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“SEPARATE SOVEREIGNS” MAY BOTH TRY DEFENDANT AS FELON-IN-POSSESSION FOR SAME INCIDENT

The Supreme Court yesterday refused to abandon the dual-sovereignty doctrine, which permits a state to try a defendant for an offense, and then allow the federal government to try him or her for the same conduct.

Police caught Terence Gamble with a loaded handgun. He pled guilty to an Alabama felon-in-possession-of-a-firearm statute. He was then indicted in federal court for the same incident. Terence moved to dismiss, arguing that the federal indictment was for the same offense as the one at issue in his state conviction, thus exposing him to double jeopardy under the Fifth Amendment. The District Court denied this motion, invoking the dual-sovereignty doctrine, according to which two offenses “are not the ‘same offence’ ” for double jeopardy purposes if “prosecuted by different sovereigns,” The 11th Circuit affirmed.

Yesterday, the Supreme Court upheld the “dual sovereignty” doctrine in a 7-2 opinion. In a verbal pretzel of a justification, the Court held that the Double Jeopardy Clause protects defendants from being “twice put in jeopardy” “for the same offence.” But as it was originally understood, the Court said, an “offence” is defined by a law, and each law is defined by a sovereign. Thus, where there are two sovereigns, there are two laws and, therefore, two “offences.”

The Court said Terence was trying to show from the Double Jeopardy Clause’s drafting history that Congress must have intended to bar successive prosecutions regardless of what government brought the charge. “But even if conjectures about subjective goals” of the framers of the Constitution “were allowed to inform this Court’s reading of the text, the Government’s contrary arguments on that score would prevail.”

Justice Gorsuch (a Trump appointee) and Justice Ginsberg (a Clinton appointee) dissented. Justice Ginsberg called the difference in sovereigns a “metaphysical sublety” on which a defendant’s freedom should not be frittered away. Justice Gorsuch, who for his conservative philosophy seems to be a champion of criminal justice, started his long dissent like this:

A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy. My colleagues say that the federal government and each State are “separate sovereigns” entitled to try the same person for the same crime. So if all the might of one “sovereign” cannot succeed against the presumptively free individual, another may insist on the chance to try again. And if both manage to succeed, so much the better; they can add one punishment on top of the other. But this “separate sovereigns exception” to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history. Instead, the Constitution promises all Americans that they will never suffer double jeopardy. I would enforce that guarantee.

Gamble v United States, Case No. 17-646 (June 17, 2019)

– Thomas L. Root