1 crime, 2 punishments? Justices OK with that
WASHINGTON – A coalition of liberal and conservative Supreme Court justices appeared unlikely Thursday to block the federal and state governments from prosecuting suspects twice for the same crime.
A majority of justices seemed inclined to retain the “dual sovereignty” exception to the Fifth Amendment’s double jeopardy clause.
An unusually long 80-minute oral argument signified the importance of the case to both sides and showcased the unlikely alliances the issue engendered.
On one side: defenders of the Consti- tution’s original meaning, such as Associate Justice Neil Gorsuch, and individual rights, led by Associate Justice Ruth Bader Ginsburg. To them, double jeopardy is unjustified and unfair.
On the other side: those opposed to overruling the court’s decisions except
in extreme cases, such as Associate Justice Elena Kagan, or who worried that blocking second prosecutions could harm law enforcement, help criminals and even lock in faulty verdicts reached overseas, such as Associate Justice Samuel Alito.
By the end of the debate, it seemed the latter group held five or even six votes, enough to maintain the status quo in which separate state and federal prosecutions are permitted.
The court’s newest justice, Brett Kavanaugh, said following Supreme Court precedent represented “a doctrine of stability and humility that we take very seriously.” To overrule it, he said, challengers must show the court’s prior ruling was “grievously wrong.”
The case has gained attention largely because of the possibility that President Donald Trump could pardon one or more of his former associates convicted in federal court by special counsel Robert Mueller as part of the investigation into Russian interference in the 2016 election.
If former Trump campaign chairman Paul Manafort or others were pardoned, they still could face state prosecutions for the same crimes under the court’s precedents. That rule applies because state and federal governments are separate sovereigns.
The Justice Department and a coalition of 36 states vehemently defended the status quo, which has led to successful second prosecutions after acquittals or hung juries.
It enabled Mississippi to convict Edgar Ray Killen of murdering three civil rights workers in 1964 after federal charges didn’t stick. It helped the federal government convict two Los Angeles police officers for the notorious 1991 beating of Rodney King after a county jury acquitted four officers of nearly all charges. And it helped federal officials win a guilty plea last year from a South Carolina police officer for the shooting death in 2015 of Walter Scott, an unarmed black man, after a state jury deadlocked.
If the court were to revert to a strict rule against double jeopardy, Associate Justice Stephen Breyer said, “look at the door we’re opening up.”
Ginsburg-Thomas coalition?
Two years ago, the court ruled 6-2 that Puerto Rico could not prosecute a suspect after his federal conviction because the territory, unlike states, derived its power from the United States. The liberal Ginsburg and conservative Associate Justice Clarence Thomas went further, suggesting that the court consider a rigid application of the double jeopardy clause for all levels of government.
Gorsuch implied Wednesday that the court’s approval of separate federal and state prosecutions was in error and asked why it should be preserved.
The case – delayed a day because of the national day of mourning for former President George H.W. Bush – is one of the most significant on an underwhelming docket. A ruling against the federal and state governments would upend 170 years of history and high court precedents dating back nearly 60 years. It would provide a victory for Terance Gamble, who received a one-year prison sentence from Alabama and 46 months from the federal government for the same firearms offense in 2015. Two lower courts upheld the sentences, citing Supreme Court precedent.
Although the terms are running concurrently, Gamble won’t be released until 2020. Had the federal government been barred from a second prosecution, he would be a free man.
“The purpose of the double jeopardy clause,” his lawyers argued in court papers, “is to protect against this most ancient and basic of evils.”
Overturning convictions?
That view has plenty of proponents who argue that the double jeopardy clause prevents abuse by prosecutors. They say it helps in obtaining plea bargains because defendants cannot hope for a second trial. Nearly half the states bar double jeopardy. That’s important for Mueller’s prosecution of Manafort, because the special counsel would have to cite different illegal conduct to bring state charges on top of federal charges. The government position, ironically, would help Mueller in the event of a Trump pardon. Clearing Manafort of federal tax charges would leave open the possibility of trying him on state tax charges.
In court papers, the federal and state governments cited the nation’s federalist tradition, which empowers the states. If the justices block dual prosecutions, the Justice Department says, it could lead those convicted to challenge “long-final convictions by whichever sovereign happened to go second.”
A coalition of states led by Texas argued that concerns “could arise whenever there is the potential for jurors to be improperly influenced or swayed, as with prosecutions in cases of political corruption.”