US Supreme Court upholds dual sovereignty doctrine

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Katie Aguilera

The United States Supreme Court has upheld the dual sovereignty doctrine in a seven to two vote in the case Gamble v. United States. This doctrine holds that the States’ governments and the Federal government are separate sovereign entities and can therefore prosecute a defendant for the same offense without violating the Fifth Amendment’s double jeopardy clause.

See Supreme Court to weigh overturning separate-sovereigns doctrine in Gamble v. United States for more on arguments for and against Gamble v. United States and the dual sovereignty doctrine.

Justice Samuel Alito delivered the Court’s opinion. Justice Clarence Thomas filed a concurring opinion and Justices Ruth Bader Ginsburg and Neil Gorsuch filed dissenting opinions.

The decision argues that dual sovereignty is not an exception to protection from double jeopardy because the language of the Fifth Amendment “protects individuals from being twice put in jeopardy for the same offence, not for the same conducts or actions.” Alito writes, “as originally understood, then, an ‘offence’ is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two offences.”

The Court’s opinion goes on to discuss the concern that overturning dual sovereignty would result in the United States no longer having the legal authority to prosecute people who have been prosecuted for the same offence in other sovereign countries.

Citing late-colonial American objection to the so-called Murderers’ Act of 1751 Alito argues that, “on Gamble’s reading, the same Founders who quite literally revolted against the use of acquittals abroad to bar criminal prosecutions here would soon give us an Amendment allowing foreign acquittals to spare domestic criminals. We doubt it.”

“This principle comes into still sharper relief when we consider a prosecution in this country for crimes committed abroad. If, as Gamble suggests, only one sovereign may prosecute for a single act, no American court–state or federal–could prosecute conduct already tried in a foreign court.”

SCOTUS opinion in Gamble v. United States

The decision also argues that Gamble’s arguments are not compelling enough to overturn 170 years of precedents set by previous Supreme Court decisions. “All told, this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns’ laws–much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years.”

In his concurring opinion, Justice Thomas admits to initial skepticism of the dual sovereignty doctrine, but was swayed by the historical record. He makes note that “we are not entitled to interpret the Constitution to align it with our personal sensibilities about ‘unjust’ prosecutions.” He adds in parenthesis, “While the growing number of criminal offenses in our statute books may be cause for concern, no one should expect (or want) judges to revise the Constitution to address every social problem they happen to perceive.”

The majority of his opinion relates to the Court’s reliance on the doctrine of stare decisis, in which the Court typically upholds previous Supreme Court rulings as legal precedent. He writes “in my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions–meaning decisions outside the realm of permissible interpretation–over the text of the Constitution and other duly enacted federal law.”

In her dissenting opinion, Justice Ginsburg cites previous Supreme Court decisions that upheld dual sovereignty and writes, “I would not cling to those ill-advised decisions.”

She argues against the concern over crimes committed and prosecuted abroad. “Gamble was convicted in both Alabama and the United States, jurisdictions that are not foreign to each other.” She goes on to explain “in the system established by the Federal Constitution…’ultimate sovereignty’ resides in the governed…Insofar as a crime offends the ‘peace and dignity’ of a sovereign,…that ‘sovereign’ is the people, the ‘original fountain of all legitimate authority…States may be separate, but their populations are part of the people composing the United States.”

Justice Ginsburg also addresses the reliance on stare decisis, writing it is not an “inexorable command….Our adherence to precedent is weakest in cases ‘concerning procedural rules that implicate fundamental constitutional protections.'”

She goes on to write “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 century, however, federal criminal law has been extended pervasively into areas once left to the States.”

“This situation might be less troublesome if successive prosecutions occurred only in ‘instances of peculiar enormity, or where the public safety demanded extraordinary rigor’…The run-of-the-mill felon in-possession charges Gamble encountered indicate that, in practice, successive prosecutions are not limited to exceptional circumstances.”

Justice Ginsburg, dissenting opinion, Gamble v. United States.

Ginsburg concludes her dissent by pointing out the dual sovereign doctrine has been criticized by “members of the bench, bar, and academy.” She writes “different parts of the ‘WHOLE’ United States should not be positioned to prosecute a defendant a second time for the same offense. I would reverse Gamble’s federal conviction.”

Justice Gorsuch argues in his dissent, “‘separate sovereigns exception’ to the bar against double jeopardy finds no meaningful support in the text of the Constitution, it’s original public meaning, structure, or history. Instead, the Constitution promises all Americans that they will never suffer double jeopardy. I would enforce that guarantee.”

He also disagrees with the idea that an offence against the laws of separate sovereigns is two offenses. He cites Blockburger v. United States to argue “if two laws demand proof of the same facts to secure a conviction, they constitute a single offense under our Constitution and a second trial is forbidden.”

“Tellingly, no one before us doubts that if either the federal government or Alabama had prosecuted Mr. Gamble twice on these facts and in this manner, it surely would have violated the Constitution.”

