SCOTUS Rules States and Feds Can Prosecute Someone for 'Same Crime'
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."
June 17, 2019 at 10:39 AM
5 minute read
The original version of this story was published on National Law Journal
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:
[falcon-embed src="embed_1"]
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllLitigators of the Week: After a 74-Day Trial, Shook Fends Off Claims From Artist’s Heirs Against UMB Bank
‘It's Your Funeral’: Avoiding Doing Damage to Your Client’s Case With Uncivil Behavior
Tips From—and About—the New Judges on the Northern District of California Bench
Trending Stories
- 1'Fulfilled Her Purpose on the Court': Presiding Judge M. Yvette Miller Is 'Ready for a New Challenge'
- 2Litigation Leaders: Greenspoon Marder’s Beth-Ann Krimsky on What Makes Her Team ‘Prepared, Compassionate and Wicked Smart’
- 3A Look Back at High-Profile Hires in Big Law From Federal Government
- 4Grabbing Market Share From Rivals, Law Firms Ramped Up Group Lateral Hires
- 5Navigating Twitter's 'Rocky Deal Process' Helped Drive Simpson Thacher's Tech and Telecom Practice
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250