Hmmm: SCOTUS to take up double jeopardy in next term

Ready for yet another wild card in the Supreme Court confirmation game? Add a hefty and contentious constitutional question other than abortion to the mix. NBC’s Pete Williams reports that the Supreme Court has granted cert in a case that challenges whether a person can be tried for the same offense twice — as long as it is by separate sovereigns. The double-jeopardy question might well come up in questioning for whomever Trump picks:


The U.S. Supreme Court agreed Thursday to reconsider its long-standing view that putting someone on trial more than once for the same crime does not violate the Constitution’s protection against double jeopardy.

Among the provisions of the Fifth Amendment is that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” That’s popularly understood to mean that nobody can be put on trial twice for the same crime.

But in a line of cases stretching back more than 150 years, the Supreme Court has ruled that being prosecuted twice — once by a state and again in federal court — doesn’t violate the clause because the states and the federal government are “separate sovereigns.”

The court has held that when a defendant in a single act breaks both a federal and a state law, that amounts to two distinct offenses and can result in two separate prosecutions. Barring states from prosecuting someone already tried in federal court “would be a shocking and untoward deprivation of the historic right and obligation of the states to maintain peace and order within their confines,” the court has said.

Watch the video report here, which won’t embed properly elsewhere. The extant case under consideration involves a man arrested in Alabama for a firearms violation after being pulled over for a traffic stop. Terance Gamble will be behind bars until 2020, thanks in part to convictions in both state and federal courts for the same crime:


Gamble was previously barred from owning a firearm in relation to a robbery, and he served a year in prison after the state of Alabama convicted for illegal possession after he was pulled over in 2015. The federal government also charged Gamble for the same crime, and he’s currently serving time in a federal facility.

Some states already prohibit this kind of double prosecution (New York, for instance), but it’s used often elsewhere. Furthermore, the state bars on such tactics prevent the state from trying someone who’s already been tried in federal court, but they can’t prevent federal prosecutors from putting people on trial after a state prosecution. The court has limited the use of these dual prosecutions but not by a whole lot, and clearly none of the limiting decisions had an impact on Gamble.

If the court dumps stare decisis on this issue and eliminates dual prosecutions, it’ll go far beyond Gamble. That kind of decision would have to be applied retroactively, and would apply to even those who didn’t get convicted in both venues. There are plenty of people who beat the rap in a first trial only to get convicted in the second under another sovereign. Those convictions would have to get overturned. And what about the civil-rights prosecutions against law enforcement officers where local juries acquitted first? This might open a very large can of worms, and the fact that cert got granted at all hints that the can might well be opening.

Not only that, it’s pretty timely too:


“Current precedent allows such prosecutions by ‘separate sovereigns.’ If the court overrules its prior precedent, it could make it more difficult for a state to try someone who has been pardoned by the federal government if trial proceedings had already begun for the federal offense,” said Stephen Vladeck, CNN’s Supreme Court analyst and a law professor at the University of Texas School of Law.

Gee, what does that remind people of? You can bet that any prospective justice will get a “do you think that a Trump pardon should shield his co-conspirators” question from at least one of the Democrats on the Senate Judiciary Committee. Or maybe all of them, given the intense media scrutiny of the proceedings.

All of this raises one question: with this case pending, why didn’t Anthony Kennedy stick around? This seems like the kind of meaty constitutional question for which justices yearn. Kennedy must have really wanted to enjoy his last few years in peace, or maybe he just saw what was coming.

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John Stossel 1:00 PM | June 15, 2024