Supreme Court hears arguments in ‘separate sovereigns’ double jeopardy case
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Supreme Court hears arguments in ‘separate sovereigns’ double jeopardy case

The US Supreme Court heard oral arguments Tuesday in Gamble v. United States, a case that will decide whether a longstanding exception to the Constitutional protection against double jeopardy will remain in effect.

Terence Gamble was convicted of robbery in Alabama in 2008. As a convicted felon, Gamble was not permitted to own or possess a firearm under both federal and state laws. When pulled over for a traffic violation seven years later, Gamble was found to be in possession of a handgun and charged in Alabama as a “felon-in-possession” by state prosecutors. Concurrently, federal prosecutors charged Gamble under federal felon-in-possession laws. Gamble appealed his convictions, stating that the Constitutional protection from double jeopardy should have prevented him being tried twice for the same crime.

The Fifth Amendment to the US Constitution states that no person can “be subject for the same offense to be twice put in jeopardy of life or limb,” prohibiting multiple trials for the same offense. However, a common law exception has been in force under the “separate sovereigns” doctrine since the founding of the country, allowing both federal and state prosecutors to charge an individual under the theory that the state and federal governments are separate actors and being charged separately with state and federal crimes is therefore not double jeopardy.

In his argument, Gamble presented evidence that the doctrine has been misunderstood and applied inconsistently with the precedent inherited from the English courts upon which it is based. Some justices seemed unmoved by this argument, however. Justice Brett Kavanaugh stated that to dismiss the separate sovereigns doctrine would “greatly impact national security operations” by preventing the US from convicting individuals who were tried in other countries for crimes like terrorism even if the result was inconsistent with what the US. believed should have been the outcome. Likewise, Justice Stephen Breyer described it as a “opening a door” to blocking federal prosecution against individuals that committed crimes on Native American lands. However, Justice Ruth Bader Ginsburg described the doctrine as a “double whammy” for individuals who could face inflated jail time for relatively minor offenses. Gamble’s position was also supported in amicus briefs by 36 states and various groups like the American Civil Liberties Union and the National Association of Criminal Defense Lawyers.

The case is being widely watched for its potential impact on the Trump administration’s ability to issue pardons, though current political considerations were not discussed in the oral arguments Thursday. The president has repeatedly stated that he may pardon members of his government who are convicted of federal crimes. However, under the current separate sovereigns exemption, individual states would still be able to charge and convict administration officials who were pardoned by the president for federal crimes under state statutes.