Justice Gorsuch, dissenting opinion, Gamble v. United States

He argues that assigning different aspects of power to the federal and state governments is meant to limit governmental power rather than multiply it. The dual sovereign doctrine goes against this premise as it allows the federal and state governments to do together what neither can do alone, that is, prosecute someone for the same offense.

Gorsuch also addresses stare decisis, arguing it should not be used to ignore precedents that can’t be supported by the Constitution. He offers examples of historic cases previously used as precedents that have been overturned, including Korematsu v. United States.

He writes, “with the text, principles of federalism, and history now arrayed against it, the government is left to suggest that we should retain the separate sovereigns exception under the doctrine of stare decisis. But if that’s the real basis for today’s result, let’s at least acknowledge this: By all appearances, the Constitution, as originally adopted and understood did not allow successive state and federal prosecutions for the same offense, yet the government wants this Court to tolerate the practice anyway.”

Like Ginsburg, Gorsuch also expresses concern over the increasing number of Federal crimes on the books and the resulting effect on the use of the dual sovereign doctrine. “In the era when the separate sovereigns exception first emerged, the federal criminal code was new, thin, modest and restrained. Today, it can make none of those boasts…If long ago the Court could have thought ‘the benignant spirit’ of prosecutors rather than unwavering enforcement of the Constitution sufficient protection against the threat of double prosecutions, it’s unclear how we still might.”

He concludes, “the separate sovereigns exception was wrong when it was invented, and it remains wrong today.”

Unfortunately, as Justice Ginsburg pointed out, this doctrine isn’t relegated to use in unusual and extreme cases. And it isn’t difficult to imagine it will become more and more common to see cases prosecuted under this doctrine as the number of crimes prosecutable under Federal law grows. It can happen to people who were acquitted in their original trial. It can happen years after the original trial and time served. It can happen when original charges are dropped.

The end result is more loss of rights, longer prison sentences, a growing prison population, and traumatic disruption, even destruction, of the lives of those charged and their families.

“When 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.”

Justice Gorsuch, dissenting opinion, Gamble v. United States.

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Supreme Court to weigh overturning separate-sovereigns doctrine in Gamble v. United States

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Katie Aguilera

Tomorrow, December 6, 2018, the Supreme Court of the United States will hear arguments in a case that has the potential to overturn the long-standing legal doctrine of separate-sovereigns, or dual sovereignty.  This doctrine holds that the States’ governments and the Federal government are separate sovereign entities and can therefore prosecute a defendant for the same offense without violating the fifth amendment’s double jeopardy clause.  The case the court will hear tomorrow is Gamble v. United States.

Terance Martez Gamble, according to court documents, was convicted of second-degree robbery on September 4, 2008, in Alabama state court.  Seven years later, he was stopped while driving by a Mobile Police Department officer because one of his head lights was out.  The officer smelled marijuana and searched Gamble’s vehicle, finding marijuana, a digital scale, and a handgun.

On April 28, 2016, Gamble was indicted by a federal grand jury for possessing a firearm by a felon.  On May 27, 2016, Gamble was convicted in Alabama state court of being a prohibited person in possession of a firearm.  Both the federal indictment and the Alabama state conviction were for the same incident.

Gamble “moved to dismiss his federal indictment on double jeopardy grounds. The district court denied the motion, concluding that petitioner’s argument was foreclosed by binding precedent in this Court and the Eleventh Circuit holding that the federal government is a separate sovereign from an individual state and that the Double Jeopardy Clause does not prohibit separate prosecutions by separate sovereigns.”

Gamble pleaded guilty to the federal charge as part of a plea agreement, but he reserved the right to appeal the denial of his motion to dismiss on the grounds of double jeopardy.  He was sentenced for the federal charge to 46 months in prison that would run concurrently with the sentence he received from Alabama state.

This is not the first time the Supreme Court has heard arguments in favor of overturning the separate-sovereigns doctrine.  In fact, according to the government’s brief in opposition, the Supreme Court has upheld the doctrine 20 times in the years between 1852 and 1959.

Many organizations have filed briefs in support of Gamble or in support of the United States in this case.   These range from the ACLU, military legal divisions, criminal defense lawyers, and Utah Senator Orrin Hatch in support of Gamble, to the National Indigenous Women’s Resource Center, National Congress of American Indians, National Association of Counties, National League of Cities, National District Attorneys Association, National Sheriff’s Association and more in support of the government.  All the documents can be found here.

The National Indigenous Women’s Resource Center and National Congress of American Indians argue in their brief that “overturning the Court’s long-standing precedent regarding the dual sovereign doctrine, which has allowed both tribal and the federal governments to prosecute for violations of their respective criminal laws, would have significant ramifications in Indian country. Not only would it undermine core principles of local control for criminal justice, it would preclude the effective prosecution of those who commit serious violent crimes against Native women and children.”

According to their brief, the Indian Civil Rights Act prohibits Tribal Courts from imposing sentences longer than a year for any criminal offense, with some exceptions where certain requirements are met and the sentence can be lengthened to three years.  This means there is often a reliance on the federal government to prosecute defendants in order for longer sentences to be imposed on them, providing greater protection for their victims.

