Issues to Watch

A Long-Standing Double Jeopardy Exception Is in Jeopardy of Being Overruled by the Supreme Court


*Emma J. Dorris

I.  INTRODUCTION

The Fifth Amendment to the United States Constitution provides that “no person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.”  U.S. Const. amend. V.  This constitutional protection, which prohibits the government from prosecuting individuals twice for the same crime, is known as the Double Jeopardy Clause.  See David Cole & Somil Trivedi, It’s Time to Close a Loophole in the Constitution’s Double Jeopardy Rule, aclu (Sept. 12, 2018, 11:30 AM), https://www.aclu.org/blog/criminal-law-reform/its-time-close-loophole-constitutions-double-jeopardy-rule.

However, almost one hundred years ago, in United States v. Lanza, the Supreme Court upheld the federal prosecution of defendants who had already been tried and convicted in state court for the same crime, holding that “an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.” United States v. Lanza, 260 U.S. 377, 382 (1922).  This has come to be known as the “separate sovereigns” exception and it “allows state and federal prosecutors to bring separate charges for the same alleged crime.”  Cole & Trivedi, supra.  The Supreme Court recently heard arguments on December 5, 2018, for Gamble v. United States, a case that directly challenges the separate sovereigns exception to the Double Jeopardy Clause.  Gamble v. United States, SCOTUSblog, http://www.scotusblog.com/case-files/cases/gamble-v-united-states/ (last visited Jan. 18, 2019).

II.  BACKGROUND

The dispute that ultimately made its way to the Supreme Court started in 2008, when Terance Martez Gamble was convicted of second degree robbery in Alabama.  See Gamble v. United States, No. 16-00090-KD-B, 2016 WL 3460414, at *1 (S.D. Ala. Jun. 21, 2016).  In Alabama, second degree robbery is a felony offense, and thus, Gamble was barred by state and federal law from possessing a firearm.  See Brief for the Petitioner at 2, Gamble v. United States, No. 16-00090-KD-B, 2016 WL 3460414, at *1 (S.D. Ala. Jun. 21, 2016) (No. 17-646), 2018 WL 4329089, at *1–2.  Seven years later, Gamble was prosecuted for being a felon in possession of a firearm, in violation of a state law and was given a one-year sentence.  Brief for the Petitioner, supra, at 2.  While the state charge was pending, Gamble was indicted by the federal government again for “being a felon in possession of a firearm,” arising out of the same incident that prompted the state charge and conviction.  Brief for the Petitioner, supra, at 2 (citing 18 U.S.C. § 922(g)(1) (2012)).

Gamble was sentenced to forty-six months in prison for the federal charge and subsequently appealed his conviction, arguing that the federal prosecution violated his Fifth Amendment right pursuant to the Double Jeopardy Clause.  Brief for the Petitioner, supra, at 3.  The District Court, relying on the separate sovereigns exception, ruled against Gamble.  Id.  Gamble subsequently appealed to the United States Court of Appeals for the Eleventh Circuit, which, in a per curiam opinion, also relied on the separate sovereigns exception to hold that “the district court did not err by determining that double jeopardy did not prohibit the federal government from prosecuting Gamble for the same conduct for which he had been prosecuted for and sentenced by the State of Alabama.”  United States v. Gamble, 694 F. App’x 750, 751 (11th Cir. 2017) (per curiam).  Now that oral arguments have concluded, the Supreme Court will issue an important decision that may overrule nearly one hundred years of precedent and eliminate a dangerous Double Jeopardy loophole that allows individuals to be prosecuted twice for the same offense. See Cole & Trivedi, supra; SCOTUSblog, supra.

III.  GAMBLE’S ARGUMENT

Gamble asserts that the separate sovereigns exception should be overruled because it conflicts with the original meaning and text of the Fifth Amendment, and it departs sharply from the purpose of the Double Jeopardy Clause.  This interpretation makes the Double Jeopardy Clause less protective of individual rights now than it was when it was first ratified.  See Brief for the Petitioner, supra, at 9–11.  Gamble relies on evidence that the Constitution’s framers intended the Double Jeopardy Clause to reflect the English common law rule, which prohibited consecutive prosecutions by separate sovereigns.  Id. at 11.  Additionally, the ACLU and the Cato Institute submitted a joint amicus curiae brief to the Supreme Court in support of the petitioner, arguing that the separate sovereigns exception is not supported by the text of the Double Jeopardy Clause, which focuses specifically on the person who is being charged and does not mention the sovereigns who are doing the charging.  See generally Brief of Constitutional Accountability Center, Cato Institute, American Civil Liberties Union, and American Civil Liberties Union of Alabama as Amici Curiae in Support of Petitioner, Gamble v. United States, No. 16-00090-KD-B, 2016 WL 3460414, at *1 (S.D. Ala. Jun. 21, 2016) (No. 17-646), 2018 WL 4941711 (emphasis added).

