Issues
Should the Supreme Court overrule the double jeopardy dual sovereign exception, which allows state and federal courts to separately try an individual for the same conduct?
The Supreme Court will rule on the separate-sovereigns doctrine, an exception to the Double Jeopardy Clause that permits both state and federal governments to prosecute an individual for offenses arising from the same conduct. Terance Gamble was prosecuted under both state and federal law for possession of a firearm after being convicted of a violent crime. Gamble argues that an exception for successive prosecutions by separate sovereigns is incompatible with the text of the Clause and the Framers’ intent, and that the Court should overrule contrary precedent. The Government counters that the text of the Constitution, historical context, and a long line of affirmative precedent support preservation of the exception. The Court’s decision in this case will have implications for Double Jeopardy protections, state and federal criminal law, and competition in criminal prosecutions between sovereigns.
Questions as Framed for the Court by the Parties
Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
Facts
On November 29, 2015, a police officer in Alabama pulled over Terance Gamble for a faulty headlight. The officer smelled marijuana and decided to search Gamble’s car, where he found marijuana and a 9mm handgun. Because of a felony conviction for second-degree robbery seven years prior, Alabama prosecuted Gamble for being a felon in possession of a pistol under Ala. Code § 13A-11-72(a), which prohibits anyone who has been convicted of a violent offense from possessing a firearm. While the state prosecution was pending, the federal government charged Gamble with possession of a firearm under federal statute 18 U.S.C. § 922(g)(1). This federal statute is equivalent to the state statute—it prohibits anyone who has been convicted of a crime punishable by a year or more in prison from possessing a firearm.
Gamble pled guilty to the state charge and was sentenced to prison for one year. Gamble then asked the court to dismiss the federal case as a violation of the Fifth Amendment’s Double Jeopardy Clause, which prohibits multiple prosecutions for the same offense. Gamble argued that the conclusion reached in state court prohibited federal prosecution for the same felon-in-possession offense.
The Southern District of Alabama rejected Gamble’s motion to dismiss, citing the binding Supreme Court decision Abbate v. United States, which holds that federal and state prosecutions are prosecutions by different sovereigns. Different sovereigns, the court explained, are not prohibited from trying an individual for the same crime if that crime violates the laws of each sovereign because both sovereigns are entitled to protect their peace and dignity under the separate-sovereigns doctrine. The court emphasized that federal circuit courts of appeals have continued to apply the principle, despite acknowledging that sovereigns may exploit the opportunity for prosecution. After the district court denied Gamble’s motion, Gamble pled guilty to the federal charge and preserved his right to appeal the court’s dismissal of his double jeopardy claim. The district court sentenced Gamble to 46 months in prison, which would run concurrently with the state sentence.
Gamble appealed the district court’s decision. The Eleventh Circuit upheld the district court, citing the Abbate case and other Supreme Court precedent upholding dual prosecution by state and federal governments. Referencing Puerto Rico v. Sanchez Valle, the Eleventh Circuit explained that States are considered sovereigns because the states possessed independent power before forming the Union. Upon joining the Union, this power was preserved to the states by the Tenth Amendment. The states’ authority, therefore, precedes Congress’s and is not connected to the federal government’s power. The Eleventh Circuit went on to explain that the district court correctly determined that the federal government was allowed to charge Gamble because Supreme Court precedent allows both the federal government and a state to charge an individual for the same crime.
Analysis
THE ORIGINAL MEANING AND PURPOSE OF THE DOUBLE JEOPARDY CLAUSE
Gamble argues that the text of the Double Jeopardy Clause, which provides that no person shall be “twice put in jeopardy” “for the same offense,” admits of no exception for separate sovereigns. . Gamble asserts that the Supreme Court has long held that two crimes are the “same offense” if they have the same elements. Accordingly, Gamble claims that the “same offense” language of the Clause cannot be read to exclude crimes with the same elements only because they are prosecuted by two different sovereigns. Gamble further contends that had Congress intended the Clause to contain this exception, it could have easily been explicitly included. However, according to Gamble, Congress instead chose to phrase the Clause in absolute terms, even rejecting an amendment that would have made the exception explicit.
Gamble also asserts that the separate-sovereigns exception contravenes the original understanding of the Clause, as conceived by the Framers of the Constitution. Gamble claims that the Framers intended the Clause to embody an established rule of English common law. Gamble points out that the Supreme Court has since confirmed this understanding in Grady v. Corbin—which required courts to look to the “English practice, as understood in 1791,” to determine the scope of the Clause. And at the time of the founding of the United States, the idea that two sovereigns could prosecute a defendant for the same crime had been specifically rejected under English law, according to Gamble. Gamble notes a number of English cases that support this proposition, and points to similar early United States Supreme Court holdings, such as Houston v. Moore, in which the Court held that prosecution of a defendant by either of two courts with concurrent jurisdiction would bar prosecution by the other. Gamble argues that in the decades since, a plurality of state courts, as well as treatises on American law also supported the traditional English rule.
