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Argument preview: Justices to reconsider potentially far reaching double-jeopardy exception

Next week the Supreme Court will hear oral argument in the case of an Alabama man who was convicted of both federal and state gun charges arising from the same traffic stop. He is challenging what is known as the “separate sovereigns” doctrine – the idea, based on longstanding Supreme Court rulings, that the federal government and Alabama are two different sovereigns and therefore can both prosecute him for the same conduct without running afoul of the Constitution’s ban on double jeopardy. In the 1990s, federal prosecutors relied on the doctrine to try the Los Angeles police officers accused of beating motorist Rodney King on federal civil rights charges after they were acquitted in state courts, but Terance Gamble is urging the justices to scrap the doctrine. If the Supreme Court agrees, its ruling could have a widespread impact that could extend to prosecutions by Robert Mueller, the special counsel appointed to investigate Russian efforts to influence the 2016 election.

The case now before the court began in 2015, when Gamble was pulled over by police for having a faulty headlight. The police officer smelled marijuana and searched Gamble’s car, where he found two bags of marijuana, a digital scale and a handgun.

Alabama charged Gamble with violating state drug laws; both the state and the federal government also charged him with being a felon in possession of a firearm. A state court in Alabama sentenced Gamble to one year in prison.

Gamble urged the federal trial court to throw out the charge against him, arguing that prosecuting him in federal court after the state had charged him would violate the Constitution’s double jeopardy clause, which guarantees that no one shall “be twice put in jeopardy” “for the same offence.” The trial court rejected his claim, explaining that it had to follow the separate sovereigns doctrine unless and until the Supreme Court overruled it. The trial court sentenced Gamble to nearly four years in federal prison, followed by a year of supervised release. The U.S. Court of Appeals for the 11th Circuit upheld the district court’s ruling and Gamble’s sentence. Gamble asked the Supreme Court to weigh in; the justices considered his case at 11 consecutive conferences before agreeing to do so.

In the Supreme Court, the federal government insists that the separate sovereigns doctrine should remain in place. The text of the double jeopardy clause bars successive prosecution and punishment for the same offense, the government emphasizes, not for the same conduct. And when it uses the term “offence,” the government continues, the double jeopardy clause is referring to the violation of a law. The same conduct can violate two different sovereigns’ laws and constitute two different offenses, which each sovereign can then punish and prosecute separately. If the Framers had wanted the clause to apply more broadly, the government adds, they would have used the term “conduct” or “acts” rather than “offence.”

Gamble offers a very different interpretation of the text, telling the justices that nothing in the text points to any exceptions to the double jeopardy clause. Instead, he stresses, the text of the clause bars prosecution of the “same offence,” without suggesting that two prosecutions for the same offense would be acceptable as long as they are prosecuted by two separate sovereigns. To the contrary, Gamble observes, Congress considered but rejected an exception that would have allowed the federal government to prosecute a defendant even after he’d been convicted for the same offense under state law.

Gamble contends that the separate sovereigns doctrine is also inconsistent with the purpose of the double jeopardy clause. Permitting two consecutive prosecutions for the same conduct on the ground that prosecutions are brought by two different sovereigns, Gamble argues, “hardly serves the deeply rooted principles of finality and fairness the Clause was designed to protect,” particularly when it would still require two trials and could potentially lead to double punishments.

Gamble tells the justices that the principle of adhering to prior decisions – known as stare decisis – should not stand in way of overruling the separate sovereigns doctrine. First, he says, the doctrine “has long been questioned by members of this Court, lower-court jurists, and legal scholars” – including by both Justice Ruth Bader Ginsburg and Justice Clarence Thomas.

Second, he explains, when the Supreme Court established the doctrine, the double jeopardy clause did not apply to the states, so it would make sense that at that time the clause would bar successive prosecutions by the federal government, but wouldn’t prohibit the federal government from prosecuting a defendant even after a state had prosecuted the defendant for the same offense. Now that the double jeopardy clause does apply to the states, though, the rationale for the doctrine is gone.

