Terrance Gamble was pulled over by police for having a faulty headlight. Gamble was driving while being a felon. The police officer smelled marijuana and had probable cause to search the vehicle. From the search, the officer discovered both marijuana and a handgun. Under Alabama’s felons-in-possession-of-a-firearm statute Ala. Code § 13A-11-72 a felon is forbidden from possessing a firearm. Gamble was tried in Alabama state court where he pleads guilty to the offense and was sentenced to one year in prison.
Federal prosecutors indicted Gamble for the instance of possession under federal law. Gamble moved to dismiss due to being in violation of double jeopardy under the 5th amendment. The motion was denied under the dual sovereignty doctrine. The dual sovereignty doctrine concludes that two offenses are not the same offense if they are prosecuted by different sovereigns. Gamble pleaded guilty to the charges from the federal prosecutor with plans to appeal. He is sentenced to four years in prison.
Gamble appealed the court’s decision and eventually, the Supreme Court agrees to hear the case. He appeals on the grounds of double jeopardy. The court declined to overturn the longstanding dual sovereignty doctrine. They upheld the doctrine on a 7-2 vote. The court argues that this doctrine is not an exception to double jeopardy right put forth by the 5th amendment but actually follows the text of the 5th amendment.
Double jeopardy is broken down as the protection of individuals from being tried twice for the same offense. The court defines offense by law. The law is defined by the sovereigns. This opens up the possibility of being tried in federal court and state court for similar offenses.
There is an implication about how this could apply to President Donald Trump and other members of his campaign who are under investigation for alleged criminal conduct. As the President, he is able to pardon himself for any federal crimes before he leaves office. He could also pardon others who allegedly committed crimes that may be connected to his campaign. With the dual sovereignty doctrine in place, this means that the states could still try the President for any of the crimes allegedly committed in the state.
Questions:
Do you think the dual sovereignty doctrine undermines the purpose of double jeopardy?
Is this doctrine good or bad public policy?
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ReplyDeleteI disagree with the dual-sovereignty doctrine. I do think it undermines the Double Jeopardy Clause. However, I cannot phrase it better than Justice Ginsburg in her dissent in the case mentioned in the blog, Gamble v. United States. Below are two quoted extracts from her dissent that resonated with me. (Unfortunately, I couldn't figure out the formatting on the blog for block quoting.)
ReplyDelete1. "Justification for the separate-sovereigns doctrine centers on the word “offence”: An “offence,” the argument runs, is the violation of a sovereign's law, the United States and each State are separate sovereigns, ergo successive state and federal . . . . This “compact syllogism” is fatally flawed. See Braun, Praying to False Sovereigns: The Rule Permitting Successive Prosecutions in the Age of Cooperative Federalism, 20 Am. J. Crim. L. 1, 25 (1992). The United States and its constituent States, unlike foreign nations, are “kindred systems,” “parts of ONE WHOLE.” The Federalist No. 82, p. 493 (C. Rossiter ed. 1961) (A. Hamilton). They compose one people, bound by an overriding Federal Constitution. Within that “WHOLE,” the Federal and State Governments should be disabled from accomplishing together “what neither government [could] do alone—prosecute an ordinary citizen twice for the same offence.” Amar & Marcus, Double Jeopardy Law After Rodney King, 95 Colum. L. Rev. 1, 2 (1995)." Gamble v.United States, 139 S.Ct. 1960, 1990 (2019).
2. "Our adherence to precedent is weakest in cases “concerning procedural rules that implicate fundamental constitutional protections.” Alleyne v. United States, 570 U.S. 99, 116, n. 5, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)." Ibid at 1991.
You make a very good point here.
DeleteDo you think the dual sovereignty doctrine undermines the purpose of double jeopardy?
ReplyDeleteThis is a great topic and one I was aware of but had not given it much thought. However, if a person robs a few stores in different states by deception and has products sent to his home, when found he runs and is in a high-speed chase over two different state lines, and shoots officers that have joined the chase in the three states. (it was a very long chase) could he only be charged with breaking the law in the state where the first offense was filed? Would you need to determine who gets this right or who gets the right first? Does the charges from the first state mean the next states cannot have their day in court? He broke the law in all jurisdictions as part of the same crime spree. I think he could be charged in all of the state for the same crime that he broke there. I don’t think the defense that the first state already tried him would be a good defense. I think the same logic could apply to breaking two completely different laws involved in the same offense. He broke a state law and he broke a federal law. They are different jurisdictions. If a person is convicted for selling child porn in a state case can he also be charge with selling child porn over a state line. Different jurisdiction different laws that were broken.
Is this doctrine good or bad public policy?
While there are examples where this may not appear fair I think over all it is fair to stand trial in all jurisdiction where the law was broken. This being said I think the judge should have the right to make sure that the punishments are carried out concurrently. If he had a one year and a four year sentence he should not get longer than the four years.
This is a super interesting concept! I think the news and media portray “Double Jeopardy” in a way that doesn’t address this State/Federal exception, so it is often assumed that someone can’t be tried twice and that is that. In response to your question, I think the dual sovereignty doctrine can undermine the purpose of double jeopardy, depending on how it is applied, but I think it was probably enacted as a “buffer” (for select situations) to prevent a defendant from evading charges. Although, it is difficult to say why exactly the dual sovereignty doctrine was enacted, it seems like a disservice of justice to enforce it with defendants such as Terrance Gamble. I think that it is public policy that has great potential for abuse and selective application but may prove beneficial in very limited circumstances.
ReplyDeleteI think that the duel sovereignty doctrine was exactly what the framers of the Constitution were trying to protect against when they passed the 5th Amendment and it undermines the Double Jeopardy Clause. I don’t think a state or the federal government should be able to have a second go round at charging a crime just because they are separate sovereigns / jurisdictions. It seems it would open the door to problems where a sovereign could step in if they weren’t happy with the outcome the first time. It also seems inherently unfair to any individual who has served their time, been released, but must still live in fear of being retried under a different sovereignty.
ReplyDeleteIn President’s Trump’s case, I’m not sure if Double Jeopardy would be an issue or not. If he were officially tried and then invoked his executive pardon to release himself of responsibility, then I do not think that states could try him again for the same crimes. But if he pardoned himself prior to any sort of criminal trial then I don’t think the Double Jeopardy Clause would apply and I think states could charge him for the crimes he allegedly committed once out of office.
It seems like it the law is "essentially the same" than double jeopardy should apply, in that sense I think that the duel sovereignty doctrine is outdated and should be revisited. However, there are certain crimes that are only federal crimes such as domestic terrorism. You could be tried for part of the act under state law and the rest under federal... that would be okay, but I don't think you should be able to be charged for the exact same thing under both.
ReplyDelete