Lots of people facing federal criminal charges are surprised by some rules that are based on decisions from the United States Supreme Court. One of the dumbest rules that confounds most regular folks is what lawyers call the “dual sovereignty exception” to the Constitutional protection against double jeopardy. Even school kids know that part of the Fifth Amendment to our Constitution guarantees that no one shall “be twice put in jeopardy for the same offense.” However, many years ago the Supreme Court came up with the fiction that a State (like Georgia, or Alabama) is a separate “sovereign” or government from the very different “sovereign” that is the government of the United States itself. In other words, the feds are different from the states. The unfortunate corollary to this principle of separate sovereigns is that you can win a criminal case in federal court, and a state can bring the very same charge against you without violating the double jeopardy rule. First time I had this happen, I was livid, for we’d cheated the other side fair and square in the first State-court trial and it seemed so grossly unfair to let the feds have a second whack at my client.
So, the Supreme Court has a new case that was argued today that might be the vehicle through which they change this dumb old dual-sovereignty double jeopardy rule. The case is Terance Gamble v. United States. The case began in 2015, when Gamble was pulled over by police for having a faulty headlight. The cop smelled weed, searched Gamble’s car, and found two bags and a gun. The great State of Alabama charged Gamble with violating state drug laws and with being a previously convicted felon in possession of a firearm. Mr. G. got one year in prison. Then the feds picked up the exact same case, and brought the exact same charge of being a felon in possession of a firearm. Mr. G. got almost 4 additional years for the federal case, was understandably pissed, and appealed. In kind of a surprising move, the Supreme Court finally accepted the case for review.
In their filings, the feds say that the separate sovereigns doctrine should remain unchanged. They point out that the actual words in the double jeopardy clause bar successive prosecution and punishment for the same “offense”, not for the same conduct. When the Constitution uses the term “offence,” goes the feds’ argument, the double jeopardy clause is referring to the violation of a law. Therefore, focusing on how the same conduct can violate two different sovereigns’ laws, the feds claim this means that it therefore constitutes two different offenses, which can then be punished and prosecuted separately. The feds blame it on James Madison and the other brilliant individuals who put our Constitution together, arguing that if the Framers had wanted the double jeopardy clause to apply more broadly, they would have used the term “conduct” or “acts” rather than “offence.”
Very able counsel for Mr. G. look at the words in the Constitution very differently. For starters, they point out how nothing in the text says anything at all about any exception. They essentially are saying “what confusion is there when the Framers said ‘thou shalt not go after a guy twice for the same offense’?” Mr. G.’s team stress that the text of the clause bars prosecution of the “same offence,” without suggesting that two prosecutions for the same offense would be acceptable as long as they are prosecuted by two separate sovereigns. Instead, Mr G.’s lawyers noted that Congress previously considered but rejected an exception that would have allowed the federal government to prosecute a defendant even after he’d been convicted for the same offense under state law.
Mr. Gamble also raises some additional arguments, pointing out that the separate sovereigns doctrine is inconsistent with the purpose of the double jeopardy clause. This dumb rule “hardly serves the deeply rooted principles of finality and fairness the Clause was designed to protect,” especially when it would still require two trials and could potentially lead to double punishments.
Another argument by Mr. G. points out that when the Supreme Court adopted this dual sovereignty rule, the Court apparently believed that duplicative prosecutions by state and federal governments would be “exceedingly rare.” The dual sovereignty rule was created on those “old days” when federal criminal law was very limited. However, as anyone foolish enough to read this blog knows, federal criminal law has expanded significantly during the past half-century. As Mr. G. observes, that expansion is “far beyond what the judicial framers of the separate-sovereigns exception could have possibly imagined.” Based on that half-decade expansion, “nearly every crime can be charged both in state court and in federal court.”
Fairness should be the bedrock principle for any decent criminal justice system. Letting a prosecutor take a second bite at the apple for the exact same crime is the opposite of fairness. As I mentioned when taking about the first time I encountered this rule, if “we cheated ’em fair and square the first time”, in fairness the other side should not get the chance for a second whack at the Defendant.