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Repudiating the 'Dual Sovereignty' Exception to the Double Jeopardy Clause Could Undermine the Federal War on Weed. Oh No!

The Supreme Court seems disinclined to overturn precedents allowing serial prosecutions of the same crime.

SCOTUSSCOTUSJudging from yesterday's oral arguments in Gamble v. United States, most members of the Supreme Court do not seem inclined to reconsider the "separate sovereigns" exception to the constitutional ban on double jeopardy. That doctrine, also known as "dual sovereignty," allows serial state and federal prosecutions for the same crime on the grounds that breaking the laws of two governments constitutes two offenses. While that rule seems inconsistent with the original public understanding of the Due Process Clause, most of the discussion yesterday focused not on the merits of that argument but on the dangers of overturning a longstanding yet historically dubious holding.

There is some dispute about exactly how old the dual sovereignty doctrine is, because the Supreme Court alluded to the idea as early as 1847 and enunciated it more explicitly in 1852 but did not officially embrace it until 1922, when it approved a federal prosecution for bootlegging after a state prosecution. In 1959 the Court approved a state prosecution for robbery following a federal acquittal for the same crime. Justice Elena Kagan described the dual sovereignty doctrine as "a 170-year-old rule," which is how Assistant Solicitor General Eric Feigen framed it. Louis Chaiten, the lawyer representing Terance Gamble, who is challenging his federal conviction for illegal gun possession following his state conviction for the same crime, disagreed with that characterization. But however you date the doctrine, several justices were clearly uncomfortable about overturning what they view as a venerable principle of constitutional law, even assuming that principle is fundamentally mistaken.

In addition to the repeated invocations of stare decisis, there was much discussion of the practical consequences of repudiating the separate-sovereigns exception. On that point, some of Feigen's hypothetical horrors look more like benefits to me. Without the dual sovereignty doctrine, he warned, the federal government might not be able to launch duplicative prosecutions of mass murderers, such as the perpetrator of the Pittsburgh synagogue massacre, who are already being prosecuted in state court. Since such federal cases are completely gratuitous and impinge on state autonomy, that strikes me as an argument in Gamble's favor.

And don't get Feigen started on marijuana. "Let's say someone's caught in California with 100 kilograms of marijuana, which is a misdemeanor in California, as the states point out in their brief, but is a felony under federal law," he said. "And he agrees to plead to the state offense, and, therefore, that would bar a federal prosecution for possession with intent to distribute" (which would trigger a five-year mandatory minimum). If you believe the Commerce Clause does not give Congress the authority to prohibit intrastate possession of marijuana and/or that people should not go to prison for conduct that violates no one's rights, Feigen's nightmare of state interference with the federal war on weed looks more like a dream come true.

Chaiten was keen to reassure the justices that the impact of enforcing the Double Jeopardy Clause as it was intended would be modest. Federal civil rights cases could still proceed even when based on conduct already punished by a state, he said, because the federal offenses involve additional elements, making them distinct crimes. Federal courts need not count foreign prosecutions of terrorists who kill Americans toward double jeopardy, he said, unless they recognize "the competent and concurrent jurisdiction of the first court." He also noted that 20 states have statutes that generally bar a second prosecution for a crime that has already been prosecuted by a "separate sovereign," while another 17 apply that rule to certain crimes, and that "seems to have worked out OK."

The justices who seemed most sympathetic to Chaiten's position were Ruth Bader Ginsburg and Neil Gorsuch.

"Is there another case where federalism has been invoked to strengthen the hand of government, state and/or federal, vis-á-vis an individual?" Ginsburg asked Feigen. "Federalism is usually invoked because it's a protection of the liberty of the individual, but here the party being strengthened is not the individual; it is the state's freedom and the federal government's freedom to prosecute the same offense."

