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Stop Ignoring Double Jeopardy: New at Reason

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

AmazonAmazonNo 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, Jacob Sullum writes.

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.

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  • Eddy||

    Yes, go on...

  • chemjeff radical individualist||

    Yeah, it's bullshit. The alleged "crime" (owning a gun shouldn't be a crime anyway) only occurred once. Therefore even if you think that Gamble did commit a crime, he only committed a crime ONCE and should be punished only ONCE for his crime.

  • Bubba Jones||

    Well, I would assume that this is not the only time he has carried illegally.

    But no, it shouldn't be a crime unless it is a condition of parole.

  • Alan Vanneman||

    Speak up, Jake. Don't be shy.

  • Rich||

    If the Supremes rule against Gamble then brace yourself for a lot more laws.

  • SQRLSY One||

    But the judges and lawyers and cops and jailors and parole officers and social workers LIKE it when you can be run through the ringer 23,543 times for the same offense... The more often that they play, the more often that they get paid!

  • SQRLSY One||

    http://www.azlyrics.com/lyrics.....below.html

    Bob Seger Lyrics
    "The Fire Down Below"

    ...
    Here come the men faces hidden from the light
    All through the shadows they come and they go
    With only one thing in common
    They got the fire down below

  • sarcasmic||

    It's not even getting paid. Judges, prosecutors and cops believe they are incapable of error. That's what power does to people. When someone is found not guilty, in their minds a guilty person was set free. The person wouldn't have been arrested if they weren't guilty. So the more chances they have to try the person for the same offence, the more chances there are to make sure a jury gets it right. By right I mean guilty.

  • Ordinary Person||

    Good luck getting a conservative judge to walk back state power using federal power.

  • chipper me timbers||

    6-3 with Gorsuch and Thomas and Sotomayor dissenting

  • Jgalt1975||

    My recollection is that Ginsburg has expressed skepticism about the dual sovereigns doctrine before too.

  • SQRLSY One||

    I'd like to see this implemented:

    If one single action committed by the offender is a crime at both the state and the federal level... Be it murder, or polluting with plutonium, or polluting with carbon dioxide... Hey you over there! Stop exhaling!!!... Or hurting my baby feelings... Then the state can prosecute under their laws, and the feds may NOT!

    Heck, I'd even settle for, in such cases, flip a coin to see who can, and who cannot, prosecute. ANYTHING along these lines would be better than what we have now! The feds can run deficits and charge our grandchildren for putting 80% of us-all in jail, and the states can NOT... And fed politicians LOVE to grandstand, and pass ALWAYS MORE MORE MORE laws to "protect" us all! Last but not least, prosecutors LOVE to wring more "plea bargains" out of us, by threatening the always-stiffer fed punishments.

    It is high time to BREAK this logjam, by hook or by crook!

  • Earth Skeptic||

    Once we do away with States, this problem will take care of itself.

    And later, the One True Global Government.

  • Bubba Jones||

    I am ok with having both federal and state penalties so long as they are concurrent and not additive.

    I am not ok with the government taking two swings at a conviction. There should be a single, consolidated trial where both federal and state laws are considered. Federal courts routinely review cases under state law so this shouldn't be an issue.

  • Agammamon||

    Its not that simple.

    Often the elements of an individual crime are different in the state laws compared to the federal ones. There are different things to prove.

    That's on top of differing court procedures between states and the feds.

    Civilly, if there's a 'federal nexus' the litigants often ask that the case be moved to a federal court and tried there - and that's what would happen criminally - if its a crime both at the state and federal level then it gets tried federally. Which ends up giving the federal government a lot more power to set policy across the country.

    Reign in what the federal government can make illegal and this goes away.

  • Dillinger||

    >>>one against the state of Alabama and one against the federal government

    fucking stupid.

  • Ron||

    If two people live in a house and you burgle the house have you committed two robberies one for each resident

  • Agammamon||

    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.

    Its a drawback to the system we have, yes. But do you want every crime to be a Federal crime? Without 'dual sovereignty' there is no federalism - its not going to be the Federal government that loses the priviliege to say what is or is not a crime. Imagine if there were no state police - its all Federal and run from DC. Now imagine states not being able to legalize drugs. Or even interracial marriage.

    The issue with our CJS is not dual sovereignty - its our insistence on allowing cross-jurisdictional operation by law enforcement agencies and the blanket freedom we allow the Federal government in making things crimes outside of federally-owned properties. When Border Patrol can stop you for speeding, when campus police forces can patrol off-campus, when the DEA can decide what you can or can not ingest - those are the problems with our CJS.

  • 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.

  • TW||

    If you want to argue that some things which are federal crimes shouldn't be, feel free. But State governments and the federal government aren't some single entity (i.e. the states are not subunits of the federal government, they are their own separate governments under our federalist system), they are entirely separate jurisdictions and "double jeopardy" means that they individually can't try someone twice for the same crime, it doesn't mean that if one of them tries someone for a crime in their jurisdiction that the other one is then barred from also trying them for a crime in their jurisdiction.

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