Reason.com

Free Minds & Free Markets

Stop Ignoring Double Jeopardy

The Supreme Court should reconsider the misbegotten "dual sovereignty" doctrine.

No one disputes that Terance Gamble, who was convicted of second-degree robbery in 2008, broke the law by possessing the pistol that a police officer found in his car during a traffic stop in Mobile, Alabama, seven years later. In fact, he broke two laws, since both Alabama and the federal government bar people with felony records from owning guns.

Does that mean Gamble committed two offenses? That's the question at the heart of a case that gives the Supreme Court an opportunity to reconsider a longstanding but misbegotten exception to the constitutional ban on double jeopardy.

Gamble, whose case the Court will hear on Thursday, was prosecuted and sentenced twice for illegal gun possession, once in state court and once in federal court. As a result, he will remain in prison until February 2020, which is three years later than he would have been released if his punishment had been limited to the state sentence.

On the face of it, Gamble's double punishment violates the Double Jeopardy Clause, which prohibits trying someone twice "for the same offense." But according to a doctrine the Supreme Court first enunciated in 1852, Gamble was punished for two distinct offenses: one against the state of Alabama and one against the federal government.

As Gamble's lawyers show in their Supreme Court brief, this "separate sovereigns" or "dual sovereignty" doctrine contradicts the original public understanding of the Double Jeopardy Clause, which embodies an ancient principle with deep roots in English common law. The relevant English cases, early legal commentary in the United States, and two 1820 decisions by the Court "unequivocally rejected the notion that two sovereigns could punish a defendant for the same crime."

As a brief filed by University of Utah law professor Paul Cassell and three other legal scholars explains, "there was no dual sovereignty doctrine before the mid-19th century." The Court initially embraced the idea in defense of slavery and later used it to shore up Prohibition.

"The Court invented dual sovereignty largely to prevent free states from blocking the recapture of fugitive slaves," Cassell et al. write. The justices worried that free states would undermine the Fugitive Slave Act by giving abolitionists a slap on the wrist for harboring runaways, thereby preventing federal prosecution.

In the 1920s, the justices had similar concerns about state resistance to enforcement of the 18th Amendment. "If a state were to punish the manufacture, transportation and sale of intoxicating liquor by small or nominal fines," the Court worried in a 1922 decision reaffirming the dual sovereignty doctrine, "the race of offenders to the courts of that state to plead guilty and secure immunity from federal prosecution for such acts would not make for respect for the federal statute."

Thanks to the Court's ahistorical, result-oriented invention of the dual sovereignty doctrine, defendants like Gamble can be punished twice for the same crime, while others who are acquitted in one court can be tried again in another. The arbitrary power that option gives prosecutors is especially dangerous in light of the bloated federal criminal code, which has expanded so much during the last 60 years that no one has managed to count the offenses it includes.

Overlap between state and federal crimes, once rare, is now commonplace. "Given this explosion of federal crimes," Gamble's lawyers note, "nearly every crime can be charged both in state court and in federal court."

Justice Department guidelines are supposed to ensure that prosecutors are selective in deciding when federal interests have not been sufficiently vindicated in state court. But if a run-of-the-mill gun case like Gamble's qualifies, anything can, and the finality of state criminal proceedings is subject to the untrammeled whims of federal prosecutors.

The Trump administration argues that "any concerns of potential unfairness from particular separate prosecutions are best addressed by policymakers." But that unfairness has already been addressed by the Double Jeopardy Clause, if only the Supreme Court would stop pretending otherwise.

© Copyright 2018 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Dace Highlander||

    Well, ~to be sure~, it's a crying shame to have felons able to be tried by both the state and federal governments, BUT OH MY GOD!!! if a police officer is found not guilty in a state court, Reason can't scream fast enough for a federal prosecution of the same offense.

  • Mithrandir||

    Can you link me to several examples of Reason articles that specifically call for cops found not-guilty at the state level to be tried federally?

    Thank you.