Ginsburg was echoing a point that Gamble's lawyers made in their brief, and Gorsuch expanded on it. "I had thought in this country that the people were the sovereign and that...exercise of sovereignty was divided, not multiplied," he said. "So it was divided between the federal government and the state governments, Ninth and 10th Amendment. And that it is awkward, isn't it, to say that there are two sovereigns who get to multiply offenses against you? I can't think of another case where federalism is used, as Justice Ginsburg indicated, to allow greater intrusions against the person, rather than to protect more against them."

Gorsuch raised another argument emphasized by Gamble's lawyers: "With the proliferation of federal crimes, I think over 4,000 statutes now and several hundred thousand regulations [violations of which can be charged as crimes], the opportunity for the government to seek a successive prosecution if it's unhappy with even the most routine state prosecution is a problem."

Gorsuch also noted that the dual sovereignty rulings preceded the Court's application of the Double Jeopardy Clause to the states via the 14th Amendment. "We were concerned that the federal government would be at a disadvantage compared to states without this rule because states were not bound then by the Double Jeopardy Clause and could pursue a second prosecution after a failed federal prosecution," he said. "That rationale has now disappeared with incorporation."

Clarence Thomas, as is his wont, was silent during the oral arguments. But Chaiten's originalist claim seems like one that would appeal to Thomas, who two years ago joined Ginsburg in urging the Court to revisit the dual sovereignty doctrine. "The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct," Ginsburg wrote in a concurring opinion joined by Thomas. "Current separate sovereigns doctrine hardly serves that objective." She added that "the matter warrants attention in a future case in which a defendant faces successive prosecutions by parts of the whole USA."

The fact that the Court is hearing this case means at least two justices agreed with that recommendation. It looks like Gorsuch was one of them, and I'd guess that Chief Justice John Roberts was the other. Yesterday Roberts said he thought Chaiten was right that "we have not had a full consideration and exposition of the issue in any of our precedents." He also noted that the Justice Department's guidelines for serial prosecutions, which the government says can prevent any potential unfairness, show there is cause for concern. "That's an odd defense of a position to say, well, we take care of it somewhere else, so don't worry about it," he told Feigen.

Still, I see four votes at most in favor of reconsidering the dual sovereignty doctrine, which the Gamble brief calls "as uniformly criticized a rule of constitutional law as any," saying, "Even within legal academia—which tends to reward unconventional viewpoints—defenders of the exception are nowhere to be found." Given the Court's inclination to respect old precedents simply because they are old, even an indefensible principle is hard to dislodge.

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  • Fist of Etiquette||

    But however you date the doctrine, several justices were clearly uncomfortable about overturning what they view as a venerable principle of constitutional law, even assuming that principle is fundamentally mistaken.

    Thanks to the This Is How It's Always Been Done Clause of the Fifth Amendment.

  • Eddy||

    Closely related to the FYTW clause.

  • Dillinger||

    >>>the dangers of overturning a longstanding yet historically dubious holding.

    pussies. do the right thing, ladies.

  • organ meat pie||

    I have this fantasy that Roberts is looking to reform his image after his Obamacare decision and will find a way to get this one overturned. He would cement his place in history if it was his court was responsible for undoing dual sovereignty.

  • Dillinger||

    love unbridled optimism.

  • Diane Reynolds (Paul.)||

    Job 1: protect the system

  • Phos||

    We've got to protect our phony-baloney jobs, gentlemen.

  • Bubba Jones||

    The "right" answer seems to be that either we consolidate all state and federal charges into a single case and trial, or we give the feds the option to exert supremacy and remove the case to federal court PRIOR TO THE STATE TRIAL.

    I prefer the second option because it forces the feds to be more selective. It is too easy to imagine them filing a boilerplate motion to piggyback on every state prosecution.

    This way both sets of laws are prosecuted but they don't get two separate bites at the Apple.

  • a ab abc abcd abcde abcdef ahf||

    The right answer is replace government prosecution with victim prosecution. But that will never happen.

