdiction.
In some cases, a claim must first be heard by a special administrative board before it can be heard by a court. For example, a workers' compensation claim in most states must be heard by a workers' compensation board before it can be heard in a court of general jurisdiction.
Another consideration in establishing subject matter jurisdiction is the amount in controversy. This is the total of all claims, counterclaims, and cross-claims in the suit. (A counterclaim is a claim by a defendant against a plaintiff; a cross-claim is a claim by a plaintiff against another plaintiff, or by a defendant against another defendant.) In most jurisdictions, if the amount in controversy does not exceed a certain limit, the case must be heard by a court other than a court of general jurisdiction. This court is usually called a small claims court. The rules in such a court limit the procedures that are available to the parties so that the court can obtain a simple and speedy resolution to the dispute.
Federal Civil Court Jurisdiction
Personal Jurisdiction To obtain personal jurisdiction over the parties, a federal court follows the procedural rules of the state in which it sits. For example, a federal court in Michigan follows the Michigan state court rules governing personal jurisdiction. The court examines the usual factors in establishing personal jurisdiction, such as the physical location of the parties, the reach of the state's long-arm statute, any consent to personal jurisdiction by the defendant, or the location of real property in a dispute over real property.
Subject Matter Jurisdiction In some cases a plaintiff may file suit in federal court. These cases are limited to (1) claims arising from the U.S. Constitution or federal statutes (federal question jurisdiction), (2) claims brought by or against the federal government, and (3) claims in which all opposing parties live in different states and the amount in controversy exceeds $75,000 (diversity jurisdiction). A federal court obtains subject matter jurisdiction over a case if the case meets one or more of these three requirements.
Claims arising from the U.S. Constitution or federal statutes Federal question jurisdiction is covered in 28 U.S.C.A. § 1331. This statute provides that federal district courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Some claims are expressly identified as federal in the Constitution. These claims include those involving ambassadors and consuls or public ministers, admiralty and maritime claims, and claims made by or against the federal government. Claims that are based on federal law also may be filed in federal court. An action against the federal government based on the negligence of a federal employee, for example, is authorized by the federal tort claims act of 1946 (60 Stat. 842 [28 U.S.C.A. § 1346(b), 2674]).
The U.S. Supreme Court, in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 122 S. Ct. 1889, 153 L. Ed. 2d 13 (2002), issued a landmark decision on "arising under" jurisdiction of the federal courts. The case involved patent law litigation between two competitors, with the plaintiff filing a declaratory judgment action in federal district court asking the court to declare that the plaintiff had not infringed the defendant's trade dress. This action was not based on a federal law but the defendant's counterclaim, in which it invoked federal patent law to allege patent infringement by the plaintiff, seemed to give the court "arising under" jurisdiction. The Court thought otherwise, ruling that the counterclaim did not confer federal jurisdiction and that the case must be dismissed. This decision limits the "arising under" jurisdiction of the federal courts and gives state courts the opportunity to hear copyright and patent actions (through a defendant's counterclaim) that have always been heard in the federal courts.
Some cases may combine federal and state issues. In such cases, no clear test exists to determine whether a party may file suit in or remove a suit to federal court. Generally, federal courts will decline jurisdiction if a claim is based predominantly on state law. For example, assume that a plaintiff is embroiled in a property dispute with a neighbor. The plaintiff files suit against the neighbor, alleging state-law claims of nuisance, trespass, breach ofcontract, and assault. A state official advises the plaintiff that the property belongs to the neighbor (the defendant). If the plaintiff sues the state official in the same suit, alleging a constitutional violation such as the uncompensated taking of property, a federal court may refuse jurisdiction because the case involves predominantly state law.
Federal courts may decline jurisdiction on other grounds if a state court has concurrent jurisdiction. When they do so, they are said to abstain, because they are refraining from exercising their jurisdiction. Federal courts tend to abstain from cases that require the interpretation of state law, if state courts can decide those cases. Federal courts abstain in order to avoid answering unnecessary constitutional questions, to avoid conflict with state courts, and to avoid making errors in determining the meaning of state laws.
