On December 6, the Supreme Court heard oral argument in Gamble v. United States. Gamble calls on the court to revisit the Double Jeopardy Clause's dual sovereignty doctrine—to determine whether the clause bars prosecution by the federal government following a state prosecution for the same offense (or visa versa). Precedent favors the government, but a betting man should not wager too heavily against Gamble.

Background

If the Supreme Court overturns the dual sovereignty doctrine in Gamble, it will not be the first time that an unsavory character is the protagonist in the development of constitutional criminal procedure law. In 2008, Terence Gamble pleaded guilty in Alabama state court to robbery for using force during a theft. He was sentenced to 10 years' imprisonment but served nine months with the balance suspended. In 2013, he pleaded guilty to two domestic violence offenses. The first arose out of an incident in which he fired a gun when his girlfriend attempted to leave their home with their child after an argument. The second arose two months later, when he forced his way into the home of his then ex-girlfriend and attempted to assault her. He was sentenced to 180 days' imprisonment on the two offenses, with all but 42 days suspended. In October 2014, he fired a handgun into a title-loan company with two people inside.

That brings us to the conduct underlying the Supreme Court case. In November 2015, while the title-loan-company case was still pending, Gamble's car was stopped for a faulty headlight, and two bags of marijuana, a digital scale and a 9 mm handgun were found in a search. Gamble was indicted for state drug offenses and for a state firearm offense—for possessing a firearm while being a person “convicted of … a crime of violence [or a] misdemeanor offense of domestic violence” (Ala. Code §12-25-32(15)). In April 2016, he was indicted by a federal grand jury for being a felon in possession of a firearm (18 U.S.C. §922(g)(1)).

What followed, it seems, was a race to the courthouse. Shortly after the federal indictment was returned, Gamble pleaded guilty in state court and received a 10-year sentence—a sentence that resolved the shooting charges, the drug charges and the firearm charge—with all but 12 months suspended (and with the possibility of his serving the 12 months in a work-release program). Once sentenced in state court, Gamble moved to dismiss the federal indictment on double jeopardy grounds. The motion prompted the local U.S. Attorney's Office to seek direction from Washington as to whether it should go forward or apply the longstanding “Petite Policy,” under which the government will pursue a federal prosecution after a state disposition only if the state case has “left [a] substantial federal interest demonstrably unvindicated.”

No doubt because of Gamble's criminal history and relatively modest state sentence, Washington gave the green light, and the federal case proceeded. Gamble then pleaded guilty, reserving the right to raise a double-jeopardy claim on appeal. He was sentenced to 46 months' imprisonment to run concurrently with his state sentence. The Eleventh Circuit affirmed the conviction, and the Supreme Court granted Gamble's petition.

Dual Sovereignty and Double Jeopardy

The Supreme Court first enunciated the dual sovereignty doctrine more than 160 years ago and has reaffirmed it, in holding or dicta, some 25 times. But two terms ago in Puerto Rico v. Sanchez Valle, in which the court held that Puerto Rico and the United States were not separate sovereigns for double jeopardy purposes, Justices Ruth Bader Ginsburg and Clarence Thomas called for a “fresh examination” of the doctrine “in an appropriate case.” Puerto Rico v. Sanchez Valle, 136 S.Ct. 1863 (2016).

Gamble is that case, and it is fascinating for several reasons. Justice Thomas' desire to reconsider the dual sovereignty doctrine springs from his Originalism. Gamble's lawyers (a team from Jones Day) point to the 1775 case of King v. Roche, 168 Eng. Rep. 169 (K.B.) in support of their position. There, the court wrote that “if A, having killed a person in Spain, were there prosecuted, tried and acquitted, and afterwards were indicted here … he might plead the acquittal in Spain in bar” of an English prosecution. For Gamble's lawyers, that is the original meaning.

But Gamble reminds us that interpreting early English cases can be fraught with difficulty. As the Solicitor General's Office notes, the language in Roche can be viewed as dicta, and Roche himself subsequently withdrew his plea of prior acquittal and was tried in England and again acquitted. The more expansive reading of Roche—the one that Gamble's lawyers urge—relies on an annotation that does not appear in the 1789 or 1792 versions of the decision; it apparently was added to the case by a later reporter after the framing era.

Then there is the history of the Double Jeopardy Clause itself. As Gamble's lawyers observe, the original draft of the clause prohibited “more than one trial or one punishment for the same offense,” and Representative George Partridge suggested adding the words “by any law of the United States” at the end of the sentence. The proposed addition was rejected. Does that mean the Founders rejected a dual sovereignty exception, as Gamble's lawyers contend?

There is no easy answer to that question. A failed addition is a notoriously dangerous ground on which to rest an interpretation of an enacted text. If it was understood that the Double Jeopardy Clause was directed at the federal government, and not the states, then the Framers may have thought that Partridge's language was unnecessary.

Government's Argument

The government has its own argument based on founding-era history. It reminds the court that a prime colonial grievance was against the so-called “Murderers' Act,” passed by Parliament after the Boston Massacre. The Act provided that any government or customs officer indicted for murder in America could be tried in England, beyond the control of local American juries. On Gamble's theory of the clause, Massachusetts would have been precluded from prosecuting a British soldier who murdered an American if a London jury had already acquitted him or if he had been convicted there and received a light punishment. In the Solicitor General's words, given this history, “[i]t would be extraordinary to construe the Double Jeopardy Clause as granting … a foreign country the ability to shield murderers of Americans [think terrorists] from U.S. prosecution by trying them first.”

