Defining “Substantially Different Harms”: Affirmation of the Double Jeopardy Exception Under Ark. Code Ann. § 5-1-114

Introduction

This case commentary examines the Supreme Court of Arkansas’s decision in Amber Dawn Waterman v. State of Arkansas (2025 Ark. 62). The appellant, Amber Dawn Waterman, challenged her state-court capital murder prosecution on double-jeopardy grounds after pleading guilty in federal court to kidnapping offenses that resulted in the deaths of Ashley Bush and her unborn child. Waterman argued that Ark. Code Ann. § 5-1-114 (Repl. 2024) and article 2, section 8 of the Arkansas Constitution barred her subsequent state prosecution. The Supreme Court affirmed the circuit court’s denial of her motion to dismiss, clarifying when former federal convictions constitute an affirmative defense under Arkansas law and confirming that the state constitution does not override the dual-sovereignty doctrine.

Summary of the Judgment

On May 8, 2025, Chief Justice Karen R. Baker delivered the opinion of the court, which:

Reviewed de novo Waterman’s statutory double-jeopardy claim under Ark. Code Ann. § 5-1-114.
Found that both the federal kidnapping statutes (18 U.S.C. §§ 1201(a)(1), 1841) and the Arkansas capital-murder statute (Ark. Code Ann. § 5-10-101(a)(4)) require proof of facts not required by the other, satisfying the first exception in § 5-1-114(1)(A).
Held that the statutes are intended to prevent “substantially different harms or evils” (interstate kidnapping vs. intentional killing), satisfying the second exception in § 5-1-114(1)(A).
Concluded that federal convictions do not bar Waterman’s state capital-murder prosecution under § 5-1-114.
Declined to expand article 2, section 8 of the Arkansas Constitution to invalidate the dual-sovereignty doctrine, thereby allowing successive prosecutions by federal and state governments.
Affirmed the Benton County Circuit Court’s denial of Waterman’s motion to dismiss.

Analysis

1. Precedents Cited

Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006) – Established that double-jeopardy questions are reviewed de novo, with factual findings reviewed for clear error.
Zawodniak v. State, 339 Ark. 66, 3 S.W.3d 292 (1999) – Permitted interlocutory appeals on double-jeopardy grounds to avoid forfeiture of the right.
Bateman v. State, 265 Ark. 307, 578 S.W.2d 216 (1979) – Held that dual prosecutions for the same evil (trafficking stolen firearms) were barred under the predecessor to § 5-1-114.
Gamble v. United States, 587 U.S. 678 (2019) – U.S. Supreme Court affirmed dual-sovereignty doctrine; dissent urged reconsideration but was not adopted by Arkansas Supreme Court.

2. Legal Reasoning

The court’s statutory analysis turned on Ark. Code Ann. § 5-1-114(1)(A), which allows a prior foreign or federal prosecution to be an affirmative defense only if:

Each prosecution “requires proof of a fact not required by the other offense.”
The laws are “intended to prevent a substantially different harm or evil.”

The court contrasted the elements of the federal offenses (unlawful seizure and interstate transport of a person; a separate unborn-child killing provision with no requirement of intent to kill) with the Arkansas capital-murder statute (premeditated, deliberate killing). Because kidnapping and interstate transport are not elements of capital murder, and deliberation and intent to kill are not elements of kidnapping statutes, the first exception was met. The court then explained that Congress sought to prevent interstate kidnappings and related injuries or deaths to unborn children, whereas Arkansas aimed to deter intentional homicides, thereby satisfying the “substantially different”-harm requirement.

On the constitutional claim, Waterman urged Arkansas to interpret article 2, section 8 more broadly than the Fifth Amendment. The court declined, citing Gamble and noting that a state provision identical in language to the federal clause will generally receive the same construction unless there is a compelling local reason to diverge.

3. Impact

Reaffirmation of Dual Sovereignty: Arkansas courts will continue to permit successive federal and state prosecutions when § 5-1-114 exceptions are met.
Prosecutorial Guidance: Prosecutors should analyze both elements and legislative intent before charging defendants with overlapping federal and state offenses.
Defense Strategy: Criminal defense counsel must plan double-jeopardy challenges early, focusing on factual-element comparisons and statutory purposes.
Future Litigation: This decision curtails arguments for a broader state-constitutional double-jeopardy protection and anchors Arkansas law to the dual-sovereignty doctrine.

Complex Concepts Simplified

Double Jeopardy: A constitutional protection against being tried twice for the same offense.

Dual Sovereignty Doctrine: The principle that state and federal governments, as separate sovereigns, can each prosecute the same person for the same conduct under their own laws.

Interlocutory Appeal: An appeal taken before the trial court’s final judgment to preserve a right that would be lost if the defendant proceeded to trial first.

Premeditated and Deliberated Purpose: A specific intent element requiring that a defendant planned and thought through the killing before acting.

Conclusion

Amber Dawn Waterman v. State of Arkansas clarifies the scope of Arkansas’s statutory double-jeopardy protections. By confirming that dual prosecutions are permissible when each offense requires proof of distinct elements and targets different harms, the court aligned the state statute with the federal dual-sovereignty framework. The decision underscores that identical language in state and federal double-jeopardy clauses carries identical legal consequences absent clear legislative intent to the contrary. Ultimately, this ruling reinforces prosecutorial flexibility in federal-state cooperation and delineates the precise boundaries of double-jeopardy defenses in Arkansas.