US Supreme Court upholds dual sovereignty doctrine


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.


How Sentence Enhancements Increase Plea Deals And Reduce Transparency in America’s Justice System

Author’s Note:  this article was originally published on over a year ago and may contain outdated information.  I am posting it here now because it is no longer available on that website (more about that here).  I will be posting a couple additional articles that I wrote for Newsbud that are also no longer available there.

Katie Aguilera

Most Americans today are aware of mandatory-minimum sentences in federal and state criminal sentencing guidelines and the often excessive punishments they place on offenders. What is perhaps less well known is the existence of sentence enhancements in the US judicial system. These are defined as “facts and circumstances that, if present in your case, allow the sentencing judge to increase or ‘enhance’ the sentence that normally applies to the crime.”

This means a sentence determined by sentencing guidelines or mandatory-minimum requirements can be increased, or enhanced, for reasons such as the use of a weapon while committing the crime, repeat offenses, or the age of the victim. The increase in sentence length is then decided upon solely by the judge in the case.

When offenders find themselves facing such large sentences, and their defense attorney is, from the start, likely to be far behind the prosecutors in knowing what the facts of the case are, it becomes all too easy for prosecutors to push for and achieve a plea deal. A deal that allows for a much shorter sentence is a powerful enticement to encourage a defendant to admit guilt, regardless of whether genuinely guilty or not.

Consider this from a 2015 Texas A&M Law Review report: “our criminal justice system…suffers from practices related to sentencing enhancements and the resulting wave of wrongful convictions by guilty plea.”

An astounding 97% of federal criminal cases are resolved in plea bargains, as of 2013, according to this article by Jed S. Rakoff, published in November 2014. He adds that this is mirrored in state felony cases, with most states showing an average of around 95% of cases ending with plea bargains. Rakoff writes, “in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little to say, and the judge even less.”

The Sixth Amendment guarantees Americans the right to a public trial with an impartial jury. But, as Rakoff writes, “our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight.” No jury of peers to hear both sides of the story and weigh the arguments and evidence, or to decide on an appropriate sentence in the case of a guilty verdict.

One enhancement that carries significant weight and is quietly being used is the terrorism enhancement. This enhancement elevates a defendant’s criminal record to the highest level, therefore allowing a large increase in the recommended sentencing range. According to Shane Harris in this July 13, 2007 article, “the application of the terrorism enhancement has largely been overlooked by the media, legal scholars, Congress, and terrorism analysts.”

Harris writes in this article published the same day, “just figuring out how many times the government had sought the enhancement proved impossible–the U.S. Attorneys Office doesn’t track that figure. But I was able to determine that judges have applied the enhancement at least 57 times in the past eight years. I studied more than half those cases–35–and learned that prosecutors sought the enhancement more often against domestic defendants, as opposed to members of international terrorist groups.”

He adds that this enhancement most commonly targets offenders who weren’t religiously motivated and often “consciously avoided human casualties” in their attacks; that most were motivated by “political outrage, and specifically targeted government facilities.” His article highlights the case of Daniel McGowan who was arrested and charged on counts of arson and conspiracy in Oregon after starting a fire at a lumber mill in protest of logging operations. A terrorism enhancement was added in his case, and facing a life sentence, McGowan accepted a non-cooperation plea agreement and was sentenced to seven years in prison.

In fact, Harris points out, the terrorism enhancement can be applied simply because the judge in a case is convinced by the government that “the crime in question was aimed at the government and that it ‘involved, or was intended to promote’ a specific act of terrorism—even one that was never carried out.”

Consider the case of Ahmed Abassi, a student from Tunisia who, upon arriving in the US, was immediately caught up in an ongoing sting operation when he moved into an apartment wired with recording devices, hosted by an FBI undercover agent. Abassi was not one to hold back when talking about his dislike for the US. He was caught on tape discussing “the principle that America should be wiped off the face of the earth” and suggesting “putting bacteria in the air or water supply.”

However, when pushed to action, Abassi refused repeatedly. As Wendy Gillis points out in this March 12, 2015 article, the US federal prosecutor in the case, Michael Ferrera wrote in a court submission, “to be clear, there is no dispute that Abassi repeatedly and emphatically refused to participate in terrorist and violent plots.”

Abassi was arrested in the sting operation, and faced a terrorism enhancement in his case. He spent months in jail, and his attorney, US federal defender Sabrina Shroff said “it was apparent to her that Abassi had not provided the evidence the FBI needed to make its case, that he had not stepped over the line into active participation…Prosecutors told Shroff they would drop the terrorism enhancements if Abassi agreed to plead guilty to the charges that included putting false information on an application for a green card…”

According to Gillis, Abassi “plead guilty to two minor immigration offenses and was deported to Tunisia last fall.” Even though the terrorism enhancement was dropped, Abassi states, “I am still, in the eyes of the world, a terrorist.”

Plea deals are often sought to alleviate pressure on an already over-booked judicial system by keeping cases out of court, or to protect sources such as confidential informants, undercover officers, and cooperative witnesses. But the use of sentence enhancements in cases such as McGowan’s and Abassi’s raises the possibility of prosecution that is the result of a particular agenda. One possibility is that plea deals might be sought in conspiracy cases in order to put pressure on the other defendants allegedly involved in the crime. Another agenda might be making the case for increased measures to prevent acts of domestic terrorism. If the number of defendants charged with terrorism increase, raising fear within the American public, justification can be made for even greater loss of freedoms.

Achieving a plea deal to keep a case out of trial also allows for suppression of the evidence that would enter the public domain during a trial. Plea deals are negotiated out of the public’s view, with no scrutiny of evidence used against the defendant. This can allow questionable investigations, illegal evidence gathering, and an unknown number of innocent people being imprisoned without trial. Ultimately, a plea deal is an assured conviction as it eliminates the risk of a jury finding a reasonable doubt as to the defendant’s guilt.

This fact certainly benefits the private prison industry since convictions usually come with a prison sentence. According to Nicole Goodkind in this article published August 6, 2013, “private prisons bring in about $3 billion in revenue annually.” Even though sentences are generally shortened by plea deals, the rising number of convictions due to these deals over the past decades still ensures a viable supply of prisoners to fill private prisons.

The value of this growing market isn’t lost on the prison industrial complex, and companies invested in this industry have taken steps to ensure it continues to grow. Two of the largest private prison owners, Corrections Corporation of America and GEO, have become influential lobbyists, spending large sums of money to affect policy that benefits the growing business of incarcerating people. Michael Cohen wrote in Washington Post on April 28, 2015, that Corrections Corporation of America stated in it’s 2014 annual report:

The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction of parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.”

As long as the federal government and large corporations continue to benefit from mandatory minimum sentencing and sentence enhancements, it seems unlikely that such policies will be changed. More laws will undoubtedly arise, creating even more crime, and America will continue to house the second largest prison population of countries with the most prisoners per 100,000 inhabitants.


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