Tuesday, June 18th, 2019

Supreme Court declines to overturn the dual sovereignty doctrine

In Gamble v. United States, No. 17-646, decided on June 17, 2019, the Supreme Court declined to overturn its “dual-sovereignty” doctrine — in the face of a Double Jeopardy challenge — in a 7-2 decision written by Justice Alito. Gamble v. United States, No. 17-646, 2019 WL 2493923 (June 17, 2019).

Terance Gamble was convicted in Alabama under the state’s felon-in-possession-of-a-firearm statute, after local police found a gun in his car during a traffic stop. He was sentenced to 1 year in prison (10 years’ imprisonment with all but 1 year suspended). He then was subjected to a second prosecution for the same conduct “by the United States under its own felon-in-possession law. ” Op. at 1. After Gamble’s motion to dismiss on double jeopardy grounds was denied, he pleaded guilty to the federal offense and was sentenced to 4 years in federal prison. The Eleventh Circuit affirmed citing the dual sovereignty doctrine.

The Supreme Court “granted certiorari to determine whether to overturn that doctrine.” Op. at 3. “In addressing that question,” the Court stated, “we follow the parties’ lead and assume, without deciding, that the state and federal offenses at issue here satisfy the other criteria for being the ‘same offence’” under Blockburger v. United States, 284 U.S. 299 (1932) (defining “offence” for double jeopardy purposes by statutory elements, not by the act or unit of criminal conduct). See Op. at 3 n.1.

The Double Jeopardy Clause of the Fifth Amendment provides that no person may be “twice put in jeopardy” “for the same offence.” But “[u]nder th[e] ‘dual-sovereignty’ doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.” Op. at 1. So the issue, the majority states, is “what does the Clause mean by an ‘offense’?” Id. at 1.

The majority, in upholding the dual-sovereignty doctrine, reasoned that the Fifth Amendment prohibits double jeopardy not for the same act but for the “same offence,” which it defined as a violation of a sovereign’s law. Therefore, because the United States and each state are separate sovereigns, successive state and federal prosecutions do not place a defendant in “jeopardy … for the same offense.” Op. at 1, 3-4 (internal quotation marks omitted). So, according to the majority, “where there are two sovereigns, there are two laws and two ‘offences.’” Op. at 4.

The majority rejected Gamble’s historical argument “that the dual-sovereignty doctrine departs from the founding-era understanding of the right enshrined by the Double Jeopardy Clause.” Op. at 2, 11-28. It also stated that “the doctrine of stare decisis is another obstacle” for Gamble, concluding that he had not made a sufficient historical showing to settle “the historical question with enough force to meet Gamble’s particular burden under stare decisis.” Op. at 2, 20.

In a separately written concurrence, Justice Thomas agreed that “the historical record does not bear out my initial skepticism of the dual-sovereignty doctrine.” See Concurrence, Thomas, J., at 1 (citation omitted). He wrote separately, however, to address the proper role of the doctrine of stare decisis, explaining that, in his 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” judicial decisions “—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law. It is always ‘tempting for judges to confuse our own preferences with the requirements of the law, and the Court’s stare decisis doctrine exacerbates that temptation by giving the veneer of respectability to our continued application of demonstrably incorrect precedents.’” Id. at 2 (citation and internal quotation marks omitted).

Justices Ginsburg and Gorsuch filed separate dissents.

Justice Ginsburg pointed out that the dual-sovereignty doctrine dates to three cases decided in 1922 and 1959: United States v. Lanza, 260 U.S. 377(1922); Abbate v. United States, 359 U.S. 187 (1959); and Bartkus v. Illinois, 359 U.S. 121. So the case “does not call for an inquiry into whether and when an 18th-century English court would have credited a foreign court’s judgment in a criminal case.” Gamble was convicted in both Alabama and the United States, “jurisdictions that are not foreign to each other. English court decisions regarding the respect due to a foreign nation’s judgment are therefore inapposite.” See Dissent, Ginsburg, J., at 2. Justice Ginsburg also discussed how the majority’s “‘compact syllogism” ( i.e., an offence is a violation of a sovereign’s law, the United States and the states are separate sovereigns, ergo successive state and federal prosecutions aren’t separate offenses) is “fatally flawed,” id.. at 1-11, and how its formulation of the doctrine fails to safeguard individual liberty and restrain the government.” Id. at 4 .

Justice Gorsuch closed his dissent expressing similar concern for individual liberty, explaining: “[W]hen the people adopted the Constitution and its Bill of Rights, they thought the liberties promised there worth the costs. It is not for this Court to reassess this judgment to make the prosecutor’s job easier. . . . 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. The separate sovereigns exception was wrong when it was invented, and it remains wrong today.” See Dissent, Gorsuch, J., at 24-25.

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