Doing away with double prosecutions

The Constitution says you can’t be tried twice for the same offense. So why is it still happening?

The 5th Amendment to the U.S. Constitution provides that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” But that seemingly clear command didn’t protect Terance Gamble, an Alabama man with a robbery conviction on his record.

In 2015, Gamble’s vehicle was searched at a traffic stop and a gun was found. Gamble pleaded guilty to a state charge of being a felon in possession of a firearm, and was sentenced to a year in prison. But during the state prosecution he was also charged by the federal government for essentially the same crime arising from the same incident, and sentenced to more time.

Last week, Gamble’s lawyer asked the Supreme Court to overturn a legal doctrine that allows such dual prosecutions. The court should do so, even though it would involve overturning previous rulings.

Those rulings depended on a legal theory known as “dual sovereignty,” which holds that a state and the federal government are separate “sovereigns.” Under this theory, the 5th Amendment’s Double Jeopardy Clause isn’t violated when both levels of government punish the same defendant for what is essentially the same crime.

But as the late Justice Hugo Black pithily pointed out in a dissent in a 1959 ruling upholding the doctrine: “If double punishment is what is feared, it hurts no less for two ‘sovereigns’ to inflict it than for one.”

And why is it wrong to repeatedly try a defendant for the same offense? Here’s Black again: “The state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.”

The Double Jeopardy Clause protects defendants who are acquitted from further prosecutions for the same crime; it also protects convicted defendants from the ordeal of being put in legal jeopardy again.

In urging the court to overturn Gamble’s federal conviction, attorney Louis A. Chaiten ran into skepticism from the bench. The justices’ greatest concern seemed to be that dismantling the “dual sovereignty” doctrine would require the court to (as Justice Brett M. Kavanaugh put it) “depart from the humility of respecting precedent.”

No, the court shouldn’t lightly cast aside precedents, but there is a good reason for doing so in this case. Chaiten noted that the “dual sovereignty” doctrine has already been undermined by the Supreme Court’s holding in 1969 that states as well as the federal government are bound by the Double Jeopardy Clause. If federal and state prosecutions are governed by the same rules, it makes sense to read the Double Jeopardy Clause as forbidding successive prosecutions and punishment for the same crime regardless of whether the prosecutor works for the state or the federal government.

Moreover, the notion that the federal and state government are always separate “sovereigns” in law enforcement is naive. It is belied by the rise in “joint task forces” in which state, local and federal law enforcement officials cooperate. In the real world, the two “sovereigns” often operate as one.

Overruling precedent wasn’t the only issue on the justices’ mind at last Thursday’s oral argument. Some justices also worried that a ruling for Gamble might hamper enforcement of federal civil rights laws, which have been used to prosecute individuals acquitted in state courts.

For example, after a jury in Simi Valley jury acquitted two police officers of state assault charges in the 1991 beating of Rodney King, the U.S. Justice Department successfully prosecuted them for violating King’s civil rights. Similarly, the Justice Department in the 1960s prosecuted defendants in the South who had been acquitted in state court of crimes of violence against African Americans or civil rights workers.

Federal civil rights laws can serve as a safety valve when state courts fail to do justice. But the idea that a ruling for Gamble would hobble federal civil rights enforcement is alarmist. Both Justice Ruth Bader Ginsburg and the American Civil Liberties Union seem to agree on that.

Gamble was prosecuted twice for the same offense, a double dose of punishment that clearly violates the Double Jeopardy Clause. That is how the court should rule.