Claims brought by or against the federal government Generally, the United States may sue in federal court if its claim is based on federal law. For example, if the federal government seeks to seize the property of a defendant in a drug case, it must base the action on the federal forfeiture statute, not on the forfeiture statute of the state in which the property lies.
Generally, state and federal governments have sovereign immunity, which means that they may not be sued. However, state and federal governments may consent to suit. At the federal level, Congress has removed the government's immunity for injuries resulting from the negligent and, in some cases, intentional conduct of federal agencies, federal officers, and other federal employees (60 Stat. 842 [28 U.S.C.A. § 1346(b), 2674, 2680]). Generally, the federal government is liable only for injuries resulting from the performance of official government duties.
If Congress has not waived federal immunity to certain suits, a person nevertheless may file suit against the agents, officers, or employees personally. For example, the U.S. Supreme Court has held that federal agents, officers, and employees who violate constitutional rights may be sued for damages in federal court (Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 ).
Claims in which all opposing parties live in different states and the amount in controversy exceeds $75,000 Diversity cases provide federal courts with subject matter jurisdiction under 28 U.S.C.A. § 1332. A civil case qualifies as a federal diversity case if all opposing parties live in separate states and the amount in controversy exceeds $75,000. If the opposing parties live in the same state, the case may still qualify for federal subject matter jurisdiction if there is some remaining citizenship diversity between parties. For example, assume that a person is acting as a stakeholder by holding property for a third party. If ownership of the property is in dispute, the stakeholder may join the defendants in the suit to avoid liability to any of the parties. Such a case may be filed in federal court if a defendant lives in a different state, even if one of the defendants lives in the same state as the stakeholder or in the same state as the other defendants.
State and Federal Criminal Court Jurisdiction
Personal Jurisdiction Personal jurisdiction in a criminal case is established when the defendant is accused of committing a crime in the geographic area in which the court sits. If a crime results in federal charges, the federal court that sits in the state where the offense was committed has personal jurisdiction over the defendant. In a conspiracy case, the defendants may face prosecution in any jurisdiction in which a conspiratorial act took place. This can include a number of states if at least one conspirator crossed state lines or if the conspiracy involved criminal acts in more than one state. kidnapping is another crime that can establish personal jurisdiction in courts in more than one state, if it involves crossing state lines.
Subject Matter Jurisdiction In criminal cases, the question of jurisdiction is relatively simple. Subject matter jurisdiction is easily decided because criminal courts or the courts of general jurisdiction have automatic subject matter jurisdiction over criminal cases. In most states, minor crimes may be tried in one court, and more serious crimes in another. In Idaho, for example, criminal cases are tried in the district courts. However, misdemeanor cases may be assigned by the district court to a magistrate (Idaho Code § 1-2208 ). (A magistrate is a judge who is authorized to hear minor civil cases and to decide criminal matters without a jury.)
The major question in criminal subject matter jurisdiction is whether the charges are pursuant to federal or state law. If the charges allege a violation of federal criminal law, the defendant will be tried in a federal court that is located in the state in which the offense was committed. If the charges allege a violation of state law, the defendant will face prosecution in a trial court that has jurisdiction over the area in which the offense was committed. If a crime violates both federal and state law, the defendant may be tried twice: once in state court, and once in federal court.
Venue is similar to, but separate from, jurisdiction. The venue of a case is the physical location of the courthouse in which the case is tried. If more than one court has both subject matter and personal jurisdiction over a case, the court that first receives the case can send the case, upon request of one of the parties, to a court in another jurisdiction. Unlike jurisdiction, venue does not involve a determination of a court's inherent authority to hear a case.
Meslar, Roger W., ed. 1990. Legalines Civil Procedure. 3d ed. Chicago, Ill.: Harcourt Brace Jovanovich Legal and Professional Publications.