  • Wise Old Fool||

    lol *chirp chirp* *cricket sounds*

  • ||

    To be sure, it's not at all unheard of for cops are acting both on behalf of the state and federal governments. Not sure that means there's a case for two trials but answering to the boss and the bosses boss doesn't seem doesn't seem like an unreasonable imposition that we wouldn't shouldn't put on civilians.

  • fdog50||

    When this happens it is on a federal charge that is punishes the same conduct under a different definition. For example, if a police officer beats a person and is acquitted by a state criminal jury, the federal government will charge that officer with the federal crime of depriving a person of his civil rights, and the behavior will be the same actions for which he was acquitted in the state case. I think this is what happened in the Rodney King incident, especially after the riots following the acquittal.

  • bacchys||

    It's happened a few times. Not often.

    The cop who killed Walter Scott had a hung jury in his state trial, but then pled guilty to a Federal civil rights offense.

    It's probable he wouldn't have faced the Federal charges had one nitwit decided he couldn't vote guilty if a cop is the defendant (per his fellow jurors).

  • ||

    That's exactly what happened in the Rodney King case. And the riots were clearly the precipitating factor. Prosecutors had to do *something* to show they were on the side of justice and fairness (and responsive to rioting mobs), so they took the same cops to federal court (in a less white geographical location) for the same acts for which they had been charged, tried, and acquitted in state court - and got convictions.

    Voila! No more riots.

  • a ab abc abcd abcde abcdef ahf||

    Regardless of the legal quibbles of the 9th and 10th Amendments and what happened in 1678 in Portugal and England, double jeopardy of any sort offends the spirit of preventing someone being tried twice for the same incident. I'm surprised that interstate banking, mail orders, and now the Internet haven't induced several states to charge some poor sod with the same crime just to all get their hooks in him.

    Part of this claptrap stems from the theory that government prosecutors are protecting "the people" by treating laws as offending the government and leaving the victims entirely out of it. Even that fails the smell test, since "the people" of the individual state have already had their recourse; why should they get to be offended twice when the feds jump in? Why not start at the bottom and let the city get first crack, then the county, then the state, then the feds?

    Anyone arguing for double jeopardy is just a statist fuck.

  • JFree||

    I never realized the origin of that 'dual sovereignty' stuff. It's been turned into one of the justifications for the Lost Cause interpretation of 'states rights'. And like most of those, a bit of digging reveals that the opposite was true. That it was the slave states which wanted to override state authority - because they ran the federal govt without that noodgy 'compromise' stuff. Once they lost that fed control (for really the first time), they decided that states were the only true sovereign.

    Not sure whether dual sovereignty can/should be fully eliminated now that the 14th creates dual citizenship - and therefore a positive obligation by the feds to protect specific rights of US citizens. But maybe it should only be legally allowed in that defensive/protective role

  • a ab abc abcd abcde abcdef ahf||

    There is NO justification for dual sovereignty nonsense, and there is NO justification for trying someone twice for the exact same incident. Rationalizing double jeopardy as being two distinct crimes against two distinct governments is just a statist excuse for try try again if you don't get the feel-good results from the first try. The English at least rejected that nonsense in 16xx.

    All "try try again" really shows is how feeble the theory is that murder and other real crimes offend the government in the name of the people, which in turn justifies only letting governments prosecute crime. In reality, the people would be far better served if victims were the prosecutors and politicians were left to politics instead of prosecution and judging.

  • JFree||

    there is NO justification for trying someone twice for the exact same incident.

    Just need to look at our own history.

    In Jim Crow south, blacks were not allowed in the jury pool - because they were kept off the voting roll. If they tried to get on the voting roll, they were lynched - where if there was even a trial for that (aside from a profroma court action to ensure 'double jeopardy' kicks in) the trial was entirely about nullifying murder laws because that all-white jury pool wanted to keep future jury pools all-white and murder was deemed an acceptable (though maybe a bit sleazy) means to that end. A literal shit-ton of other examples of deliberately flawed 'trial' systems.

