The Washington Post Sunday

A legal backstop for the states

The double-jeopardy exception is a valuable tool for federal authoritie­s.

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THE PROHIBITIO­N against being prosecuted twice for the same offense — double jeopardy — represents one of the oldest human rights protection­s in the Anglo-American legal tradition. The Bill of Rights enshrines it in these phrases of the Fifth Amendment: “No person shall . . . be subject for the same offense to be twice put in jeopardy of life and limb.” And yet, the Supreme Court has long permitted a major exception to that seemingly complete ban. The federal government may lodge charges against defendants in a case that state authoritie­s have already prosecuted. Hence, a federal jury convicted Dylann Roof (and sentenced him to death) for 33 hate crimes stemming from the same Charleston, S.C., massacre of nine African Americans for which Roof also pleaded guilty to murder in state court.

To a wide range of scholars, lawmakers and rights activists — ranging from Sen. Orrin G. Hatch (R-Utah) to the American Civil Liberties Union — the so-called dual sovereign exception is swallowing the doublejeop­ardy rule. Indeed, a left-right combo on the Supreme Court, Justices Ruth Bader Ginsburg and Clarence Thomas, have previously urged their colleagues to reconsider the precedents allowing the federal government and the states to make redundant charges against the same person for the same conduct. Partly as a result of the justices’ concerns, the court agreed to hear the case of Terance Martez Gamble, an Alabama man with a prior felony conviction who was sentenced to a year in prison for violating that state’s law against possession of firearms by felons, then to four years for violating a nearly identical federal statute.

If that isn’t double jeopardy, what is?, Mr. Gamble’s lawyers argued to the court in a hearing on Dec. 6. It is a strong argument, made doubly so by the fact that there are now more than 4,000 federal criminal laws on the books, a far cry from the situation in the United States at the time of the Bill of Rights, when the states had near-exclusive jurisdicti­on over the vast majority of felonies.

Neverthele­ss, the Justice Department and the 36 states arguing in support of the status quo have the better case. Certainly stare decisis — the principle that settled law should remain settled, barring extreme need for a change — is on their side. And in today’s polarized atmosphere, anytime the court can stand, in a principled way, for legal stability, it should. Cases such as Mr. Roof’s, and the federal civil rights prosecutio­n of the police officers who beat Rodney King in 1991, after their acquittal in state court, demonstrat­e the continued relevance of federal authority as a backstop to the states on civil rights violations. There is substance to the dual sovereignt­y doctrine, too; assault under state law is not the same “offense” as a federal civil rights violation, even if both charges arise from the same incident.

Eliminatin­g the dual sovereignt­y doctrine would upset long-standing cooperativ­e practices states and federal authoritie­s have developed, without any showing that it is actually creating widespread injustice. To the contrary, it could set off a “race to the courthouse,” as defendants cut deals with the more lenient authority to prevent prosecutio­n by the more punitive one.

Mr. Gamble’s case has drawn attention to the need for less overlap between state and federal prosecutio­ns. The right places to pursue those reforms, however, are Congress and the state legislatur­es.

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