Double Jeopardy Clause: Separate Sovereigns Exception

By: Nicole Martin

In Gamble v. United States, the U.S. Supreme Court will decide whether to overrule the separate sovereigns exception to the Double Jeopardy Clause. [1]  In United States v. Gamble, 694 Fed. Appx. 750 (2017), Terance Gamble “appeals his conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C. §922(g)(1).”[2]“Gamble argues that the district court erred by determining that double jeopardy did not prohibit the federal government from prosecuting Gamble for the same conduct for which he had been prosecuted and sentenced for by the state of Alabama.”[3]The U.S. Court of Appeals for the 11thcircuit held that “the district court did not err by determining that double jeopardy did not prohibit the federal government from prosecuting Gamble for the same conduct for which he had been prosecuted and sentenced for by the state in Alabama….[4]Gamble’s “dual convictions prolonged his incarceration by three years.”[5]The Supreme Court has established that “prosecution in state and federal court for the same conduct does not violate the Double Jeopardy Clause.”[6]

Stare decisis is another consideration in deciding whether the overrule the exception. The United States Supreme Court cases Bartkus v. Illinois, 359 U.S. 121 (1959) v. Abatte v. United States, 359 U.S. 197 (1959) involved the issue of “successive prosecutions by the state and federal governments for substantially the same offense”, where the court upheld both of the second prosecutions.[7]InBartkus, the issue involved “a federal prosecution and acquittal followed by a state prosecution and conviction.” [8]According to Moore v. Illinois, 55 U.S. 13 (1852), every citizen of the United States “may be said to owe allegiance to two sovereigns, and may be liable for an infraction of the laws of either.”[9]Thus, the defendant in Bartkus, was not put in double jeopardy for the same offense in his second prosecution.[10]Justice Frankfurter concluded that upholding this precedent is critical because “there is a danger of federal interference with the enforcement of state law” and “there is a great deal of difficulty in determining when the offenses are so much alike that one prosecution should bar another.”[11]

The Justice Department believes the separate sovereigns exception should be upheld based on the intent of the framers.[12]“The dual-sovereignty exception, by allowing two governments to do together what neither could do alone, undermines the fundamental protection of individual liberty that the Double Jeopardy Clause was adopted to achieve.”[13]Another concern with overruling the doctrine involves the “race to the court house” that could occur where “defendants cut deals with the more lenient authority to prevent prosecution by the more punitive one.”[14]

Although it is important not to undermine the significance of stare decisis, it is also important to consider the effects of prosecuting defendants for the same crime. Blacks and Hispanics are prosecuted at a significantly higher rate compared to other races. This exception can lead to harassment of low income and poor defendants, who are unable to fight both charges.[15]The ACLU, ACLU of Alabama, and the Cato Institute and the Constitutional Accountability Center filed an amicus brief in Gamble v. United Statesurging the Supreme Court to end this exception. [16]

Due to the injustice that can arise due to double jeopardy exception, the separate sovereign section should be overruled.  “[T]here are now over 4,500 federal crimes”, which significantlyoverlap with state law.[17]“This greatly increases the threat of duplicative prosecutions for a vast and increasing amount of conduct.” [18]“Prosecutorial piggybacking” can arise when state authorities may lose a case and the defendant is then tried in federal court, which often leads to prosecuting the same case over again. “Two policies, which are otherwise substantially similar, cannot be distinguished merely on the basis of different sovereigns.”[19] Multiple punishments for the same crime should be prohibited.

[1]Sheena Foye & James R. Wyrsch ABA. “SCOTUS to Decide on “Separate Sovereigns” Exemption to Double Jeopardy Clause” (September 10, 2018) American Bar Association.

https://www.americanbar.org/groups/litigation/committees/criminal/practice/2018/scotus-to-decide-on-separate-sovereigns-exemption-to-double-jeopardy-clause/

[2]United States v. Gamble, 694 Fed. Appx. 750, 750(2017)

[3]Id.

[4]Id.at 751

[5]Ariane de Vogue. “Supreme Court double jeopardy case could impact presidential pardon power.” (December 10 2018). CNN Politics.https://www.cnn.com/2018/12/06/politics/supreme-court-double-jeopardy-presidential-pardon-power/index.html

[6]Id.

[7]George C. Pontikes, Dual Sovereignty and Double Jeopardy: A Critique of Bartkus v. Illinois and Abbate v. United States, 14 W. Res. L. Rev. 700,700 (1963)

[8]Id.

[9]Id.at 702

[10] Id.

[11] Id.

[12] Constitution Accountability Center. https://www.theusconstitution.org/litigation/gamble-v-united-states/

[13]Id.

[14]  The Editorial Board. “The Supreme Court should keep the double-jeopardy exception” (December 15 2018). Washington Post. https://www.washingtonpost.com/opinions/the-supreme-court-should-keep-the-double-jeopardy-exception/2018/12/15/71ddde3e-fd7e-11e8-862a-b6a6f3ce8199_story.html?noredirect=on&utm_term=.235845f45175

[15]Ariane de Vogue. “Supreme Court double jeopardy case could impact presidential pardon power.” (December 10 2018) CNN Politics.https://www.cnn.com/2018/12/06/politics/supreme-court-double-jeopardy-presidential-pardon-power/index.html

[16]David Cole  & Somil Trivedi. “It’s time to Close a Loophole in the Constitution’s Double Jeopardy Rule”. (September 12, 2018) American Civil Liberties Union.https://www.aclu.org/blog/criminal-law-reform/its-time-close-loophole-constitutions-double-jeopardy-rule

[17]Id.

[18]Id.

[19]George C. Pontikes, Dual Sovereignty and Double Jeopardy: A Critique of Bartkus v. Illinois and Abbate v. UnitedStates, 14 W. Res. L. Rev. 700, 713 (1963)

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