    Your answer sucks because it defaults to federal supremacy. Better is to leave that crap to the states.

    If your rejoinder is that murder is murder is murder and there ought to be one single standard, then you are leading up to passing the buck ever further, such as to the UN or some other world government. That way lies madness. Far better to decentralize as far as possible, and while decentralizing to individuals with victim prosecution is highly unlikely, we should at least work in that direction by keeping the feds out of it.

  • MatthewSlyfield||

    Too many victimless crimes for victim prosecution to work well.

  • a ab abc abcd abcde abcdef ahf||

    Show just one example of a victimless crime. How can any crime without a victim be a crime?

    Oh that's right, I offended the State.

    Fuck off, slaver.

  • Arcxjo||

    Abusing your own child. Yes, there's a victim, but not one who could feasibly or legally bring a case.

  • a ab abc abcd abcde abcdef ahf||

    Ah, you said victimless, I took you at your word.

    Doesn't take a rocket scientist to understand ways around that without involving the State.

    Fuck off, unimaginative slaver.

  • Bubba Jones||

    Murder.

  • Bubba Jones||

    Federal supremacy is a feature in this case because I know they didn't have the bandwidth to prosecute every case.

    As it is they get to cherry pick the outcomes they don't like. Forcing them to claim supremacy on the front end would dramatically limit their ability to double dip.

  • BYODB||

    I actually agree with you, at the very least, between just those two options. As it is now, if the State fails but they really don't like the defendant the Fed's can come in and put the screws to them.

    Which, notably, is the exact thing the founders were trying to stamp out. You'd need to be a Supreme Court Justice not to see it, apparently.

  • Mickey Rat||

    So we have to keep this constitutionally dubious doctrine to keep safe a constitutionally dubious authority over certain types of contraband. Why do we want to do that , again?

  • Zeb||

    When it comes to drug laws, they sit on two constitutionally dubious doctrines, this and the ridiculous reading of the interstate commerce clause that allows federal laws to apply to things that happen entirely in one state.

  • Mickey Rat||

    Right. That is why I find the argument circular. They go against the basic law of the land but because SCOTUS in the past gave it a pass, we have to from now on. I dislike the notion of dead precedent almost as much as the living constitution.

  • MatthewSlyfield||

    " I dislike the notion of dead precedent almost as much as the living constitution."

    The big problem is that dead precedent is inherently linked to living constituionalism. Have you never noticed that precedents that the living constitutionalists don't like are never dead or beyond reversal? The "living constituiton" was always meant by it's proponents to be a one-way ratchet. Living constitution for me, but not for thee.

  • Mickey Rat||

    That observation has occurred to me.

  • BYODB||

    "Living Constitution" is literally just a nicer way of saying "No Constitution At All" when it really comes down to it.

    Basically, Wilson thought amendments were too hard so he figured fuck bothering.

  • JFree||

    Clarence Thomas, as is his wont, was silent during the oral arguments.

    Has he EVER asked a question?

  • EscherEnigma||

    It's pretty rare, but back in 2016 he did: [Link to Atlantic article about it]

  • BestUsedCarSales||

    His remark that "at least as of now" gun possession is "still a constitutional right" injects partisan politics even further into the current furor surrounding the Court.

    That's a pretty fascinating statement from the author of that article.

  • Longtobefree||

    Or it is a statement that he is aware that politics trumps even the constitution over time. He is not injecting partisan politics, he is acknowledging that eventually the second amendment will be repealed; or just ignored completely instead of ignored partially.

  • BestUsedCarSales||

    On it's basis it's a statement of fact. And so it's not a ridiculous thing to ask. It is in the Constitution. Perhaps that doesn't actually mean much to many, but it is there.

  • MatthewSlyfield||

    That's not a statement from the author of the article, it's from Justice Thomas.


