On December 6th, the U.S. Supreme Court heard oral argument in the case of Gamble v. United States, which concerns double jeopardy and the separate sovereigns doctrine. Without question, this case will have massive implications for our country.
Why? Because, at its core, this case calls into question the ability of both the federal government and states to prosecute citizens for the exact same conduct and impose separate punishments.
The Heart of the Case: Double Jeopardy and the “Separate Sovereigns” Doctrine
The essence of Gamble v. United States revolves around the meaning of the double-jeopardy clause in the Fifth Amendment to the U.S. Constitution. That part of the Constitution provides that no person shall ““be subject for the same offense to be twice put in jeopardy.”
In other words, the double-jeopardy clause seems to prevent someone from being tried twice for the same crime. The basic rule from the double-jeopardy clause is understood by everyday Americans to say, “prosecute me once, shame on me; prosecute me twice, then you violate the Constitution.”
Turns out, things are never so simple when the Supreme Court gets involved. What happens when a person commits a crime, like possessing a gun when they were previously convicted of a felony, that violates both state and federal law? Does the Constitution prohibit a second prosecution for the crime, by say the federal government, after a person has already been convicted in a state court for the same acts?
Under current law, the answer to this question is “yes.” The federal government can prosecute you for a crime that is virtually identical to the crime you were already convicted of in a state court.
In fact, for many years now, the U.S. Supreme Court precedent has been that a person can be tried in both federal and state court for offenses arising from the same incident. The Court’s reasoning has been that the federal government and a state government are different sovereigns with a different set of criminal offenses. This rule was also created by the courts at a time before the Supreme Court held that the double-jeopardy protections in the Constitution applied directly to the states.
These principles are what is called the “separate sovereigns” doctrine or the “dual sovereignty” doctrine.
Gamble’s Challenge to the “Separate Sovereigns” Doctrine
Terance Gamble was pulled over in Alabama. The police, smelling marijuana, searched Gamble’s car and discovered marijuana, a scale, and a handgun. Gamble was convicted under the Georgia state law which prohibited felons from possessing a firearm.
After Gamble’s Georgia conviction for the firearm possession was final, the federal government then brought new a new federal case against Gamble. The charge? Being a convicted felon in possession of a firearm. The only difference was that the federal case claimed Gamble violated the federal law which made Gamble’s conduct illegal.
Gamble tried to challenge the federal prosecution by saying it violated the Constitution’s Double-Jeopardy clause. Gamble argued that he was twice being put in jeopardy of facing criminal punishment for the same facts. Unfortunately for Gamble, he was facing decades of U.S. Supreme Court precedent approving of these types of cases under the “separate sovereigns” doctrine.
Gamble lost his challenge in every lower court because of existing precedent which those courts had to follow. Gamble eventually wound up challenging the “dual sovereignty” doctrine in the U.S. Supreme Court and asking the court to throw out these archaic rules.
Gamble put out a number of arguments during oral argument before the Court on December 5th. Those arguments included:
- The actual text of the double-jeopardy clause does not allow for a “separate sovereigns” exception. Instead, the plain text of the Constitution states that a person should not be tried for the same offense twice.
- The purpose of the clause is not served by allowing two consecutive prosecutions for the same conduct. Indeed, the “separate sovereigns” doctrine runs counter to the notions for finality and fairness to defendants that the double-jeopardy clause was meant to protect.
- Some justices on the Court have expressed discomfort with the “separate sovereigns” doctrine in the past.
- Also, earlier U.S. Supreme Court decisions that established the doctrine did so at a time when federal criminal law was limited. The Court believed that multiple prosecutions by a state and the federal government would be rare because most criminal law was handled by the states. Since that time, however, federal criminal law statutes have expanded significantly.
The Government’s Case to Keep the Doctrine Alive
At oral argument, the Government countered Gamble’s position by arguing the following:
- The “separate sovereigns” doctrine should remain in place because the text of the double-jeopardy clause says that a person should not be tried for the same “offense” twice, not for the same “conduct.” The distinction between “offense” and “conduct” is important because a person can commit more than one offense in the same incident, or course of conduct.
- Indeed, the same conduct can violate multiple laws, some federal and some state. If the framers of the Constitution wanted Gamble’s interpretation of the clause, they would have used the term “conduct” or “acts,” rather than “offense.”
- Moreover, the “separate sovereigns” doctrine has been the existing law for years, and there is no reason to upset that settled precedent. That is particularly true under the Court’s own commitment to maintain the stability and credibility of its decisions by honoring past decisions under the concept of stare decisis, meaning the “thing has been decided.”
- Overruling the doctrine would create new problems. Courts would have to spend resources to determine whether two sovereigns are actually targeting the same “offense,” and the U.S. could not prosecute a person who was previously tried in a foreign country for a terrorist act.
- The doctrine has no practical unfairness in most cases because in Gamble’s case his state sentence and his federal sentence were ordered to be served at the same time, i.e., concurrently. Thus, Gamble himself was, in practical terms, not punished twice.
- Finally, the decision to change the doctrine is something for the political branches to do, not the courts. This type of policy choice about the meaning of the double-jeopardy clause is a political question.
The government’s claim that these types of dual prosecutions are not common is pretty disingenuous. In fact, Gamble was specifically targeted using the “separate sovereign” doctrine as part of an organized effort by the DOJ to punish people with domestic violence prior convictions more severely.
Also, even if a punishment is usually ordered to run concurrently, that is not always the case. Federal courts routinely impose a punishment that runs consecutively, at least in part, to a state conviction. An additional prosecution and conviction may have future collateral consequences for a person too in the form of enhancement sentencing ranges.
Of course, none of the government’s offered rationales account for the financial and emotional toll a person faces each time they are dragged in to court by a “separate sovereign” for the same facts.
What is most interesting about this case, making it the case of the week, is that the legal fate of Mr. Gamble is really not the biggest takeaway from this case. What happens once the Court hears and decides this case has implications for our entire system of government and the rule of law.
We will keep everyone posted about Gamble. Hopefully the Court hands down a favorable decision.