This week, in Gamble v United States, the Supreme Court reaffirmed the “longstanding interpretation” of the double jeopardy clause that prosecution of the same crime by separate sovereigns does not violate the Fifth Amendment. The Court was split 7-2.
The cops pulled over Terance Gamble for a faulty headlight. A police officer smelled marijuana and searched Gamble’s car, where he found two bags of marijuana, a digital scale and a handgun.
Gamble pleaded guilty to being a felon in possession of a firearm in Alabama state court, and then federal prosecutors indicted him for the same instance of possession in federal court under 18 U.S.C. §922(g)(1). Gamble moved to dismiss on one ground: his federal prosecution for the gun charge violated the double jeopardy clause. The trial court rejected his claim, explaining that it had to follow the separate sovereigns doctrine unless and until the Supreme Court overruled it. The Eleventh Circuit affirmed.
The Opinion (and the notable dissents)
Justice Samuel Alito wrote the majority opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh. The basic conclusion in the Alito opinion is that, “where there are two sovereigns . . . there are two laws,” and therefore two offenses. Accordingly, prosecution by both state and federal authorities for the same crime but under different statutes is not a double jeopardy violation. Gamble’s primary argument was that the Supreme Court’s line of cases on the “separate sovereigns” doctrine conflicts with the understanding of the Founding Fathers who ratified the double jeopardy clause. But Alito concluded that principles of stare decisis could not be undone by mere “ambiguous historical evidence.”
Justices Ruth Bader Ginsburg and Neil Gorsuch each filed their own notable dissents. Justice Ginsburg’s dissent included some pointed criticism of the federal code: “The expansion of federal criminal law has exacerbated the problems created by the separate-sovereigns doctrine. Ill effects of the doctrine might once have been tempered by the limited overlap between federal and state criminal law. In the last half century, however, federal criminal law has been extended pervasively into areas once left to the States.” Ginsburg further noted that the “separate sovereigns” doctrine “has been subject to relentless criticism by members of the bench, bar, and academy,” and thus she would have ruled in Gamble’s favor.
Gorsuch’s dissent echoed many of Ginsburg’s sentiments, but he took specific aim at the majority’s stare decisis reasoning, stating: “stare decisis isn’t supposed to be the art of being methodically ignorant of what everyone knows.” In his view, “blind obedience to stare decisis would leave this Court still abiding grotesque errors,” such as the Supreme Court’s 1857 decision holding that blacks were not citizens and could not bring a lawsuit in U.S. courts or its 1944 decision upholding the internment of Japanese-Americans during World War II. Gorsuch’s dissent also concludes with a heated criticism of governmental power: “governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is the poor and the weak, and the unpopular and controversial who suffer first—and there is nothing to stop them from being the last.”
- Your client can still be charged and tried in both state and federal court for the same underlying conduct, and it does not violate double jeopardy.