This week, the Supreme Court hears argument in Gamble v. United States, a case asking whether the Court should overrule the “separate sovereigns” exception to the double jeopardy clause. Gamble has significant practical implications, but also raises interesting issues of constitutional interpretation, historical practice, and adherence to precedent.
Following a 2015 traffic stop in which police found a gun, the state of Alabama prosecuted Mr. Gamble for being a felon in possession of a firearm. He pleaded guilty and was sentenced to a year in prison. But the federal government then pursued its own case against him for the same crime (being a felon in possession of a firearm), and based on the same conduct (possessing the firearm found during the traffic stop).
While the Fifth Amendment’s Double Jeopardy Clause prohibits any person from being tried twice for the same offense, the Supreme Court has long recognized an exception to that principle. Prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are considered separate sovereigns. See Abbate v. United States, 359 U.S. 187, 195 (1959).
This “separate sovereigns” exception (also called the “dual sovereignty” exception) would seem to countenance both prosecutions of Mr. Gamble. That’s what the Southern District of Alabama and the Eleventh Circuit both held below. As the circuit court put it, “unless and until the Supreme Court overturns Abbate, [this type of] double jeopardy claim must fail based on the dual sovereignty doctrine.” 694 F. App’x at 750-51.
But Mr. Gamble had an opening to argue for that very overruling. Two terms ago, in Puerto Rico v Sanchez Valle, the Supreme Court held that Puerto Rico was not a separate sovereign from the United States because it derived its authority from Congress. So, Puerto Rico and the United States could not both prosecute a person for the same conduct under equivalent criminal laws.
Notable here, however, was Justice Ginsburg’s concurrence, joined by Justice Thomas, in which she wrote to “flag a larger question that bears fresh examination in an appropriate case”—that is, whether the Court’s separate sovereigns doctrine served the Double Jeopardy Clause’s goal “to shield individuals from the harassment of multiple prosecutions for the same misconduct.” 136 S. Ct. 1877. The concurrence suggested it did not, and that the issue warranted the Court’s attention.
The Court decided Sanchez-Valle on June 9, 2016. About a week later, Mr. Gamble moved to dismiss the indictment, the motion predicated on Justice Ginsburg’s concurrence and call to revisit the separate sovereigns doctrine. Two years later, the Supreme Court granted granted certiorari.
SCOTUSblog has an excellent argument preview here: http://www.scotusblog.com/2018/11/argument-preview-justices-to-reconsider-potentially-far-reaching-double-jeopardy-exception/
For a fascinating historical perspective on the question, check out the amicus brief filed by law professors contending that dual sovereignty is a historical accident, and not part of the constitutional design.
- Be on the lookout for any dual-sovereignty issues in current cases, and preserve that challenge by filing a motion to dismiss the indictment.
- Remember to pay attention to concurrences and dissents (including dissents from the denial of certiorari). Gamble finds its roots in Justice Ginsburg’s Sanchez-Valle concurrence. Shortly after that concurrence, Mr. Gamble moved to preserve the issue, and two years later the Court granted certiorari on the question.
- Stare decisis is not always decisive. Even long-standing legal doctrines may be reconsidered, and Mr. Gamble argued persuasively in his petition for certiorari that both the doctrinal and factual premises supporting the separate sovereigns exception have eroded significantly since its adoption. (See Petition at 7-17.)