Is the Supreme Court ready to alter the double jeopardy rules?

A couple of days ago, Ed Morrissey touched on the upcoming double jeopardy case the Supreme Court will consider, specifically focusing on how it might impact Paul Manafort’s prosecution. (Ed also had a preview of the court challenge back in June.) But the case of Gamble v. United States is a fascinating one in and of itself, even absent the question of whether or not it might impact the Manafort case.

The Gamble case might seem like small potatoes at first glance. It deals a convicted felon who was found to have a handgun in his car. He was subsequently tried and convicted in both state and federal court for the same crime. The only reason the two courts could get away with this without running afoul of the constitutional ban on double jeopardy is what’s known as the Separate Sovereigns rule. The court created this standard in the 1922 case of United States v. Lanza (a prohibition rum-running charge) and upheld it in their 1959 decision in Abbate v. United States.

The rule basically declares that a state can’t prosecute you twice for the same criminal act and the feds can’t either. But they can separately charge you for the same crime because the state and federal governments are separate, sovereign entities. Defendants have been fighting this ruling ever since, including Kate Steinle’s killer. But the court has repeatedly declined to revisit the decision.

So why did they agree to review the Gamble conviction if this is settled law? Attorney Doug Mataconis shares a compelling argument about what this portends at Outside the Beltway.

The mere fact that the Supreme Court chose to take this case up is interesting in and of itself. It’s been nearly sixty years since the Abbate ruling was handed down, and it doesn’t appear that the Justices have reviewed the issues raised by that case in the intervening years. Even though it only takes four Justices voting in the affirmative for a case to be accepted for review, the fact that there were four votes to accept the case is interesting since it presents the question of whether or not there might be a majority on the Court who think the time has come to review the holdings in Lanza and Abbate given the fact that Federal law has vastly expanded over the past sixty years.

When Lanza was handed down 96 years ago, and even when Abbate was handed down 37 years later, the Federal criminal code was relatively sparse and consisted largely of crimes that were committed on Federal property, against Federal officials, involved violations of exclusively Federal law such as the Internal Revenue Code, or other Federal laws. In the years since Abbate, though, the criminal law sections of the United States Code have expanded vastly and encompasses a whole host of areas, many of which are also covered by Federal law.

As a general rule, the Supreme Court doesn’t bother taking on cases if there’s some consensus among the justices that the law in question is already settled and stare decisis would carry the day. But as Doug points out, it takes at least four justices to agree to review a case and clearly, they had at least that many onboard.

Another interesting tidbit I ran across previously is the fact that two of the current justices spoke up during interviews a couple of years ago and suggested that the Separate Sovereigns rule doesn’t serve the explicit requirements of the Constitution. Guess which two justices said it. Ruth Bader Ginsburg and Clarence Thomas. The two justices who are arguably out on the furthest conservative and liberal ends of the spectrum were both questioning the rule.

If the Separate Sovereigns rule is thrown out when the decision on Gamble is handed down it’s going to open the floodgates to a ton of challenges to convictions around the country. And maybe it’s long past time that this should have been done. The Constitution clearly only wanted prosecutors to have “one bite at the apple” (to borrow Doug’s description) and this rule seems to thwart that intention.