Supreme Court Justice Clarence Thomas speaks before The Edward J. Devitt Distinguished Service to Justice Award was presented to Judge Ralph Winter, Senior Judge of the United States Court of Appeals for the Second Circuit at the Thurgood Marshall Courthouse in Foley Square on Thursday, September 28, 2017. .(Photo by David Handschuh/NYLJ)
Every lawyer knows that the Fifth Amendment to the U.S. Constitution, applicable to the states through the 14th Amendment, protects individuals from being “twice put in jeopardy” “for the same offence.” But some do not recall the “dual sovereignty doctrine” permits multiple jurisdictions to prosecute under separate statutes for the same conduct or event because they are not the same “offence.” In Gamble v. United States, petitioner was convicted in state and federal court of firearm possession charges, and argued that the multiple convictions violated the double jeopardy clause. They did not, said the U.S. Supreme Court on June 17, because the state and federal charges are separate offenses.
Among Gamble’s arguments is the view that incorporation of the Fifth Amendment’s double jeopardy clause, making it applicable to the states through the 14th Amendment, prohibited successive prosecutions for state and federal crimes. The court disagreed, adhering to years of precedent and making clear that, despite the incorporation, states can prosecute for the same conduct or event after the federal government, and vice versa. There is nothing particularly remarkable about that position in New Jersey. Our Supreme Court has recognized the doctrine, see State v. Barone, 147 N.J. 597 (1997), and from a practical point of view, the Legislature has now substantially limited the “dual sovereignty” doctrine with respect to the ability to bring successive prosecutions in New Jersey after prosecution in another jurisdiction. Thus, the impact of the Gamble case, at least in New Jersey, and in many other states, flows from the discussion of the role of precedent and stare decisis, and of course we await the development of cases which are designed to address precedent “head on” in the U.S. Supreme Court.
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