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.

The Gamble court addressed the existence of years of precedent on the “dual sovereignty” issue, stating that petitioner's arguments were too week to prevail in seeking to overrule the doctrine.  According to the opinion for seven members of the court (including Justice Thomas, except on the precedent issue), “Stare decisis 'promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions and contributes to the actual and perceived integrity of the judicial process.'” Therefore, “departure from precedent 'demands special justification.'”

Justice Thomas wrote a separate concurring opinion. He had no dispute with application of the “dual sovereignty” doctrine, but wrote on the subject of stare decisis. He insists that the court should decide cases “through adherence to the correct, original meaning of the laws” the court is charged with applying. He voiced concern that the court's approach to stare decisis “invites conflict with its constitutional duty,” concluding by emphasizing that “[o]ur judicial duty to interpret the law requires adherence to the original meaning of the text,” and therefore “we should not invoke stare decisis to uphold precedent that are demonstrably erroneous.” As the petitioner and dissenting judges did not demonstrate that dual sovereignty jurisprudence was “incorrect,” “much less demonstrably erroneous,” Justice Thomas concurred in adherence to the doctrine. Justice Ginsburg dissented, and indicated that “'[s]tare decisis is not an inexorable command.'” She stated that “adherence to precedent is weakest in cases 'concerning procedural rules that implicate fundamental constitutional protections.'” She recalled that before incorporation “the Clause restrained only federal, not state, action,” but now applies to both sovereigns. Justice Gorsuch dissented because he found the “dual sovereignty” doctrine is not based on wording in the Constitution. He would apply the Blockburger v. United States test requiring proof of a fact another offense does not contain (applied in the context of multiple prosecutions and multiple convictions by the same sovereign) to multiple prosecutions across jurisdictional lines as well as within the same jurisdiction.

It is now clear that a state can prosecute after the federal government, as well as the other way around. But the more interesting issue relates to the impact of Gamble on the future use of stare decisis, and whether the justices will adhere to their stated views in Gamble in other contexts.