    Eisenstein, as gobsmacked as anyone else, made somewhat incoherent noises until Thomas elaborated. "You're saying that recklessness is sufficient to trigger a violation— misdemeanor violation of domestic conduct that results in a lifetime ban on possession of a gun, which, at least as of now, is still a constitutional right. . . . Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a state law?"
  • Diane Reynolds (Paul.)||

    I believe this was what BUCS was referring to: injects partisan politics even further into the current furor surrounding the Court.

  • BestUsedCarSales||

    I t'was. Sorry if that was unclear. My comment was about the articles comment on how observing that the 2nd Amendment is a Constitutional right is an injection of partisan politics.

    It highlights, to me at least, the wrong analysis is being done. Because it is in the Constitution, that's about as objective a fact as law can get.

  • Longtobefree||

    He is mostly thinking "how in hell did these idiots even think up these ridiculous theories?"
    And is so amazed at what comes before the court that he is struck dumb.

    Alternatively, he is acting like a judge, and reserves his thoughts for the actual opinions.

  • MatthewSlyfield||

    Or perhaps, something like:

    "If your argument is so poorly developed that I need to ask questions, you're screwed. Sucks to be you."

  • Mickey Rat||

    He tends to consider the written arguments more important and considers the oral arguments something of a sideshow.

  • Eddy||

    The only question Thomas ever asked was "Ginger or Mary Ann?"

  • Longtobefree||

    Well, maybe if they read my copy of the constitution, this would become clear.
    In my copy, the powers of the state and federal government are split up, a few, specific, powers are given to the federal government, and the rest are reserved to the states. So using my constitution, there is no action that could violate both a state law, and a constitutional federal law.
    See how simple?

  • JFree||

    14th Amendment does change that.

  • dma||

    The 14th Amendment did not turn the USA into the "Unitary State of America". We also don't have the option of switching to Canadian federalism in which all criminal law is centralized in the federal government. The 5th Amendment is already incorporated against each sovereign state individually. Remember that we aren't just talking about two sovereigns, but potentially multiple states (see Heath v. Alabama).

    I am probably in the minority here but I consider federalism to be every bit as important as my libertarianism.

  • Mithrandir||

    Agreee. I don't understand how people who are supposed to be Constitutional scholars and vow when being sworn in to uphold the Constitution. Hearing a lawyer explain how the current dual sovereignty doctrine demonstrably violates both the letter and intent of the writing, but responding "But old precedent! And drugs!" should be grounds for dismissal from the Court due to inarguably shitting on that sworn statement they made.

  • BYODB||

    Recall that Kagan is literally a political appointee with no background whatsoever to qualify her for the position. That should make the rest a little clearer.

  • Bubba Jones||

    There should be no federal gun laws or drug laws.

  • Enjoy Every Sandwich||

    Unfortunately this seems to be the norm: the courts don't consider the constitutionality of a given law, but rather whether striking it down will inconvenience some government asshat.

  • BYODB||


    most of the discussion yesterday focused not on the merits of that argument but on the dangers of overturning a longstanding yet historically dubious holding.


    That's because the Supreme Court doesn't give a fuck what's written in the constitution, they care about legislating from the bench. I don't think you could get anyone on that court who would rule otherwise, at this point.



    Justice Elena Kagan described the dual sovereignty doctrine as "a 170-year-old rule," which is how Assistant Solicitor General Eric Feigen framed it.


    Well, since she's never been a judge before in her life I suppose we should just excuse her for making the case that since it's a rule, that's explicitly against the plain language of the constitution, that it should be nixed.


    My Prediction:


    The SC rules that this practice is perfectly ok, even though the 14th amendment put to bed the notion there were two sovereigns. I predict the the incorporation doctrine won't even be mentioned, but hell I will at least admit the Justices on the supreme court no doubt know way more about the law than me. Maybe it shouldn't apply, it just seems like it should to me.

  • Eddy||

    "I had thought in this country that the people were the sovereign and that...exercise of sovereignty was divided, not multiplied"

    Now that's an awesome one-liner, for a judge at least.