Gamble finally contends that the separate-sovereigns exception arose long after the founding of the United States; courts first developed the exception only in dicta. Gamble claims that the judiciary began to formulate the exception between 1847 and 1852, when the Supreme Court suggested in several cases that the Clause did not apply to the states. According to Gamble, the separate-sovereigns exception solidified as a doctrine through several Prohibition Era cases, including Abbate v. United States, in which the Court upheld several successive state and federal prosecutions. Gamble argues that the Court’s reasoning in these cases largely concerned the “undesirable consequences” that might follow from ruling in the alternative, rather than the original meaning of the Clause. Gamble points to Justice Black’s dissents in these cases, in which the Justice cited the “overwhelming evidence of original meaning” of the Clause and argued that none of the Court’s reasons justified ignoring the traditional rule.
The Government counters that the Supreme Court has always understood each violation of a sovereign’s law to constitute a separate offense, even when the violations derive from the same act. Therefore, according to the Government, such offenses are not the “same offense” prohibited by the Double Jeopardy Clause.The Government asserts that this accords with the plain meaning of the term “offense.” In 1791, the Government contends, “offense” was commonly understood to mean a specific violation of the law of a sovereign. The Government points out that a violation of the law is distinct from a mere act or conduct. The Government claims that other parts of the Constitution use “offense” in the same way, such as the Law of Nations Clause.
The Government further argues that the Court’s recognition of offenses against a state and offenses against the United States as distinct follows from the intent of the Framers. The Government claims that the Framers could not have intended the Clause to shield foreign criminals from prosecution for crimes committed in the United States if the criminals were first prosecuted by their home country.The Government points to the Declaration of Independence, which contains a passage denouncing an act of Parliament that allowed for the trial in England of British troops for murder committed in the United States. Moreover, the Government contends that none of the pre-Framing decisions or treatises cited by Gamble lay out a common law rule that a foreign prosecution precludes a domestic one.
The Government asserts that the early state cases failed to conclusively determine the applicability of the separate-sovereigns exception because of their lack of uniformity and consensus. The Government points to the Court’s observation in Bartkus v. Illinois that this lack of consensus may have been due to “conflict in conscience,” rather than legitimate disagreement over the law. The Government claims that the Court eventually settled the question in Fox v. Ohio, and later in Bartkus and Abbate, where it held that state and federal crimes are not the same offense. The Government argues that through these cases, the Court upheld the original principles of federalism underlying the Clause. The Government notes the Court’s reasoning that every U.S. citizen is also the citizen of a state, and naturally may be liable for punishment for an act that offends the law of one or both entities.
STARE DECISIS AND THE SEPARATE-SOVEREIGNS EXCEPTION
Gamble contends that stare decisis does not prevent the Supreme Court from overturning the separate-sovereigns exception. Gamble argues that the Court has always been amenable to overruling bad precedent in specific circumstances. And, according to Gamble, the separate-sovereigns exception possesses those specific qualities that render a precedent undeserving of stare decisis protection. Firstly, Gamble notes that the exception “contradicts an unbroken line of decisions,” and contains “‘less than accurate’ historical analysis,” qualities that the Court singled out as grounds for overruling precedent in United States v. Dixon. Additionally, Gamble claims that stare decisis provides less protection for cases decided by narrow margins, and over dissenting opinions that challenge the “basic underpinnings” of the majority’s rationale, as was the case with several of the Prohibition Era separate-sovereigns cases.
Gamble further asserts that a decision of the Court is less deserving of stare decisis protection where subsequent decisions have challenged or eroded the doctrinal basis for that decision. Gamble argues that the separate-sovereigns exception is one such decision, as it developed on the understanding that the Bill of Rights, which includes the Clause, did not apply to the states. Gamble notes that the Bill of Rights has since been formally incorporated against the states, with the Clause being incorporated about ten years after Abbate. Gamble points to a number of cases, including Elkins v. United States, in which the Court has recognized that the subsequent incorporation of constitutional provisions against the states justifies overruling decisions that were premised on the prior inapplicability of those provisions to the states.
Gamble argues that shifts in the factual landscape may also justify a departure from stare decisis. Gamble cites the Court in South Dakota v. Wayfair, Inc., which stated that precedent must yield to “far-reaching systemic and structural changes.” Here, Gamble contends that the rapid expansion of federal criminal law since the Court adopted the separate-sovereigns exception is one such factual shift. Gamble points to the duplication of almost every major state crime in the federal criminal code in recent years as grounds for overturning the exception.
The Government claims that none of the arguments advanced by Petitioner justify overturning the extensive precedent treating separate sovereigns’ crimes as distinct offenses. The Government asserts that the Court has upheld the separate-sovereigns exception in a long line of decisions dating back to the nineteenth century. The Government notes that though Bartkus and Abbate were decided by relatively narrow margins, most of the other key separate-sovereigns cases were decided either unanimously, or with only one or two dissents that did not go to the core of the doctrinal issue.
