Gamble and the Reason for Double Jeopardy

Update (October 2026): On June 17, 2019, the Supreme Court decided Gamble against the defendant. It kept the "separate sovereigns" rule, so a state and the federal government can still each prosecute you for the same conduct. Gamble v. United States, 139 S. Ct. 1960 (2019). The post below was written while the case was pending. For the separate sovereigns question in more detail, see Double jeopardy and separate sovereigns.

Yes. A state and the federal government can each prosecute you for the same act, and the Supreme Court confirmed that rule in Gamble v. United States. This post explains why, and what the case asked while it was pending.

The Fifth Amendment says no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." This is the double jeopardy rule: you cannot be tried twice for the same crime. It is one of the better-known rules of the criminal justice system, which is why Gamble drew so much attention.

Why the Double Jeopardy Rule Exists

The rule keeps the government from wasting resources on repeat prosecutions, and it protects you from being prosecuted over and over for the same thing. It also gives finality: once a case is over, it is over. Because it is a constitutional right, every state must follow it, and states can give more protection than the Constitution requires.

Double Jeopardy Rule

The rule applies to misdemeanors, felonies, and juvenile cases. It kicks in (lawyers say jeopardy "attaches") when the jury is sworn in, or, in a trial before a judge alone, when the first witness is sworn. If charges are dismissed before trial, jeopardy has not attached, and you can be charged again.

The "Separate Sovereigns" Exception

The federal government and a state can both prosecute you for the same act, and so can two different states. This is called the "separate sovereigns" (or "dual sovereignty") doctrine. The idea is that one act can break both state and federal law, and those are two different offenses.

The Supreme Court has followed this rule for about 170 years. Supporters say it lets both the states and the federal government enforce their own laws.

According to the original article, almost half of the states have chosen not to use the separate sovereigns exception, meaning they will not prosecute you for the same offense you were already tried for under federal law. More common is a state charge under a state law that was also broken during the federal crime, but that is not exactly the same crime.

The Facts of Gamble

The facts of the case were fairly ordinary, but its possible effect on the double jeopardy rule drew a lot of attention. Terance Gamble had a prior conviction for second-degree robbery. In 2015, a Mobile, Alabama, police officer pulled him over for a damaged headlight and found marijuana and a handgun. Because of his robbery conviction, having the gun was a crime under both Alabama and federal law.

Gamble pleaded guilty to the state charge and was sentenced to one year in prison. Federal prosecutors then charged him for the same gun possession, and he received a federal sentence on top of his state sentence. The original article put the added federal time at 34 months.

He argued the separate sovereigns rule violated double jeopardy. The Eleventh Circuit rejected that argument and upheld the federal sentence. Because the facts were so simple, both sides focused on whether the separate sovereigns rule is constitutional. The Supreme Court heard oral argument on December 6, 2018.

Why the Impact Would Have Been Limited

Some criminal justice reform advocates were excited that Gamble might strengthen double jeopardy protections. The original article cautioned that it might turn out to be, at best, only a step in the right direction. Even a win for Gamble might have had a narrow effect, because the Blockburger rule still allows separate charges arising from the same conduct. Under the Blockburger test, two charges are different offenses if each one requires proof of a fact the other does not. Because state and federal laws are often written differently, there would still have been a fairly large opening for a federal prosecution to follow a state conviction for the same conduct.

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