Double Jeopardy “Loophole” Withstands Supreme Court Review in Gamble v. United States

By Jovalin Dedaj

The protection against double jeopardy is guaranteed by the Fifth Amendment of the United States Constitution.  While well enshrined in both the law and public awareness,  this protection does not actually extend to a situation in which state and federal authorities seek to prosecute a defendant for the same offense.  For decades, the Supreme Court has justified this exception to the Double Jeopardy Clause by invoking the dual sovereignty doctrine.  Yesterday, in Gamble v. United States, the Supreme Court doubled down on its previous decisions and upheld the double jeopardy exception that allows federal and state prosecutors to pursue alleged criminals for the same offense.

Terance Gamble pleaded guilty to federal charges of unlawful possession of a firearm.  He was also previously convicted in the State of  Alabama for the same offense.  Alabama sentenced Gamble to a one-year term of imprisonment.  The federal charges, however, carried an additional three-year term of incarceration.  Gamble appealed to the Supreme Court, arguing that the Double Jeopardy Clause prohibits successive prosecutions by different sovereigns.

He lost.  By a 7-2 vote, the majority disagreed with Gamble, explaining that an “‘offence’ is defined by a law, and each law is defined by a sovereign [and] [s]o where there are two sovereigns, there are laws, and two ‘offences.’”  Writing for the Court, Justice Alito summarized, “[A] crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate.”

Justice Ginsburg dissented, arguing that the application of the dual sovereignty doctrine in the double jeopardy context “overlooks a basic tenet of our federal system.”  To the extent a crime offends the “peace and dignity” of a sovereign, Justice Ginsburg argued that the “‘sovereign’ is the people” because “‘ultimate sovereignty’ resides in the governed.”

She found an unlikely ally in Justice Gorsuch, who argued that an originalist interpretation of the Fifth Amendment could not rationalize the “colossal exception to [the] ancient rule against double jeopardy” endorsed by the majority.  Relying on Roman and Greek law and English jurisprudence, Justice Gorsuch insisted that the Framers of the Constitution did not consider the word “offence” to be sovereign-specific.  Justice Gorsuch asked:

Imagine trying to explain the Court’s separate sovereigns rule to a criminal defendant, then or now. Yes, you were sentenced to state prison for being a felon in possession of a firearm. And don’t worry—the State can’t prosecute you again. But a federal prosecutor can send you to prison again for exactly the same thing. What’s more, that federal prosecutor may work hand-in-hand with the same state prosecutor who already went after you. They can share evidence and discuss what worked and what didn’t the first time around. And the federal prosecutor can pursue you even if you were acquitted in the state case. None of that offends the Constitution’s plain words protecting a person from being placed “twice . . . in jeopardy of life or limb” for ‘the same offence.’ Really?

The majority, however, insisted that the Double Jeopardy Clause was written to “honor the substantive differences between the interests that two sovereigns can have in punishing the same act.”  For the majority, this was precisely how the Framers of the Constitution intended our system of federalism to function.  For Justice Gorsuch, the loophole would permit the “government to try the same individual for the same crime until it’s happy with the result.”

In truth, there can from time to time be meaningful cooperation between federal and state authorities for prosecuting the same crimes.  Indeed, the government argued that Gamble’s case was a rarity. But many states, joining in an amicus brief filed by Texas, argued in favor of the preservation of their state-law based prerogatives  in prosecuting violations of their laws regardless of the prosecutorial decisions made by the federal government or even other states.  With Gamble, the Supreme Court has reinforced those interests with little hope of the status quo ever changing.