The Government argues that there have been no subsequent developments that have eroded or justify reinterpreting the separate-sovereigns exception. The Government contends that nothing about the exception relies on a presumption that the Clause applies to the federal government alone. The Government points to Heath v. Alabama, in which the Court reaffirmed its sovereign-specific interpretation of the Clause, well after the Clause was incorporated against the states. As such, the cases that Petitioner points to in which the Court overruled precedent based on prior non-incorporation against the states are inapplicable, according to the Government.
The Government lastly argues against the contention that the expansion of federal criminal law justifies a departure from stare decisis. The Government asserts that additional federal criminal laws do not undercut any “factual premise[s]” of the separate-sovereigns exception, and points to the Court’s statement in Fox that prosecutions arising from the additional laws would be valid even if they were relatively commonplace, as is now the case. The Government claims that though the Court has stated that successive prosecutions might be barred where one sovereign acts only as a tool of the other, cooperation between federal and state authorities in achieving their shared interest of criminal prosecution does not rise to this level.
Discussion
EFFECT ON PROSECUTIONS
Criminal Defense Experts (“Experts”), in support of Gamble, argue that affirming the lower court’s decision will frustrate the purposes of double jeopardy protection—to avoid subjecting people to the stress and trauma of continuous attempts to prosecute for the same offense, and to minimize the risk of mistakenly prosecuting an innocent person. Furthermore, the Experts assert that the second sovereign seeking to prosecute will still be able to “pursue its prosecution” if this case is reversed as long as federal and state statutes contain different elements because two statutes must have the same elements to be considered the same offense. The Experts also contend that prohibiting dual sovereign prosecution will facilitate guilty pleas because defense attorneys may be currently hesitant to encourage their clients to plead guilty when another sovereign could use that plea as evidence in a subsequent prosecution.
National Association of Countries et al. (“NACo”), in support of the United States, argues that reversing the Eleventh Circuit could be detrimental to defendants because many states that currently provide statutory double jeopardy protections would likely revisit their standards to ensure that they do not lose their authority to prosecute, which could result in defendants being tried for the same act more often. Additionally, NACo asserts that allowing the federal government to extend to purely local conduct will conflict with a state’s ability to define and punish criminal offenses in its territory. NACo also contends that by reversing the Eleventh Circuit’s decision, prosecutors will be more inclined to rush through investigations before charging defendants to avoid losing their ability to prosecute if they are not the first to do so. Texas and other states (“Texas”) posit that reversing this case will incentivize defendants who know they can be charged with crimes by separate sovereigns to race to bargain with jurisdictions that have more lenient punishments, or plead guilty in the jurisdiction that has more lenient laws, to avoid prosecution from the harsher sovereign.
EFFECT ON SOVEREIGNS
The Experts argue that reversing the Eleventh Circuit will encourage sovereigns to spend more time drafting laws that focus more specifically on the goals of each sovereign to avoid potential double jeopardy conflicts. The Experts assert that there is a noted trend towards “overcriminalization” in federal law, and prohibiting dual sovereign prosecution will result in many of these statutes becoming clearer and more finely tuned. Furthermore, the Experts contend that eliminating the dual sovereignty exception will encourage lawmakers to focus on each sovereign’s individual concerns when drafting laws, which will promote cooperation between the federal and state law enforcement officers to ensure that the crime is prosecuted in the appropriate jurisdiction. Senator Orrin Hatch posits that the dual sovereign exception introduces uncertainty and imprecision into legislation drafting by requiring legislators to anticipate how equivalent state or federal statutes will affect the cumulative punishment that an offender receives.
NACo maintains that removing the dual sovereignty doctrine will promote competition between state and federal governments over the ability to prosecute. For example, NACo argues that states will be encouraged to institute penalties that are harsher than the corresponding federal sanctions to gain leverage over an offender during investigations. NACo also asserts that eliminating dual prosecution will discourage state and federal prosecutors from sharing information with one another, a process which has historically led sovereigns to drop charges. Furthermore, Texas contends that prosecutors will want to prosecute based on the interests of the sovereigns that they represent, and will be less inclined to cooperate with one another if they know their sovereign’s interests will be blocked by the other sovereign’s prosecution. NACo posits that eliminating the dual sovereignty exception will ultimately result is “turf wars” between the federal government and the states, and will ultimately harm the states’ ability to maintain peace within their territories.
Written by
Edited by
Acknowledgments
Additional Resources
- Natasha Bertrand: A Supreme Court Case Could Liberate Trump to Pardon His Associates, The Atlantic (Sept. 25, 2018).
- Teri Kanefield & Jed Shugerman: Why the Big Double Jeopardy Supreme Court Case Isn’t a Threat to the Mueller Probe, Slate (Oct. 4, 2018).
- Peter A. Crusco: ‘Gamble v. United States’ and the Dual Sovereignty Doctrine, New York Law Journal (Oct. 22, 2018).