Wildasin, Mark H., and Richard A. Jones. 2001. "Internet Jurisdiction." Journal of Internet Law (December).
"Jurisdiction." West's Encyclopedia of American Law. 2005. Encyclopedia.com. (August 27, 2016). http://www.encyclopedia.com/doc/1G2-3437702500.html
"Jurisdiction." West's Encyclopedia of American Law. 2005. Retrieved August 27, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3437702500.html
The U.S. federal, state, and even local governments have adapted the territorial reach of their criminal laws to permit punishment of "new and complex crimes" when elements of extraterritoriality exist. The proactive extension of its extraterritorial jurisdiction has resulted in transformation of the law of jurisdiction and has led to occasional tension with other governments. While this discussion concerns primarily federal law, similar developments have occurred on a subnational level, where states and even municipalities continually expand their jurisdiction to meet criminal threats from an increasingly borderless world, where technology, transportation, and free-trade developments enable criminals to move money, capital, goods, people, and ideas instantaneously.
This discussion outlines the conceptual bases of jurisdiction and then applies it to recent developments in U.S. law, especially with respect to terrorism, narcotics, and alien smuggling. The article also describes the jurisdiction of military courts-martial, the use of proactive investigative and policing techniques abroad, the limits on the enforcement of foreign penal judgments, and basic principles governing jurisdiction between state and federal courts, and conflict-of-laws in the criminal context.
Generally there is no constitutional bar to the extraterritorial application of domestic penal laws. Prosecutors, if challenged, must be able to show that congressional intent of extraterritorial scope is clear and that the application of the statute to the acts in question does not violate the due process clause of the Fifth Amendment.
Jurisdiction is the power of the state to prescribe and punish crimes, the power of the executive to apply and enforce laws, and the power of courts to adjudicate cases. Since a state's criminal law has no force and effect beyond its territorial limits, except for universal crimes, a criminal offense committed in one state cannot be prosecuted in another. The threshold issue of whether a court has jurisdiction to resolve a pending controversy is fundamental. A court cannot act outside its authority or jurisdiction. Each court has jurisdiction to determine whether it has jurisdiction. If a court determines it has no jurisdiction to decide the merits of a case, the appropriate action is to dismiss.
The five traditional bases of jurisdiction over extraterritorial crimes are: territorial, nationality, protective, passive personality, and universal. Under the "territorial theory," jurisdiction applies to conduct or the effect of which occurs within the territorial boundaries of the state. When an element of an offense occurs within a state, that state has jurisdiction based on subjective territoriality. When an effect or result of criminal conduct impacts the state, but the other elements of the offense occur wholly beyond its territorial boundaries, that state has jurisdiction based on objective territoriality. The "nationality theory" bases jurisdiction on the allegiance or nationality of the perpetrator of offenses proscribed by the state of his allegiance, no matter where the offense occurs. The "protective principle" applies whenever the criminal conduct has an impact on or threatens the asserting state's sovereignty, security, or some important governmental function. The "passive personality theory" applies merely on the basis of the victims nationality. The United States and many other nations have rejected this basis of jurisdiction, although they increasingly have started to invoke it, especially with respect to terrorist crimes. The "universality theory" permits any forum to assert jurisdiction over particularly heinous or universally condemned acts (e.g., genocide and crimes against humanity), when no other state has a prior interest in asserting jurisdiction.
The expansion of the theoretical bases of jurisdiction to prescribe, which is based on the thwarted extraterritorial narcotics conspiracy aimed at importation of narcotics into the United States, has been criticized. Various U.S. judicial decisions have expanded the objective territoriality theory to include offenses intended to have an effect on the United States, such as thwarted extraterritorial conspiracies. The decisions are the subject of criticism because, being thwarted, the offenses never actually cause such an effect. Because the extraterritorial conspiracy is thwarted, it arguably causes no significant effect on the asserting state's territory and does not give it jurisdiction.