Another reason to overturn the separate sovereigns doctrine, Gamble continues, is that the Supreme Court believed when it adopted the doctrine that duplicative prosecutions by state and federal governments would be “exceedingly rare,” because federal criminal law was very limited. But federal criminal law has expanded significantly during the past half-century, Gamble observes, “far beyond what the judicial framers of the separate-sovereigns exception could have possibly imagined.” As a result, Gamble claims, “nearly every crime can be charged both in state court and in federal court.”

Gamble characterizes the separate sovereigns doctrine as unworkable in practice, another criterion frequently cited as a reason for the Supreme Court to overrule its earlier decisions. The Department of Justice, he explains, has adopted an internal policy to govern the determination whether to bring a federal prosecution after a defendant has been prosecuted under state law for essentially the same conduct. But the government has not followed that policy consistently. Moreover, he contends, there would be no real harm to law-enforcement efforts if the doctrine were overruled: Most states reject the doctrine in at least some cases, but “no chaos has ensued in their criminal-justice systems.”

The government urges the justices to stick with the separate sovereigns doctrine, describing it as a simple rule to apply: All that matters, the government says, is whether governments are separate sovereigns, something that Supreme Court has already made clear. By contrast, the government argues, overruling the doctrine would require courts to tackle “a new and vexing problem”: determining whether laws passed by two different sovereigns target the same “offense.”

A ban on any successive prosecutions would also create a variety of problems, the government warns. For example, under Gamble’s interpretation, the U.S. or a state government would not be able to prosecute a foreign terrorist if a foreign government had also tried him. Abandoning the separate sovereigns doctrine could also lead to a flood of challenges by inmates convicted by two different sovereigns who want to overturn the second conviction, even if it became final long ago.

Overruling the doctrine would also weaken efforts to hold responsible perpetrators of domestic violence against Native Americans, the government asserts. Native American tribes face a number of obstacles that hinder their ability to address and punish domestic violence, but the current interpretation of the double jeopardy clause allows tribes to enforce existing laws immediately, without precluding the federal government from later prosecuting the same defendant under federal domestic-violence laws that impose greater punishments for repeat tribal offenders. A “friend of the court” brief filed by Native American women underscores this point, noting that “[n]ative women and children face the highest rates of domestic violence, murder, and sexual assault in the United States.”

The government concedes that a “successive prosecution by a different sovereign can impose substantial burdens on a defendant and will often be unnecessary.” But, it counters, a successive prosecution may be appropriate in some cases – for example, if a defendant rushed to plead guilty in a state court because he would receive a shorter sentence than if he were tried and convicted in a federal court, or to allow both the state and federal governments to prosecute when different interests are involved, as in the murder of a federal judge.

Concerns about unfairness if a defendant is prosecuted twice for similar conduct are, the government concludes, best addressed by Congress and the executive branch, rather than the courts. And indeed, some state legislatures have prohibited successive prosecutions in some cases. Courts can also play a role in ensuring fairness, the government says, by taking other prosecutions and sentences into account when they sentence a defendant, as the district court did in this case when it ordered Gamble’s federal sentence to run at the same time as his state sentences, “thereby effectively punishing” him “as if he had been prosecuted only for the single federal crime.”

Gamble’s case would be an interesting one in any term because of the constitutional and criminal law issues involved. But his case is drawing even more attention because it is playing out against the backdrop of Robert Mueller’s investigation into potential Russian interference in the 2016 election. There has been widespread speculation that, if associates or aides to President Donald Trump are convicted on federal criminal charges arising from the Mueller probe, the president could pardon them. Under the separate sovereigns doctrine, however, they could theoretically still be charged in state court (for example, in New York or Virginia) even after a pardon, so a ruling for Gamble might allow those defendants to get off scot-free. Other legal scholars, however, have countered that even a ruling for Gamble will likely have little effect on the Mueller probe, because both New York and Virginia “already had their own double jeopardy rules in place,” which would have required Mueller “to strategize his criminal charges and guilty pleas around those rules.” Either way, the Mueller probe will almost certainly add an interesting twist to next week’s argument.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Argument preview: Justices to reconsider potentially far reaching double-jeopardy exception, SCOTUSblog (Nov. 29, 2018, 10:35 AM),