More SCOTUS: You'd better believe there's no double jeopardy issue between sovereigns

A year ago, the Supreme Court granted cert in an appeal from Terance Gamble in what appeared to signal a willingness to expand the constitutional prohibition on double jeopardy. Gamble got prosecuted by Alabama and by the federal government over essentially the same offense, for being a felon in possession of a firearm. Would the court finally rule that the increasingly federalized nature of law enforcement made double prosecutions unconstitutional?


Uh, nope. The 7-2 decision by the court might even raise questions as to why they granted cert at all:

The Supreme Court on Monday reaffirmed the long-established precedent that allows both state and federal authorities to prosecute a person for the same offense, a ruling that has implications for President Trump’s pardon powers.

The 7 to 2 ruling rejected arguments that allowing subsequent prosecutions violates the double jeopardy clause in the Bill of Rights, which prohibits more than one prosecution or punishment for the same offense. …

Since the 1850s, the court has allowed an exception to the Constitution’s double-jeopardy prohibition on the theory that the federal and state governments are separate constitutional actors with their own sovereign authority.

Alito said that the evidence mounted by challengers that the practice departs from the founding-era understanding of the Double Jeopardy Clause is “feeble; pointing the other way are the Clause’s text, other historical evidence, and 170 years of precedent.”

If that’s the case, why grant cert at all? Both Jazz and I wondered what the court had in mind with Gamble, which appeared to fit well within the confines of repeated court precedent. The act of accepting the case should have signaled a significant willingness to rethink all of the precedent, but instead six other justices lined up behind Samuel Alito to restate what has been practice all along.

So Terance Gamble lost in court, but at least he got a year’s worth of hope out of it. The national media mainly differed in their focus from the Washington Post’s more straightforward reporting on the decision by choosing others as the big losers in the case. Want to guess who? Here’s the New York Times:


In a decision that could affect associates of President Trump accused of wrongdoing and hoping for pardons, the Supreme Court ruled on Monday that criminal defendants may be prosecuted for the same offenses in both federal and state court. Since Mr. Trump’s pardon power extends only to federal crimes, the ruling leaves people he pardons subject to state prosecutions.


The Supreme Court on Monday said a person can be charged and tried in state and federal court for the same conduct without running afoul to the double jeopardy clause of the US Constitution because state and federal governments are separate sovereigns.

The case has implications for former Trump campaign chairman Paul Manafort, who is facing charges in New York State that are similar to the federal charges for which he has been tried.


The Supreme Court declined on Monday to change the longstanding rule that says putting someone on trial more than once for the same crime does not violate the Constitution’s protection against double jeopardy — a case that drew attention because of its possible implications for President Donald Trump’s former campaign chairman, Paul Manafort.

USA Today:

The Supreme Court upheld Monday the ability of federal and state governments to prosecute defendants twice for the same crime – a form of double jeopardy that could come into play if President Donald Trump pardons former associates caught up in the Russian election-meddling scandal.


Get the drift? Terance Gamble must be wondering why he spent all of his money just to end up a footnote in the media coverage of his own case.

This looks like a waste of time for everyone, in retrospect at least. It takes four justices to grant cert. Anthony Kennedy has since retired, so that could have been three. Clarence Thomas apparently voted to rethink double jeopardy, but in a concurrence explained why he changed his mind:

I agree that the historical record does not bear out my initial skepticism of the dual-sovereignty doctrine. See Puerto Rico v. Sánchez Valle, 579 U. S. ___ (2016) (GINSBURG, J., joined by THOMAS, J. concurring). The founding generation foresaw very limited potential for overlapping criminal prosecutions by the States and the Federal Government.1 The Founders therefore had no reason to address the double jeopardy question that the Court resolves today. Given their understanding of Congress’ limited criminal jurisdiction and the absence of an analogous dual-sovereign system in England, it is difficult to conclude that the People who ratified the Fifth Amendment understood it to prohibit prosecution by a State and the Federal Government for the same offense. And, of course, we are not entitled to interpret the Constitution to align it with our personal sensibilities about “‘unjust’” prosecutions. Post, at 6 (GINSBURG, J., dissenting); see Currier v. Virginia, 585 U. S. ___, ___ (2018) (plurality opinion) (slip op., at 16) (“While the growing number of criminal offenses in our statute books may be cause for concern, no one should expect (or want) judges to revise the Constitution to address every social problem they happen to perceive” (citation omitted)).


