The U.S. Supreme Court is currently re-considering the separate sovereigns exception to the Fifth Amendment's Double Jeopardy Clause. This doctrine, which has existed for nearly 200 years, allows a state government to bring charges for conduct that has already been the subject of federal prosecution (and vice versa). The timing of the Supreme Court's current case is auspicious; a U.S. president's pardon power extends only to federal crimes, and the separate-sovereigns exception could potentially be invoked to permit state prosecutions of pardoned individuals.

The Double Jeopardy Clause ensures that no one shall “be twice put in jeopardy” for the same offense. Under the separate sovereigns exception, however, a state and the federal government may both prosecute an individual for a single offense.  The exception reflects the core principle of our federalist system—state governments and the federal government are independent sovereigns. Therefore, where conduct violates both state law and federal law, an accused can be charged, tried and sentenced by both.

Terrence Gamble learned this the hard way. Police officers pulled over Gamble for a traffic violation and discovered a handgun, marijuana and a digital scale in his vehicle. The gun, coupled with the fact that Gamble had been convicted of robbery in Alabama in 2008, made him a felon-in-possession of a firearm. Both Alabama law and federal law prohibit a felon from possessing a firearm. Gamble pleaded guilty in state court and received, essentially, a one-year prison sentence. While his state prosecution was pending, but before his guilty plea, the federal government also charged him for the same incident. Following an unsuccessful motion to dismiss the federal indictment, he pleaded guilty in federal court and was sentenced to 46 months in jail. The U.S. Court of Appeals for the Eleventh Circuit affirmed the dismissal of his motion to dismiss, and he appealed to the Supreme Court.

Gamble's argument is straight-forward. He claims that the separate sovereigns exception is inconsistent with the language of the Double Jeopardy Clause. He also claims that the “foundational concepts of federalism” envisioned each of the two sovereigns in our system protecting individuals from the other sovereign—in other words, double protection—instead of allowing two sovereigns to punish the same conduct (double punishment).

The government responds by pointing to stare decisis, which counsels against overturning the longstanding exception, and the many practical problems that would result from upending 200 of precedent. The exception, according to the government, rests on the “long-held understanding” that an offense against a state and an offense against the federal government are two different offenses—two different laws are violated. And furthermore, should it be overturned, state and federal authorities would be pitted against each other. There would likely be races to the courthouse to bring charges, and state and federal prosecutors might refrain from cooperating with each other.

The stare decisis argument will be tough to beat. During oral argument in early December, the justices focused on the long-standing history of the exception. As Justice Elena Kagan pointed out, the exception is 170 years old, and 30 Supreme Court justices have previously voted in its favor. She described stare decisis as a “doctrine of humility”—and a rule nearly two centuries old should not be tossed aside simply because today's court thinks “we can do better.”

Justice Brett Kavanaugh echoed these concerns. For the exception to be overturned, he explained, Gamble would have to establish not just that it is wrong, but that “it's grievously wrong, egregiously wrong.” This is because, he said, “stare decisis itself is a constitutional principle.”

Justice Stephen Breyer tried to throw Gamble a life raft, noting that stare decisis cannot “always hold.” As he explained, there has to be a balance between stare decisis “always” holding and “never” holding. In response, the government explained that Gamble had not established that the exception was “grievously wrong” and then reiterated the practical concerns of overturning it—i.e., courthouse races and lack of cooperation between sovereigns.

Given the direction of the justices' questioning, it seems unlikely that Gamble will convince the court to invalidate the separate sovereigns exception. That will please those who worry about the scope of a president's pardon power. It will be slim comfort, however, for Terrence Gamble and other people across the country serving two jail sentences for one incident.

Stephen A. Miller practices in the commercial litigation group at Cozen O'Connor's Philadelphia office. Prior to joining the firm, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.

Leigh Ann Benson also practices in the firm's commercial litigation group. She received her J.D. from Villanova University School of Law and her B.A., magna cum laude, from Virginia Tech.