As many observers of the legal drama surrounding President Trump have noted, under current Supreme Court precedent, a state can prosecute someone for a crime after the federal government has already done so — or vice versa. Recently, the Supreme Court heard oral argument in the case of Gamble v. United States, which raises the issue of whether to reverse that longstanding doctrine, known as the “separate sovereigns” exception to the Double Jeopardy Clause. (The Clause guarantees that no one shall “be twice put in jeopardy” “for the same offence,” which generally means that a person cannot be tried twice for the same crime.
In 2015, police pulled over Terance Gamble for a faulty headlight. After the police officer smelled marijuana and searched the car, he found a handgun. Both the state of Alabama and the federal government also charged Gamble with possession of a firearm as a felon, and he was convicted in state court.
Gamble then argued that the federal court should dismiss the charge against him under the Double Jeopardy Clause. The trial court rejected his argument, relying on the separate sovereigns doctrine, and the Eleventh Circuit affirmed.
In oral argument on December 6, Gamble’s attorney argued that the separate sovereigns exception to the Clause is inconsistent with the Clause’s text and original meaning. He pointed out that the Clause’s drafters intended the text to incorporate English practice, and there was no practice of inter-sovereign successive prosecutions in English history.
Justice Alito expressed concern about the ramifications Gamble’s argument would have for national security. The Justice posed a hypothetical in which terrorists kill American tourists in a foreign country and an inept prosecution yields an acquittal or light sentence. The Justice asked whether Gamble’s position would be that no prosecution could take place in the United States under the statute Congress enacted to permit prosecution of individuals who murder Americans abroad. Although Gamble’s attorney responded that the Court does not have to reach that question in this case, Justice Kavanaugh disagreed, stating that Gamble’s position would logically extend to Justice Alito’s hypothetical.
Justices also repeatedly expressed concerns about invalidating the separate sovereigns doctrine because such an invalidation would not be in keeping with the principle of stare decisis. Justice Kagan noted that the separate sovereigns rule is 170 years old and 30 Justices have voted in favor of it. The Justice characterized stare decisis as a “doctrine of humility” and expressed doubt that the Court would be comfortable “throwing over 170-year-old rules that 30 Justices have approved just because we think we can kind of do it better.” Justice Gorsuch expressed the same concern. Justice Gorsuch elicited laughter when he asked “…of all the errors this Court has made over the years…why this one? Why should we care about this one?” Justice Gorsuch noted that the Court did not overrule the 1944 case of Korematsu v. United States, (widely regarded as one of the worst rulings in Supreme Court history), until last year.
Eric Feigin, Assistant to the Solicitor General, argued on behalf of the Department of Justice in support of maintaining the separate sovereigns rule, and he followed up on the Justices’ concerns. Feigin relied on stare decisis in his opening statement, noting 170 years of precedent. He went on to argue that an overruling of the separate sovereigns doctrine would create adverse consequences for law enforcement, for legislatures and for courts, including a deterrence of cooperation between state and federal agencies or courts, the encouragement of aggressive prosecutions, races to the courthouse, and defendants’ trying to “play each sovereign off against the other where one sovereign will have the ability to unilaterally bargain away the other sovereign’s ability to enforce its interests.”
Feigen returned to the hypothetical Justice Alito had posed to his opponent and said it’s not just a hypothetical problem but “a real one.” Feigin noted that in 2003 the FARC (Revolutionary Armed Forces of Colombia) rebels in Colombia kidnapped American journalists and held them hostage for five years. The Colombian government eventually dropped charges against the rebels.
Kyle Hawkins, Texas Solicitor General, argued as an amici curiae, in support of maintaining the separate sovereigns doctrine. Hawkins said he represented a coalition of 36 states that are united in urging the Court not to overrule the doctrine. Hawkins said an overruling of the separate sovereigns doctrine would force courts across the country to determine how to apply double jeopardy analysis when charges related to the same set of acts or transactions are brought under different completely different statutory schemes.
This post was written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.