If the Supreme Court rules in favor of Gamble and the separate-sovereigns doctrine is overturned, Tribal Nations will be required to “choose whether to prosecute a case before conclusion of the investigation that determines whether the U.S. Attorney will prosecute.”  If the Tribal courts decide to prosecute, the federal government will then be unable to charge the defendant for the same crime.  If they opt not to prosecute in hopes the federal government will, it’s possible the defendant will never face charges if the federal investigation doesn’t result in an indictment.

The brief argues “this Court should preserve the ‘separate sovereigns’ doctrine as applied to prosecution by both tribal governments and the federal government, either by rejecting Petitioner’s [Gamble] arguments in their entirety, or by making it clear that this Court’s decision in this case should not be read as addressing the unique considerations presented in the context of dual federal and tribal prosecution.”

According to this November 29, 2018 Argument Preview by Amy L. Howe, a ruling in favor of Gamble “could have widespread impact that could extend to prosecutions by Robert Mueller, the special counsel appointed to investigate Russian efforts to influence the 2016 election.”

The article goes on to state that the government warns of a variety of problems that would arise if the Supreme Court overturns the separate-sovereigns doctrine.  Howe writes, “under Gamble’s interpretation, the U.S. or a state government would not be able to prosecute a foreign terrorist if a foreign government had also tried him.”  Additionally, if the doctrine is overturned, it could “lead to a flood of challenges by inmates convicted by two different sovereigns who want to overturn the second conviction, even if it became final long ago.”

Senator Orrin Hatch (R-UT) argues in support of overturning the separate-sovereigns doctrine in a lengthy brief. In this brief it states “when this Court last reaffirmed the ‘dual sovereignty’ exception to the Fifth Amendment’s guarantee against successive prosecutions for the same crime, it did so to preserve the balance of power in our federalist system.  As a matter of both constitutional theory and historical practice, the states bore primary responsibility for defining and prosecuting general crime, with federal criminal law focused on relatively narrow and specific areas of federal interest.

But the balance between state and federal power to define and punish crime has shifted massively since the vitality of the dual sovereignty doctrine was last before this Court.  The federalization of criminal law over the intervening decades has given federal prosecutors the ability to bring coordinate federal charges for a wide array of conduct…In this hyperfederalized context, the federalist underpinnings of this Court’s prior dual-sovereignty decisions no longer reflect the reality of federal-state relations, and may well undermine, rather than support, an appropriate division of power.”

The ACLU makes a similar argument, noting that according to The Court and Overcriminalization by Michael Pierce, the United States criminal code contains 27,000 pages of federal criminal laws.  This was not the case when the Supreme Court upheld the separate-sovereigns doctrine in the past.  The increase in federal criminal laws greatly increases the risk of what was previously considered a rare occurrence–when  charges are brought against a defendant by a state and the federal government for the same offense.  This, the ACLU argues, is one of numerous important reason to do away with the separate-sovereigns doctrine.

The U.S. Navy-Marine Corps Appellate Defense Division, U.S. Coast Guard Office of Member Advocacy and Legal Assistance—Appellate Defense, U.S. Air Force Appellate Defense Division, and the U.S. Army Defense Appellate Division filed a brief of Amici curiae in support of overturning the separate-sovereigns doctrine.  In it, they state:

“Amici ask this Court to overrule the separate-sovereigns exception so those who serve our country receive the proper Double Jeopardy protections of the Constitution, our basic charter of rights which they took an oath to defend with their lives.”

They go on to argue “…the separate-sovereigns exception allows the military to overrule the verdict of a state jury, with its jurors selected from a representative cross-section of the community, by meeting a lesser standard:  currently a two-thirds majority vote for conviction by a panel of military members, each senior to the defendant and picked by the defendant’s commander.”

The timing of this case is notable considering the potential effects to Robert Mueller’s investigation.  It has been speculated that people convicted of federal crimes as a result of Mueller’s investigation could receive pardons from President Trump and without the separate-sovereign doctrine, the States wouldn’t be able to bring charges against those people.  It has even been suggested that the push to get Judge Brett Kavanaugh confirmed and seated on the Supreme Court was to ensure a majority vote in favor of overturning the separate-sovereigns doctrine for that very reason.

However, this October 4, 2018 Slate article by Teri Kanefield and Jed Shugarman explains how Gamble v. United States is unlikely to have much, if any, effect on Mueller’s investigation.  They write, “in theory, a Trump associate could plead guilty to a federal crime, receive a pardon, and Gamble could protect him from a state prosecution.  In reality, special counsel Robert Mueller seems to have already strategized around this problem.

All such hypotheticals aside, though, double jeopardy is a real problem affecting the rights of ordinary citizens.”

Ordinary citizens such as Terance Gamble, Benjamin Cunha, and countless others, who have faced charges from both state and federal prosecutors for the same offense.  These convictions result in longer prison sentences and contribute to the mass incarceration crisis this nation faces.