To combat international narcotics trafficking, the U.S. Congress and the courts have expanded extraterritorial jurisdiction In addition to asserting jurisdiction over thwarted extraterritorial conspiracies, they have enacted laws with extraterritorial jurisdiction over new crimes, such as money laundering, even when such crimes have limited connection with the United States.
In the arrest of General Manuel Noriega, the president of Panama, for narcotics offenses, the United States sent troops into Panama, killing innocent civilians to arrest Noriega. The Noriega case is one of the most celebrated modern examples of the expansion of U.S. extraterritorial jurisdiction because of the use of so much force to arrest a head of state for acts that occurred in Panama (Andreas, p. 37).
In August 1986, the United States enacted the Omnibus Diplomatic Security Act of 1986, providing jurisdiction to extradite or prosecute perpetrators of international terrorism. The act provides for the U.S. prosecution of persons who kill U.S. nationals abroad when the offense was "intended to coerce, intimidate, or retaliate against a government or a civilian population." Hence, U.S. jurisdiction is provided even though the actions occur abroad.
The continued expansion of U.S. territorial jurisdiction to combat organized crime was reflected in U.S. Attorney Zachary W. Carter's announcement on 7 October 1997 of stricter interpretation of U.S. jurisdiction over its territorial waters with regard to regulating casino boats. The new interpretation required casino boats that sail from New York City to travel at least twelve miles from shore before passengers could start gambling. New York City Mayor Rudolph W. Giuliani had urged federal officials to invoke the twelve-mile start in order to curb organized crime influences (Fried).
The U.S. has broadly extended its extraterritorial jurisdiction to try to ensure that other governments meet their international law obligations to combat transnational organized crime. Under the Foreign Assistance Act of 1961, as amended (the "FAA"), the U.S. Department of State is required to prepare an annual International Narcotics Control Strategy Report (INCSR). The INCSR provides the factual basis for the presidential narcotics certification determinations for major drug-producing or drug-transit countries. The law requires that if the United States does not certify a country for its actions occurring totally outside the U.S., then it must suspend most foreign assistance and vote against multilateral development bank lending to that country.
The statute requires that for each country that received international narcotics assistance in the past two fiscal years, a report must be issued on the extent to which the country has "met the goals and objectives of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances."
The convention requires that parties take legal measures to prohibit, criminalize, and punish all forms of illicit drug production, trafficking, and drug money laundering, to control chemicals that can be used to process illicit drugs, and to cooperate in international efforts to meet these goals. The convention also requires signatory countries, such as the United States to take extraterritorial criminal action over narcotics offenses committed on the high seas, and to cooperate in allowing an investigating state to search vessels flying its flag, and otherwise cooperate in investigations on the high seas.
In October 1995, President Bill Clinton in President Decision Directive (PDD) 42 imposed sanctions under the International Emergency Economic Powers Act (IEEPA), blocking the assets of the leaders, cohorts, and front companies of identified Colombian narcotics traffickers in the United State and in U.S. banks overseas. IEEPA authorities required the U.S. Secretary of the Treasury to impose sanctions, including freezing assets held in U.S. financial institutions, against nations and entities deemed a threat to the national security, foreign policy, or economy of the United States. The directive provides a series of new initiatives: (a) identifying nations that are most egregious in facilitating money laundering, and considering sanctions if after negotiation they do not take adequate steps; (b) using the authority of the IEEPA to block the U.S. assets of cartel leaders and front companies and to bar trade between them and the United States as outlined in Executive Order 12978; (c) negotiating an international Declaration on Citizens' Security and Combating International Organized Crime; (d) developing a legislative package of new authorities to better enable U.S. agencies to investigate and prosecute all aspects of international organized crime; and (e) seeking additional resources to provide increased U.S. anticrime training and assistance to friendly governments.
