While we are examining cases pending in the U.S. Supreme Court, it makes sense to take a look at Gamble v. United States, No. 17-646 (Brief for Petitioner filed Sept. 4, 2018; argued Dec. 6, 2018). The case presents a simple, but vital, question:
“Whether the Court should overrule the ‘separate sovereigns’ exception to the Double Jeopardy Clause.”
The law as it currently stands, with the separate-sovereigns exception to the constitutional prohibition against double jeopardy, allows a person to face charges—and be convicted and sentenced—for the same offense twice if a state charges him or her and the federal government does likewise. For the petitioner in Gamble, for example, a faulty headlight led to his arrest in Mobile, Alabama. Marijuana, a digital scale, and a handgun in the car led to charges, which, when combined with a prior felony conviction, led to a one-year sentence in Alabama for being a felon in possession of a firearm.
The rub arose when, during the state-court proceedings, the feds stepped in and also charged the defendant with being a felon in possession of a firearm—this time under federal law. The defendant objected to the federal prosecution, arguing that it violated his Fifth Amendment right against being placed twice in jeopardy for the same offense. He moved, unsuccessfully, to dismiss his federal indictment.
The Supreme Court is now considering whether to overrule the separate-sovereigns doctrine. The Gamble petitioner has pointed out that the text of the Double Jeopardy Clause does not contemplate an exception to its protection from double prosecution and punishment for the same offense—Congress could have phrased the clause to exclude prior state convictions, but it did not. It considered and rejected such an exclusion and instead phrased the clause in absolute terms.
In facing the issue of stare decisis, the Gamble petitioner points out that the separate-sovereigns exception “was egregiously wrong from the start,” and thus carries less precedential force. The doctrine “originated in ill-considered dicta and solidified through a series of decisions that ignored prior precedents and never meaningfully engaged with the text or original meaning of the Double Jeopardy Clause.” The petitioner cites decisions that “were decided by the narrowest of margins over spirited dissents” to illustrate the controversy and scant support for the doctrine. Supreme Court justices, lower-court judges, and legal scholars have long questioned the separate-sovereigns exception. Thus, stare decisis lacks force here where the “doctrinal underpinnings have been eroded.”
The Gamble petitioner cites Justice Black: “‘Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization,’ with roots in Greek and Roman law.” Regarding federalism, the Gamble petitioner makes an interesting observation. The separate-sovereigns exception contravenes foundational concepts of federalism. The division of power between two distinct governments (state and federal) aimed at affording people “double security,” as discussed in Federalist No. 51. Federalism was supposed to protect liberty—not undermine it. Yet with the separate-sovereigns exception to the double-jeopardy prohibition, we’ve seen a marked erosion of liberty.
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