• Michael Stechschulte

Loophole to the Double Jeopardy Clause in Jeopardy


The Fifth Amendment of the United States Constitution provides that “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . .” As the Supreme Court has emphasized, “[A] verdict of acquittal [is] final, and [cannot] be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the constitution.” However, under what has been termed the “separate-sovereigns” exception, state and federal prosecutors can bring separate charges for the same crime.

In United States v. Lanza, a defendant convicted of bootlegging by both the state of Washington and the federal government argued that his convictions violated the Double Jeopardy Clause. However, the Supreme Court held that Lanza’s convictions were lawful because they were imposed by “two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory.” Writing for the majority, Chief Justice William Taft emphasized that charging defendants in both state and federal courts for the same act is consistent with our constitutional framework because “Each government, in determining what shall be an offense against its peace and dignity, is exercising its own sovereignty, not that of the other.”

Nearly a century later, the Supreme Court appears as though it may poised to overturn Lanza and its progeny. In the months of late, countless legal commentators, practitioners and scholars have submitted amicus briefs to the Supreme Court in anticipation of the upcoming case of Gamble v. United States, where the Court is widely expected to reexamine the merits of the separate-sovereigns exception. In 2015, Terrance Gamble was convicted in Alabama state court for illegal possession of a firearm. For that conviction, Gamble was incarcerated for one year. Shortly thereafter, federal prosecutors also charged Gamble with illegal possession of a firearm. Gamble is currently incarcerated for that federal conviction, but has appealed his case, all the way up to the Supreme Court, arguing that the separate-sovereigns exception is unconstitutional.

Gamble comes on the heels the Supreme Court’s 6-2 decision in Puerto Rico v. Sanchez Valle, which held that the United States and Puerto Rico are a single sovereign for double jeopardy purposes. However, in a concurring opinion joined by Justice Clarence Thomas, Justice Ruth Bader Ginsburg invited a “fresh examination” of the separate-sovereigns exception. And it appears as though the Supreme Court has accepted that invitation in granting certiorari in Gamble.

Gamble’s petition rests on two grounds: (1) that the separate sovereigns doctrine “ is inconsistent with the plain text, original meaning, and purpose of the constitution,” and (2) that the separate sovereigns doctrine’s “doctrinal and factual underpinnings have eroded.” Similarly, in an amicus brief, the Cato Institute and the Constitutional Accountability Center argue that the separate-sovereigns exception is not supported by the text of the Fifth Amendment, prohibited by the Double Jeopardy Clause historically, and at odds with our constitutional structure. Perhaps unsurprisingly, the Department of Justice under Attorney General Jeff Sessions has filed its opposition.

The Justice Department argues that the separate-sovereigns exception is grounded in sound precedent, consistent with our constitutional structure of federalism and the language of the Fifth Amendment itself. The United States Court of Appeals for the Eleventh Circuit upheld Gamble’s conviction on the grounds that the United States is a separate sovereign from the state of Alabama. As the Eleventh Circuit held, “unless and until the Supreme Court overturns Ab- bate, [Gamble’s] double jeopardy claim must fail based on the dual sovereignty doctrine.”

In a report issued this past August, the Congressional Research Service suggested that Gamble may have significant ramifications with respect to the presidential pardon power. “A win for Gamble could also indirectly strengthen the President’s pardon power,” wrote the congressional think-tank. “[B]y precluding a state from prosecuting an already-pardoned defendant who has gone to trial on an overlapping offense.”

Such an outcome could trigger political earthquakes in a number of high-profile prosecutions, including those involving Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election. Two of President Trump’s associates, Paul Manafort and Michael Cohen, have recently been convicted of federal crimes, but President Trump has the power to pardon them. Nonetheless, the Office of the New York Attorney General is considering charging Manafort and Cohen under state law, and state convictions are currently beyond presidential pardon power. But if the Supreme Court were to abolish the separate-sovereign exception, Manafort and Cohen would be immunized against any related charges levied by the New York Attorney General.

Politics aside, a Supreme Court holding abolishing the separate-sovereigns exception could affect thousands, if not millions, of defendants convicted in accordance with the exception. Such an outcome would depend on whether the Supreme Court made its ruling retroactive. Regardless, the Supreme Court is slated to hear oral arguments in Gamble on December 5th. And the Court’s holding, whatever that may be, will surely remain a bone of contention for years to come.

#doublejeopardy #FifthAmendment

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