    Like it or not - a federal system allows states to set up their own trial systems - and there is no reason to assume they will do anything to protect a US citizen.

    The English can easily reject double jeopardy in entirety because they have always been a centralized state with ONE sovereign who brooked no nonsense challenging that sovereignty. Are you advocating eliminating the states entirely and turning us into a centralized system?

  • MikeP2||

    "there is NO justification for trying someone twice for the exact same incident"

    People are very commonly charged and tried for the same incident. For a drunk driver who kills someone, they may be charged with DUI, reckless endangerment, vehicular homicide, etc, etc. Each of those is a separate crime for the same incident.

    Federal crimes are no different than 2 state crimes for the same incident. There is really no difference, except now it involves a second court.

    There is no double jeopardy issue with charging someone with a state crime and a federal crime.

  • Exsqueezeyou||

    "There is really no difference, except now it involves a second court."

    FFS, I would call that an astronomically significant difference.

    "People are very commonly charged and tried for the same incident."
    Circular reasoning.

    Even the Rodney King cops were charged differently by feds and the states. So, your contention is that because a state court or jury may be corrupt it necessitates the individual, and not the state agents, punished for a corrupt government with a 2nd trial.

    And OJ should have been tried a 2nd time federally because of his jury. Amirite? Oh,wait, no. That would have brought more riots and the 2nd trial is supposed to prevent that. So, Jeff Session shoulda been federally charging every accused of pot possession when the state failed to charge or convict?

    The feds should allow state residents to enjoy the fruits of the gubermint they deserve.

  • Rossami||

    In case you missed the link buried in the article, there is an excellent and somewhat more detailed article over at The Volokh Conspiracy on the history of dual sovereignty.

  • loveconstitution1789||

    No one disputes that Terance Gamble, who was convicted of second-degree robbery in 2008, broke the law by possessing the pistol that a police officer found in his car during a traffic stop in Mobile, Alabama, seven years later.

    All gun control is not legal because its unconstitutional.

    2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    So, no, some people dispute that Gamble did anything illegal by having a pistol.

  • Exsqueezeyou||

    And shit cases that involve subjects like the dual sovereignty doctrine or other oppressive gubermint over reaches against liberty are why judges are reminded of the need for respecting precedent during their confirmation hearing.

    Any precedent to be overturned in favor of increased liberty for the accused individual should be encouraged in the land of the free. Let's face it, the gubermint never seems to suffer from any genuine shortage of resources, tools, power or mechanisms with which to punish targeted people.

  • Exsqueezeyou||

    "...genuine shortage of resources, tools, power or mechanisms with which to punish targeted people."

    The gubermint should be forced into overtly demonstrating its viciousness for achieving desired outcomes with incidents like Ruby Ridge and Waco instead of getting a 2nd bite at the apple by hiding behind illegitimate precedent and corrupt due process.

  • BYODB||


    "The Court invented dual sovereignty largely to prevent free states from blocking the recapture of fugitive slaves," Cassell et al. write. The justices worried that free states would undermine the Fugitive Slave Act by giving abolitionists a slap on the wrist for harboring runaways, thereby preventing federal prosecution.


    Haha, I appreciate that they basically just said that the courts invent law and no one blinks an eye.

  • Longtobefree||

    Silly me. I thought the constitution split law making between states and the feds, so there should not be any way two levels can make the same charge. Just shows a college degree is not worth all that much.

  • JdL||

    "No one disputes that Terance Gamble, who was convicted of second-degree robbery in 2008, broke the law by possessing the pistol that a police officer found in his car during a traffic stop in Mobile, Alabama"
    |

    Guess I'm "no one", then. The right to keep and bear arms is spelled out unambiguously in the Bill of Rights. There is no exception for being a convicted robber, or for anything else. Any law which violates the Constitution is null and void.
    |

    Oh, I know, the courts have completely neglected to enforce the Second Amendment, as they have so many things. That does not change the illegitimacy of laws violating it.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online