Can the State and the Federal Government Both Prosecute You for the Same Act?

Update (October 2026): The Supreme Court decided this case on June 17, 2019. By a 7-2 vote, it kept the separate sovereigns doctrine. A state and the federal government can still each prosecute you for the same act. See Gamble v. United States, 587 U.S. 678 (2019). The post below was written before the decision, right after oral argument.

On December 6, 2018, the Supreme Court heard argument in Gamble v. United States. The question was whether both a state and the federal government can prosecute and punish a person for the same conduct.

We wrote at the time that the case would have massive implications for the country. At its core, it questioned whether two governments could prosecute people for the exact same conduct and impose separate punishments.

What double jeopardy and "separate sovereigns" mean

The Fifth Amendment says no person shall "be subject for the same offense to be twice put in jeopardy." This is the Double Jeopardy Clause. Most people read it to mean you cannot be tried twice for the same crime. As the everyday version goes: "prosecute me once, shame on me; prosecute me twice, then you violate the Constitution."

Things are rarely that simple once the Supreme Court gets involved. Some acts break both state and federal law, and being a felon with a gun is one example. So can the federal government charge you after a state court already convicted you for the same gun?

Under long-standing Supreme Court law, the answer is yes. The federal government can prosecute you for a crime that is virtually identical to one you were already convicted of in state court. The Court has treated a state and the federal government as separate "sovereigns," each with its own laws. A crime against each one is a separate offense. This is called the "separate sovereigns" or "dual sovereignty" doctrine.

That rule began before the Supreme Court held that the double jeopardy protection applies to the states.

Terance Gamble's case

Police in Alabama pulled over Terance Gamble. They smelled marijuana, searched his car, and found marijuana, a scale, and a handgun. Gamble had a prior felony conviction, so he was charged under Alabama's felon-in-possession law.

After his state case, federal prosecutors charged him with being a felon in possession under federal law. It was the same gun and the same facts.

Gamble argued the federal case violated double jeopardy. He faced decades of Supreme Court precedent approving these cases, and he lost in every lower court because those courts had to follow it. So he asked the Supreme Court to throw out what he called archaic rules.

Gamble's arguments against the doctrine

• The text of the clause has no "separate sovereigns" exception. The plain text says a person should not be tried for the same offense twice.
• Two prosecutions for the same conduct undercut the clause's purpose: finality and fairness to defendants.
• Some justices had questioned the doctrine before.
• When the doctrine started, federal criminal law was small. The Court expected state-and-federal prosecutions for the same act to be rare because states handled most crime. Since then, federal criminal law has grown a great deal, so overlap is common.

The government's arguments for keeping it

• The clause bars two prosecutions for the same "offense," not the same "conduct." One act, or one course of conduct, can break several laws, some federal and some state. If the framers had meant Gamble's reading, they would have written "conduct" or "acts" instead of "offense."
• The doctrine is long settled. The Court should respect its past decisions to keep its rulings stable and credible. This principle is called stare decisis, meaning "the thing has been decided."
• Ending it would cause problems. Courts would have to spend time and money deciding whether two governments were really targeting the same "offense." And the U.S. might not be able to prosecute a terrorist already tried in another country.
• Gamble's state and federal sentences ran at the same time (concurrently), so in practice he was not punished twice.
• Any change should come from Congress and the other political branches, not the courts. The government called this a policy choice, a political question.

Our view at the time

The original article called the government's suggestion that these double prosecutions are uncommon "pretty disingenuous." It said Gamble was specifically targeted under the doctrine as part of an organized Justice Department effort to punish people with prior domestic-violence convictions more severely. (Note, October 2026: the Supreme Court's opinion describes Gamble's prior felony as second-degree robbery. The details of the program the article described have not been confirmed.)

Concurrent sentences are not guaranteed. Federal judges often order a federal sentence to run at least partly after a state sentence (consecutively). A second conviction can also raise sentences in future cases.

None of the government's points address the financial and emotional toll a person faces each time a "separate sovereign" drags them into court for the same facts.

We also thought the biggest takeaway was not Mr. Gamble's own fate. How the Court decided the case would affect our entire system of government and the rule of law. We hoped the Court would rule in his favor.

How the Supreme Court ruled

The Court sided with the government 7-2. Justice Alito wrote for the majority, and Justices Ginsburg and Gorsuch dissented. For more on the argument itself, see our oral argument recap.

If you face state and federal charges for the same conduct

Gamble means a second prosecution is legal, but it is not automatic. The Justice Department's "Petite Policy" generally discourages a federal case after a state prosecution for substantially the same act unless senior officials approve it. See Justice Manual 9-2.031. Defense counsel can raise that policy with prosecutors, though it does not give a defendant a right a court will enforce.

If both cases go forward, how the sentences fit together matters. A federal judge can order a federal sentence to run concurrently with, or consecutively to, a state sentence, including one not yet imposed. See 18 U.S.C. § 3584 and Setser v. United States, 566 U.S. 231 (2012). Make sure your federal lawyer knows about every pending state case before sentencing.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.