Amicus Brief

An amicus brief authored by law professors Paul Cassell and Stuart Banner raises another argument against the dual sovereignty doctrine—that it was created shortly before the Civil War to prevent free states from blocking the recapture of fugitive slaves. The history here is this: The Federal Fugitive Slave Act of 1793 made it a crime to obstruct the capture of a fugitive slave. In an effort to nullify the federal act, some northern states enacted statutes that prohibited the capture of a fugitive slave. In 1842, the Supreme Court put an end to the strategy: It held that the federal act preempted state laws that sought to impede the return of fugitive slaves.

As Professors Cassell and Banner tell it, abolitionists then conceived an alternative strategy: Instead of prohibiting the capture of fugitive slaves, the states could prohibit the harboring of fugitive slaves. If an abolitionist was first prosecuted for the crime in state court and acquitted (or convicted but punished lightly), a federal prosecution would be barred, provided there was no dual sovereignty exception to the clause.

In 1852, the Supreme Court decided Moore v. Illinois, 55 U.S. 13 (1852), in which the defendant was Richard Eells, a prominent abolitionist (Eells had died, and Moore was his executor), whose Illinois house was the first stop on the underground railroad for slaves escaping from Missouri. Eells had been convicted under state law for harboring a fugitive slave. In the Supreme Court, his lawyer argued that federal jurisdiction should be exclusive for harboring, or else a person could be twice punished for the crime. In ruling against Eells, the court took pains to make clear that a defendant convicted in a state court “could not plead the punishment of [the state] in bar” to a trial in federal court.

Moore was the first case in which the Supreme Court gave clear expression to the separate sovereign doctrine. That the doctrine's origins can be traced to the enforcement of the Fugitive Slave Act is not a fact in its favor.

No doubt Justice Ginsburg's call for a reexamination of the dual sovereignty doctrine in Sanchez had less to do with Originalism than with her concern for defendants' rights. In 1959 in Abbate v. United States, 359 U.S. 187 (1959), in which the Supreme Court reaffirmed the doctrine, Justice Hugo Black, joined by Chief Justice Earl Warren and Justice William Douglas, dissented. Justice Black's dissent rings loudly: “It is just as much an affront to human dignity and just as dangerous to human freedom for a man to be punished twice for the same offense, once by a state and once by the United States, as it would be for one of these two Governments to throw him in prison twice for the same offense.” Justice Ginsburg's concurrence in Sanchez Valle picks up on that theme. In her words, permitting consecutive prosecutions for the same offense simply because different sovereigns initiate them “hardly serves” the principles of finality and fairness that the Double Jeopardy Clause was intended to protect.

Questions in 'Gamble'

Perhaps the most intriguing question that Gamble raises is would it matter if the dual sovereignty doctrine were overturned? The test for successive prosecutions is the Blockburger test: Two offenses are different for purposes of the clause if each requires proof of an element that the other does not. Blockburger v. United States, 284 U.S. 299 (1932). That means a statute that proscribes burglary with a firearm is not the “same offense” as one that proscribes burglary at night. More to the point, the state law under which Gamble was prosecuted, which requires proof of a violent felony (not just any felony), and the federal law under which he was prosecuted, which requires proof that the firearm moved in interstate commerce, may be different offenses, if jurisdictional elements count in the Blockburger analysis. (The government has apparently forfeited this argument in Gamble.)

Take, for example, the Rodney King case. See Cassell, “The Rodney King Trials and the Double Jeopardy Clause,” 41 UCLA Rev. 693 (1993). In 1993, four police officers were convicted in federal court for brutally beating King (all captured on video) after being acquitted for the same conduct in a state trial. The state prosecution required proof of an assault (which the federal prosecution did not), and the federal prosecution required proof that the defendants had deprived King of a federally protected right with specific intent (which the state prosecution did not). Thus, the two were not the “same offense” for double jeopardy purposes, and, dual sovereignty doctrine or not, the federal trial would not have been barred.

In their brief, Gamble's lawyers tell the court that, under Blockburger, “it will … be the unusual case in which the federal and state governments may not bring some charge based on the same criminal occurrence.” Suffice it to say, it is uncommon for a litigant to advocate a radical change in the law by telling a court that it won't matter much.

Stare Decisis

The oral argument in Gamble made clear that, for some justices, the doctrine of stare decisis might be reason enough to leave the dual sovereignty doctrine intact. Justice Elena Kagan put it elegantly:

[Y]ou know, this is an 170-year-old rule, and it's an 170-year-old rule that … close to 30 justices have voted at one time or another specifically for … . And, you know, part of what stare decisis is, is a kind of doctrine of humility where we say we are really uncomfortable throwing over 170-year-old rules that 30 justices have approved just because we think we can kind of do it better.

Reading the transcript of the oral argument leaves one thinking that Gamble is too close to call.

Paul Shechtman is a partner at Bracewell in New York and teaches evidence and criminal procedure at Columbia Law School.