On 21 October 1995, President Clinton issued Executive Order 12978, under the authority of IEEPA. It finds that the activities of significant foreign narcotics traffickers centered in Colombia and the unparalleled violence, corruption, and harm constitute a usual and extraordinary threat to the U.S. national security and economy. Additionally, U.S. individuals and companies are forbidden from engaging in financial transactions or trade with the identified individuals or enterprises connected to the Colombian Cali Cartel. The Treasury Department identified 359 businesses and individuals whose assets had been blocked since 1995 under authority of the President's Executive Order. As part of the PDD 42 process, an interagency group is reviewing whether measures can be taken against other international criminal cartels (U.S. Department of State, p. 532).
U.S. extraterritorial jurisdiction has expanded to combat alien smuggling. On 9 November 1995 the report of the Interagency Working Group (IWG), "Deterring Alien Smuggling," determined that alien smuggling must be dealt with at its source as well as in those transit countries through which migrants are moved to the United States. The IWG recommended programs to disrupt global smuggling by increasing the awareness of foreign governments. The IWG has helped prepare a model antismuggling law for adoption in the Western Hemisphere and recommended that additional human resources be devoted to combating alien smuggling by expanding U.S. overseas enforcement capability. In June 1997 the Immigration and Naturalization Service (INS) announced a major expansion of its offices overseas to "go to the source" of the immigrant smuggling problem (Andreas, pp. 40–41).
Congress vested in U.S. district courts jurisdiction over offenses punishable by federal law that have been committed within the special U.S. maritime and territorial jurisdiction. Such jurisdiction extends to the high seas, to any other waters within the U.S. admiralty and maritime jurisdiction that remains outside the jurisdiction of any particular state, and to any U.S. aircraft while in flight over the high seas, or over any other waters within the U.S. admiralty and maritime jurisdiction outside the jurisdiction of any particular state.
Another means by the which the United States exerts extraterritorial jurisdiction is through courts-martial. The three types of courts-martial are general, special, and summary. General courts-martial adhere to the Uniform Code of Military Justice. They have jurisdiction to try any person who is subject to a trial by a military tribunal for violations of the laws of war. Special courts-martial have jurisdiction to try persons subject to the code for noncapital offenses, and capital offenses under regulations prescribed by the President of the United States, who is also authorized to determine punishment. Summary courts-martial have jurisdiction to try persons subject to the code, except officers, cadets, aviation cadets, and midshipmen, for any noncapital offense. No person may be brought to trial, however, if he objects.
Status-of-forces (SOFAs) agreements were created to aid in the determination of which courts have jurisdiction over visiting forces. These agreements established "concurrent jurisdiction," which allowed courts-martial to adhere to both the jurisdictions of the "sending" and "receiving" states. The "sending" state (e.g., the United States over its troops in Germany) retains its ability to perform its military mission by reserving the right to try persons for offenses against the nation or its property (e.g., theft by a U.S. serviceman against U.S. government property), and for offenses borne out of official duty. The "receiving state" retains its territorial sovereignty and jurisdiction over all other offenses (e.g., violent crimes against German nationals) (Bassiouni, p. 119).
The United States and other states engage in proactive policing extraterritorially, such as the use of surveillance, undercover sting operations, controlled deliveries of contraband (whereby the delivery of the contraband is allowed in order to trace and detect the involvement of upperechelon criminals), and the use of liaison officers whereby federal agencies station officials permanently in foreign countries. States try, as much as possible, to abide by the internal law of the foreign state when conducting investigations.
Traditionally, the United States has not recognized and executed the penal laws of another country. To the extent that authority to recognize foreign penal judgments has existed in the U.S. (e.g., through treaty or statute), such recognition has been restricted. The limited authority to recognize and enforce foreign penal judgments combined with the traditional suspicion with foreign criminal procedure has resulted in decisions that substantially limit the effect accorded criminal judgments abroad. Few statutes specifically refer to convictions in courts of a foreign sovereign. Some statutes expressly exclude such convictions, while most are silent or ambiguous.