Furthermore, Gamble argues that the separate sovereigns exception runs afoul of the fundamental principle of fairness that the Double Jeopardy Clause was meant to protect.  See Brief for the Petitioner, supra at 28.  This allows defendants, like Gamble, “who have already been convicted or acquitted of an offense” to be punished twice for the same crime.  Id.  As an example, Gamble relies on the Supreme Court’s decision in Heath, in which the defendant pleaded guilty to murder and was sentenced to life in prison in Georgia and was subsequently tried and sentenced to death for the same crime in Alabama.  See id.; Heath v. Alabama, 474 U.S. 82, 84–87 (1985).  The Heath Court affirmed the defendant’s conviction in Alabama based on the separate sovereigns exception.  Heath, 474 U.S. at 93–94.  Moreover, Gamble relies on Justice Black’s dissent in Bartkus, contending that the people who will be most affected by double prosecutions “will most often be the poor and the weak in our society;” who are those who do not have the resources to “influence prosecutors not to try them again.”  See id.; Bartkus v. Illinois, 359 U.S. 121, 163 (1959) (Black, J., dissenting).

In 1969, the Supreme Court held that the Double Jeopardy Clause of the Fifth Amendment was incorporated to the states through the Fourteenth Amendment.  See Benton v. Maryland, 395 U.S. 784 (1969).  Gamble argues that because the separate sovereigns exception was formed with the understanding that the Double Jeopardy Clause did not apply to the states, the Supreme Court’s subsequent decision to incorporate it destroyed the “core doctrinal premise” that the exception was founded on, and thus stare decisis should not prevent the Supreme Court from overturning the exception.  See Brief for the Petitioner, supra, at 35.  To prevail, Gamble will likely have to show that it is no longer appropriate for the Supreme Court to enforce its own precedent with regards to the separate sovereigns exception.  Id.

IV.  THE UNITED STATES’ ARGUMENT

The United States argues that the separate sovereigns exception is settled law, and therefore, should not be overturned by the Supreme Court.  See Brief for the United States in Opposition at 5–6, Gamble v. United States, No. 16-00090-KD-B, 2016 WL 3460414, at *1 (S.D. Ala. Jun. 21, 2016) (No. 17-646), 2018 WL 461223, at *5–6.  In the United States’ Brief in Opposition to Gamble’s Petition for Certiorari, the United States argues that the Double Jeopardy Clause allows “successive prosecutions by separate sovereigns” for crimes that have the same elements because violations of the laws of separate sovereigns are not considered the “same offence” “within the meaning of the Double Jeopardy [C]lause.”  Id. at 4.  The United States further relies on Lanza and argues that a state and the federal government and are two separate authorities, which derive power from different sources.  Id. at 5; see also Lanza, 260 U.S. at 382.

Moreover, the United States cites the Supreme Court’s decision in Bartkus, arguing that the separate sovereigns doctrine has been a “long-held” principle by the Court and should not be overturned.  See Brief for the United States in Opposition, supra, at 6 (citing Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1870 (2016)).  In Bartkus, the Court stated that overturning the separate sovereigns exception “would be a disregard of a long, unbroken, unquestioned course of impressive adjudication for the Court.”  Bartkus v. Illinois, 359 U.S. 121, 136 (1959).  The United States also argues that the separate sovereigns exception is consistent with the basic structure of our system of government as the federal government and state governments are separate.  See Brief for the United States in Opposition, supra, at 6.  In support of this proposition, the United States cites Justice Kennedy’s concurring opinion in U.S. Term Limits, Inc. v. Thornton, which sets out that the framers of the Constitution “split the atom of sovereignty,” and it was their intent to have state and federal governing bodies, each separate and free from intrusion from each other.  514 U.S. 779, 838 (1995) (Kennedy, J., concurring).

V.  CONCLUSION

Considering that the Supreme Court has almost one hundred years’ worth of precedent to support the separate sovereigns exception, it is unlikely that the Court will decide to overturn this doctrine now.  However, Gamble’s argument is compelling.  As Gamble states in his brief, the Supreme Court has, on many occasions, overturned its own precedent.  See Brief for the Petitioner, supra, at 31.  The Supreme Court currently has the opportunity to abolish an unfair exception to the Double Jeopardy Clause—one that has caused some individuals to be tried and convicted twice for the same crime.   See Cole & Trivedi, supra.  Thus, if the Supreme Court rules in favor of Gamble, this will show the Court’s commitment to justice and fairness rather than precedent.

*Emma is a second-year law student at the University of Baltimore School of Law, where she is a staff editor for Law Review. Emma is also a member of the Royal Graham Shannonhouse III Honor Society and in Fall 2018, was a Teaching Assistant for Professor William Hubbard’s ILS/Civil Procedure class. Emma is currently an intern for the Honorable Sally D. Adkins of the Maryland Court of Appeals. She will be working this summer as a law clerk at Alperstein & Diener.

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