Dual prose­cu­tions reaf­firmed

State, U.S. may pur­sue same crime, Supreme Court rules

Arkansas Democrat-Gazette - - Front Page - In­for­ma­tion for this ar­ti­cle was con­trib­uted by Robert Barnes of The Wash­ing­ton Post; by Mark Sher­man of The As­so­ci­ated Press; and by Adam Liptak of The New York Times.

WASH­ING­TON — The Supreme Court on Mon­day reaf­firmed the con­sti­tu­tional rule that al­lows both state and fed­eral gov­ern­ments to pros­e­cute some­one for the same crime, a rul­ing with im­pli­ca­tions for Pres­i­dent Don­ald Trump’s abil­ity to of­fer par­dons.

The court’s 7-2 de­ci­sion re­jected ar­gu­ments that sub­se­quent prose­cu­tions violate the Bill of Rights’ pro­hi­bi­tion on more than one pros­e­cu­tion or pun­ish­ment for the same of­fense. Since the 1850s, the court has al­lowed one ex­cep­tion to that dou­ble-jeop­ardy pro­hi­bi­tion: State and fed­eral gov­ern­ments can pros­e­cute the same con­duct as sep­a­rate con­sti­tu­tional ac

tors with their own sov­er­eign au­thor­ity.

Had the court sided with the de­fen­dant, states might have been strug­gled to pur­sue crim­i­nal charges against de­fen­dants in the Rus­sia in­ves­ti­ga­tion in the event they were par­doned by Trump.

Jus­tice Sa­muel Al­ito Jr. wrote for the ma­jor­ity; Jus­tices Ruth Bader Gins­burg and Neil Gor­such dis­sented.

The case drew spe­cial at­ten­tion be­cause of Trump’s mus­ings that he might par­don some of­fi­cials caught up in in­ves­ti­ga­tions of the ad­min­is­tra­tion.

New York au­thor­i­ties al­ready have in­dicted Paul Manafort, Trump’s former cam­paign chair­man. Manafort has been sen­tenced to more than seven years on fed­eral con­spir­acy and fraud con­vic­tions. He also has been charged with mort­gage fraud and other crimes in New York.

Trump could par­don Manafort for his fed­eral con­vic­tions, but with Mon­day’s rul­ing, Manafort still would have to an­swer to the state charges by the Man­hat­tan dis­trict at­tor­ney’s of­fice.

The Supreme Court has long per­mit­ted suc­ces­sive prose­cu­tions and pun­ish­ments if one is brought by state pros­e­cu­tors and the other by the fed­eral gov­ern­ment.

Groups of con­ser­va­tives and lib­er­als who oppose the dou­ble-jeop­ardy ex­cep­tion

ar­gue that it ex­poses de­fen­dants to the po­ten­tial ha­rass­ment, trauma, ex­pense and some­times ex­tra pun­ish­ment that the clause was de­signed to prevent.

In more mod­ern times, the ex­cep­tion has been used to en­force civil rights. For in­stance, the Los An­ge­les po­lice officers who beat mo­torist Rodney King in 1991 were tried and ac­quit­ted in 1992. Within days of the ac­quit­tal, fed­eral pros­e­cu­tors brought charges against the officers.

The fed­eral gov­ern­ment and the states ar­gue that they have their own in­ter­ests in up­hold­ing their laws, and that they do not abuse the right.

“Each state has a strong in­ter­est in its sov­er­eign power to pros­e­cute vi­o­la­tions of its laws re­gard­less of the pros­e­cu­to­rial de­ci­sions of other sovereigns, whether the fed­eral gov­ern­ment or other states,” said a brief filed by Texas and 35 other states.

At the same time, more than 20 states have their own re­stric­tions on pros­e­cut­ing crimes for which an in­di­vid­ual has al­ready been pros­e­cuted, as does the De­part­ment of Jus­tice.


The mo­ti­va­tion for the court to ac­cept the case de­cided on Mon­day came from an un­likely duo: Gins­burg and Jus­tice Clarence Thomas.

In 2016’s Puerto Rico v. Sanchez Valle, the court ruled 6-2 that be­cause Puerto Rico is not a state, it is not a sep­a­rate sov­er­eign for dou­ble-jeop­ardy pur­poses. Gins­burg

con­curred with the rul­ing, and, joined by Thomas, called for a new look at the ex­cep­tion for states.

“The mat­ter war­rants at­ten­tion in a fu­ture case in which a de­fen­dant faces suc­ces­sive prose­cu­tions by parts of the whole U.S.A.,” Gins­burg wrote.

The case that would ad­dress that mat­ter, Gam­ble v. U.S., started long be­fore Trump took of­fice.

The case was brought by Ter­ance Gam­ble, who was con­victed of rob­bery in Mo­bile County, Ala., in 2008 and two do­mes­tic vi­o­lence charges in 2013. Un­der both state and fed­eral law, such a con­victed felon may not pos­sess a firearm.

But po­lice found a firearm in Gam­ble’s car when he was stopped in 2015. Gam­ble pleaded guilty to the state charges and was sen­tenced to a year in prison.