As between state and federal courts, a federal court has original jurisdiction over all violations of federal law. In cases where one act constitutes an offense against both a state and the United States, both the federal and state courts have jurisdiction of the offense, unless the U.S. Constitution or an act of Congress gives exclusive jurisdiction to the federal courts. A federal court can obtain jurisdiction over a defendant's nonfederal offense where there exists a joinder of a codefendant who is charged with federal violations. If a constitutionally authorized federal nexus exists, the federal government can prosecute crimes anywhere in the United States.
The same act may constitute a crime under a state statute and violate a municipal ordinance. As a result, the courts of the state as well as of the municipality may have jurisdiction over the offense, assuming that the municipality has authority to enact the ordinance. Where two courts have concurrent jurisdiction over the same subject matter, the court that first obtains jurisdiction retains it until the end of the controversy, to the exclusion of the other courts.
The United States and other states employ a type of conflict-of-laws, which is a formula to determine which country's laws to apply in a specific case, or limit the exercise on jurisdiction to prescribe in criminal matters. Even when they have jurisdictional bases, a nation may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable. A state or court will consider various factors in this determination, such as the link of the activity to the territory of the regulating state, that is, the extent to which the activity occurs within the territory, or has substantial, direct, and foreseeable effect upon or in the territory; the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect; and the likelihood of conflict with regulation by another state.
Proof of jurisdiction beyond a reasonable doubt is an integral element of the state's burden in a criminal prosecution. The state can fulfill its burden of showing that jurisdiction properly lies in a state court by presenting evidence that any or all of essential elements of the alleged offense took place in the state.
In the future a shrinking world guarantees that criminal jurisdiction between national governments and state and local governments will inevitably overlap. Additional means will be required to resolve conflicting jurisdictional claims and negotiate agreements and mechanisms to cooperate in the investigation, adjudication, and supervision of international crimes and criminals.
See also Federal Criminal Jurisdiction; International Criminal Courts; International Criminal Law; Venue.
American Law Institute. "Restatement of the Foreign Relations Law of the United States," § 403. In Restatement of the Law, 3d ed. Washington, D.C.: American Law Institute, 1980.
Andreas, Peter. "The Rise of the American Crimefare State." World Policy Journal 14 (1997): 37, 40.
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Blakesley, Christopher. Terrorism, Drugs, International Law, and the Protection of Human Liberty. Ardsley-on-Hudson, N.Y.: Transnational Publishers, Inc., 1992.
Executive Order No. 12978, 60 Fed. Reg. 54, 579 (1995).
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ZAGARIS, BRUCE. "Jurisdiction." Encyclopedia of Crime and Justice. 2002. Retrieved August 27, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3403000148.html
ju·ris·dic·tion / ˌjoŏrisˈdikshən/ • n. the official power to make legal decisions and judgments: federal courts had no jurisdiction over the case the District of Columbia was placed under the jurisdiction of Congress. ∎ the extent of this power: the claim will be within the jurisdiction of the industrial tribunal. ∎ a system of law courts; a judicature: in some jurisdictions there is a mandatory death sentence for murder. ∎ the territory or sphere of activity over which the legal authority of a court or other institution extends: several different tax jurisdictions. DERIVATIVES: ju·ris·dic·tion·al adj.
"jurisdiction." The Oxford Pocket Dictionary of Current English. 2009. Encyclopedia.com. (August 27, 2016). http://www.encyclopedia.com/doc/1O999-jurisdiction.html
"jurisdiction." The Oxford Pocket Dictionary of Current English. 2009. Retrieved August 27, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O999-jurisdiction.html
"jurisdiction." Oxford Dictionary of Rhymes. 2007. Encyclopedia.com. (August 27, 2016). http://www.encyclopedia.com/doc/1O233-jurisdiction.html
"jurisdiction." Oxford Dictionary of Rhymes. 2007. Retrieved August 27, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O233-jurisdiction.html