Justice Samuel Alito Jr. Credit: Diego M. Radzinschi / ALM

The U.S. Supreme Court on Monday refused to overrule a 170-year-old exception to the constitutional prohibition against prosecuting someone more than once for the same offense.

The exception to the Constitution's double jeopardy clause, known as the “dual sovereignty doctrine,” allows a state to prosecute a defendant under state law even if the federal government has prosecuted him or her for the same conduct under federal law.

“We have long held that a crime under one sovereign's laws is not 'the same offence' as a crime under the laws of another sovereign,” wrote Justice Samuel Alito Jr. for the 7-2 majority in Gamble v. United States. “We see no reason to abandon the sovereign-specific reading of the phrase 'same offence,' from which the dual-sovereignty rule immediately follows.”

Alito said that fidelity to the double jeopardy clause's text “does more than honor the formal difference between two distinct criminal codes. It honors the substantive differences between the interests that two sovereigns can have in punishing the same act.”

Justices Ruth Bader Ginsburg and Neil Gorsuch wrote separately in dissents.

“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,” Gorsuch wrote in his dissent.

Alito rejoined: “The United States is a federal republic; it is not, contrary to Justice Gorsuch's suggestion, a unitary state like the United Kingdom.”

Ginsburg said in her dissent: “Different parts of the 'WHOLE' United States should not be positioned to prosecute a defendant a second time for the same offense. I would reverse Gamble's federal conviction.”

Terance Gamble is an Alabama man who was convicted and sentenced in state and federal prosecutions for the same crime: felon in possession of a firearm. Gamble, represented by Jones Day partner Louis Chaiten had asked the justices to overrule a doctrine known as the “separate sovereigns” exception to the Fifth Amendment's double jeopardy clause.

Gamble's case initially drew considerable attention because of its potential import for Special Counsel Robert Mueller III's possible federal prosecutions of Russian interference in the 2016 election and involvement of the Trump campaign. Without the separate sovereigns exception, states would be barred from pursuing parallel prosecutions under their state laws.

The outcome of the case was being closely watched for its potential impact on state prosecutions of Paul Manafort, the former Trump campaign manager convicted in federal court in Washington and Virginia on various financial and lobbying crimes. Separately, state prosecutors have brought charges in New York.

During arguments in December, a number of justices appeared skeptical of Chaiten's position. Chaiten emphasized that the separate sovereigns exception was inconsistent with the original meaning of the double jeopardy clause as well as its text and purpose.

Justice Brett Kavanaugh, himself a self-described originalist, said that argument conflicted with “another part of the original understanding—stare decisis” (standing by precedent). Justice Elena Kagan told Chaiten that his argument seemed “a little bit one note” and that he needed to offer more in order to persuade her to overrule the exception.

At oral argument, Ginsburg told Assistant to the Solicitor General Eric Feigin that the separate sovereigns doctrine has been “widely criticized” by federal judges and academics.

Feigin responded that many of those critical comments also recognized that “some exceptions are necessary, and that successive prosecutions and separate prosecutions are sometimes necessary to vindicate particular sovereign interests.”

Eliminating the exception, Feigin warned, would create a host of practical problems, including deterring cooperation, encouraging aggressive prosecutions, a race to the courthouse, and defendants trying to play each sovereign against the other.

Chaiten, in rebuttal, told the court that at least 20 states do not have the separate sovereigns exception, and at least 37 with respect to certain crimes. “It also seems to have worked out okay,” he said.

Texas Solicitor General Kyle Hawkins shared argument time with Feigin on behalf of a coalition of 36 states.

 

 

The opinion is posted below:

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