That’s clear enough, but it was just as clear last June, too. There are three proper response to overlapping jurisdictions and the constitutional bar on double jeopardy: get rid of the overlapping jurisdictions by rolling back federal law enforcement to truly interstate crimes; amend the Constitution to deal explicitly with applying it between the separate sovereigns; and let the status quo continue by doing nothing. The court could have easily done that by denying cert and saving themselves some time.

Nevertheless, the seven justices have restated the familiar separate-sovereigns rule once again for the record:

(a) The dual-sovereignty doctrine is not an exception to the double jeopardy right but follows from the Fifth Amendment’s text. The Double Jeopardy Clause protects individuals from being “twice put in jeopardy” “for the same offence.” As originally understood, an “offence” is defined by a law, and each law is defined by a sovereign. Thus, where there are two sovereigns, there are two laws and two “offences.” Gamble attempts to show from the Clause’s drafting history that Congress must have intended to bar successive prosecutions regardless of the sovereign bringing the charge. But even if conjectures about subjective goals were allowed to inform this Court’s reading of the text, the Government’s contrary arguments on that score would prevail. Pp. 3–5.

(b) This Court’s cases reflect the sovereign-specific reading of the phrase “same offence.” Three antebellum cases—Fox v. Ohio, 5 How. 410; United States v. Marigold, 9 How. 560; and Moore v. Illinois, 14 How. 13—laid the foundation that a crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate. Seventy years later, that foundation was cemented in United States v. Lanza, 260 U. S. 377, which upheld a federal prosecution that followed one by a State. This Court applied that precedent for decades until 1959, when it refused two requests to reverse course, see Bartkus v. Illinois, 359 U. S. 121; Abbate v. United States, 359 U. S. 187, and it has reinforced that precedent over the following six decades, see, e.g., Puerto Rico v. Sanchez Valle, 579 U. S. ___. Pp. 5–10.

(c) Gamble claims that this Court’s precedent contradicts the common-law rights that the Double Jeopardy Clause was originally understood to engraft onto the Constitution, pointing to English and American cases and treatises. A departure from precedent, however, “demands special justification,” Arizona v. Rumsey, 467 U. S. 203, 212, and Gamble’s historical evidence is too feeble to break the chain of precedent linking dozens of cases over 170 years. This Court has previously concluded that the probative value of early English decisions on which Gamble relies was “dubious” due to “confused and inadequate reporting.” Bartkus, 359 U. S., at 128, n. 9. On closer inspection, that assessment has proven accurate; the passing years have not made those early cases any clearer or more valuable. Nor do the treatises cited by Gamble come close to settling the historical question with enough force to meet his particular burden. His position is also not supported by state court cases, which are equivocal at best. Less useful still are the two federal cases cited by Gamble— Houston v. Moore, 5 Wheat. 1, which squares with the dual sovereignty doctrine, and United States v. Furlong, 5 Wheat. 184, which actually supports it. Pp. 11–28.

(d) Gamble’s attempts to blunt the force of stare decisis here do not succeed. He contends that the recognition of the Double Jeopardy Clause’s incorporation against the States washed away any theoretical foundation for the dual-sovereignty rule. But this rule rests on the fact that only same-sovereign prosecutions can involve the “same offence,” and that is just as true after incorporation as before. Gamble also argues that the proliferation of federal criminal laws has raised the risk of successive prosecutions under state and federal law for the same criminal conduct, thus compounding the harm inflicted by precedent. But this objection obviously assumes that precedent was erroneous from the start, so it is only as strong as the historical arguments found wanting. In any case, eliminating the dual sovereignty rule would do little to trim the reach of federal criminal law or prevent many successive state and federal prosecutions for the same criminal conduct, see Blockburger v. United States, 284 U. S. 299. Pp. 28–31.


That’s been the case for 170 years, and it’s still the case after today after the court’s lengthy Emily Litella response. If people want this changed, they’ll have to do the hard work of amending the Constitution or shrinking the federal criminal statutes themselves — and that’s as it should be.

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David Strom 8:16 PM | July 17, 2024