  • chipper me timbers||

    "The justices who seemed most sympathetic to Chaiten's position were Ruth Bader Ginsburg and Neil Gorsuch."

    Thank god for president Trump being in a position to nominate Gorsuch.

    Trump is terrible is many ways but the Gorsuch appointment will be a boon to liberty for decades.

  • Mithrandir||

    Yeah Gorsuch is just phenomenal. I don't think I've heard him say anything from the bench that I have any major issues with.

  • DenverJ||

    Stupid people. I should be the only supreme justice; I'd fix this shit. Hell, I should be emperor of the world, hell the galaxy. I expect you all to vote for me.

  • Eddy||

    "Nice try, but we found some last-minute ballots from the planet Garissa.

  • DenverJ||

    Damn Democrats

  • Eddy||

    Just to pound the joke into the ground:

    "Garissa's population was eliminated by a series of antimatter warhead strikes which devastated the surface, wrecked the climate, polluted the biosphere and rendered the planet totally uninhabitable for at least 5,000 years."

    https://bit.ly/2zOWkKm

  • Agammamon||

    The reality is, if dual-sovereignty is overturned it won't be someone pleading to a state offense blocking a federal prosecution - it will be that the courts will determine that federal law has primacy and so that person will be pulled out of the state court system and straight in to the more punitive federal one.

    And that goes double for things that aren't state crimes but are federal ones. You can't plead guilty to misdemeanor pot possession in a state where pot possession is no longer a crime - so you go straight to federal court.

    There is no way (in the real world) the removal of dual-sovereignty wouldn't result in a greater centralization of police power into the federal government and to DC.

  • Eddy||

    That could certainly happen.

    Certainly, in some high-profile cases (i. e., cases where whoever prosecutes gets media attention), the feds will attempt a "race to the courthouse" to get the sole credit.

    But conversely, in some delicate cases, or where the difficulties of prosecution are great, the feds may simply say "I don't want to touch this, I'll leave it to the state and then when they pressure me to prosecute I'll just say it would be double jeopardy."

  • Agammamon||

    They already do the latter though. Removing double jeopardy wouldn't change that. It wouldn't *require* them to prosecute - only allow them to remove cases at will when they do.

  • Agammamon||

    Chaiten was keen to reassure the justices that the impact of enforcing the Double Jeopardy Clause as it was intended would be modest. Federal civil rights cases could still proceed even when based on conduct already punished by a state, he said, because the federal offenses involve additional elements, making them distinct crimes. Federal courts need not count foreign prosecutions of terrorists who kill Americans toward double jeopardy, he said, unless they recognize "the competent and concurrent jurisdiction of the first court." He also noted that 20 states have statutes that generally bar a second prosecution for a crime that has already been prosecuted by a "separate sovereign," while another 17 apply that rule to certain crimes, and that "seems to have worked out OK."

    This whole thing here is a bunch of bullshit.

    1. 'additional elements' - pretty much every federal crime is written slightly differently than the state crime. And its not hard to simply slip in a blanket modification that changes the federal law juuuuuuust enough to now be 'distinct'.

    2. Civil rights prosecutions and foreign courts - all they have to do is now refuse to recognize the competency of state and foreign courts and we're back where we started.

  • Juice||

    I had thought in this country that the people were the sovereign

    Evidence that he's on the court by an act of Divine Providence.

  • Deconstructed Potato||

    I couldn't care less about weed. It seems less a symbolic fight, and more of a distraction from much more fundamental battles for personal liberties.

    Gee, I can't wait for more government permission to do stuff!

  • TangoDelta||

    ... enunciated it more explicitly in 1852


    Really, would they be so keen to stand by the precursor of Dred Scott? Seems to me that McLean got it right in both cases in the dissent and I would think if the 14th Amendment overturns Scott then is should likewise overturn Moore.

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