Fed­eral pros­e­cu­tors also brought charges, and he re­ceived a length­ier sen­tence with that con­vic­tion. Gam­ble said that vi­o­lated the dou­ble-jeop­ardy clause of the Con­sti­tu­tion’s Fifth Amend­ment.

Al­ito wrote that Gam­ble had failed to make his case.

“The his­tor­i­cal ev­i­dence as­sem­bled by Gam­ble is fee­ble,” he wrote. “Point­ing the other way are the clause’s text, other his­tor­i­cal ev­i­dence and 170 years of prece­dent.”

Al­ito wrote that states are sep­a­rate sovereigns, much as for­eign na­tions are, not­ing that U.S. prose­cu­tions of ac­tions in for­eign coun­tries are

specif­i­cally al­lowed.

He imag­ined a sce­nario in which a U.S. na­tional was mur­dered in an­other coun­try. Both na­tions, he wrote, would have an in­ter­est in pros­e­cut­ing the mur­derer. Un­der Gam­ble’s ar­gu­ment, Al­ito wrote, no U.S. court could pros­e­cute the sus­pect if he were al­ready tried in for­eign court.

“The mur­der of a U.S. na­tional is an of­fense to the United States as much as it is to the coun­try where the mur­der oc­curred and to which the vic­tim is a stranger,” he wrote. “That is why the killing of an Amer­i­can abroad is a fed­eral of­fense that can be pros­e­cuted in our courts, and why cus­tom­ary in­ter­na­tional law al­lows this exercise of ju­ris­dic­tion.”

Thomas joined Al­ito’s opin­ion, and wrote sep­a­rately to say that af­ter study­ing the is­sue more, “the his­tor­i­cal record does not bear out my ini­tial skep­ti­cism of the dual-sovereignt­y doc­trine.”

But Thomas, while sup­port­ing the long­stand­ing in­ter­pre­ta­tion of dou­ble jeop­ardy, used the bulk of his 17-page opin­ion to make an ex­tended cri­tique of the court’s gen­eral re­spect of prece­dents.

“When faced with a demon­stra­bly er­ro­neous prece­dent, my rule is simple: We should not fol­low it,” Thomas wrote.

Gins­burg, who at oral ar­gu­ment called fed­eral and state prose­cu­tions a “dou­ble whammy,” was stead­fast in her con­cerns.

She said the court should

have over­turned the dou­ble-jeop­ardy de­ci­sions at is­sue in Gam­ble’s case, say­ing they had “been sub­ject to relentless crit­i­cism by mem­bers of the bench, bar and academy.”

Gins­burg was also critical of the ma­jor­ity’s his­tor­i­cal ap­proach to the ques­tion. Much of Al­ito’s ma­jor­ity opin­ion was a de­tailed ac­count of old English de­ci­sions, trea­tises and found­ing-era ma­te­ri­als; at one point he wrote, “from the very dawn of the com­mon law in medieval Eng­land un­til the adop­tion of the Fifth Amend­ment in 1791.”

“This case,” she wrote, “does not call for an in­quiry into whether and when an 18th-cen­tury English court would have cred­ited a for­eign court’s judg­ment in a crim­i­nal case. Gam­ble was con­victed in both Alabama and the United States, ju­ris­dic­tions that are not for­eign to each other. English court de­ci­sions re­gard­ing the re­spect due to a for­eign na­tion’s judg­ment are there­fore in­ap­po­site.”

Reaf­firm­ing the prece­dent di­min­ishes “the in­di­vid­ual rights shielded by the Dou­ble Jeop­ardy Clause,” she wrote. “Dif­fer­ent parts of the ‘WHOLE’ United States should not be po­si­tioned to pros­e­cute a de­fen­dant a sec­ond time for the same of­fense.” The cap­i­tal­iza­tion re­flected a pas­sage in the Fed­er­al­ist Pa­pers.


Gor­such wrote his own dis­sent. He was not part of the 6-2 rul­ing in Puerto Rico v. Sanchez Valle; he joined the court al­most a year later, re­turn­ing it to nine jus­tices.

Gor­such ar­gued that the ma­jor­ity had vi­o­lated fun­da­men­tal fair­ness.

“A free so­ci­ety does not al­low its gov­ern­ment to try the same in­di­vid­ual for the same crime un­til it’s happy with the re­sult,” he wrote. “Un­for­tu­nately, the court to­day en­dorses a colos­sal ex­cep­tion to this an­cient rule against dou­ble jeop­ardy.”

Gor­such wrote that when gov­ern­ments “un­leash all their might in mul­ti­ple prose­cu­tions against an in­di­vid­ual, ex­haust­ing themselves only when those who hold the reins of power are con­tent with the re­sult, it is the poor and the weak, and the un­pop­u­lar and con­tro­ver­sial, who suf­fer first — and there is noth­ing to stop them from be­ing the last.

“The sep­a­rate sovereigns ex­cep­tion was wrong when it was in­vented, and it re­mains wrong to­day.”

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