When Does Double Prosecution Count as Double Jeopardy?

When Does Double Prosecution Count as Double Jeopardy?

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When Does Double Prosecution Count as
Double Jeopardy?
August 16, 2018

After a broken headlight led to the discovery of a loaded handgun in Terance Martez Gamble’s
car, he found himself in a familiar spot: pleading guilty to a felony in Alabama court, this time
for having a firearm despite a prior robbery conviction. A few months later, however, Gamble
would find himself pleading to having that handgun all over again—only now in federal court,
for a substantively overlapping federal charge. On June 28, 2018, following a failed bid by
Gamble to have that second conviction overturned in the federal court of appeals, the U.S.
Supreme Court agreed to consider whether that federal prosecution violated Gamble’s right
under the Fifth Amendment’s Double Jeopardy Clause not to be put in jeopardy twice for the
same crime. And, with Gamble v. United States, the Court may well rule that it did, despite long
having said just the opposite.
Gamble’s case challenges what, until his appeal, seemed like a firmly settled point of
constitutional law. Although the Double Jeopardy Clause provides that no person shall “be
subject for the same offense to be twice put in jeopardy of life or limb,” the Supreme Court has
made clear that that protection has its limits. And one of the most significant arises in a case like
Gamble’s, where federal and state authorities both seek to prosecute a defendant for the same
conduct. For, despite some pointed criticism over the years, the Court has long held that such
double prosecutions do not amount to double jeopardy.
This judicial “carve-out” from the Fifth Amendment—called the separate or dual sovereigns
exception—has enjoyed a “long, unbroken, unquestioned” run in the Court’s Double Jeopardy
jurisprudence. And, according to the Court, the justification for it boils down to constitutional
basics—indeed, to the “basic structure of our federal system.” Because our federalist system
“split[s] the atom of sovereignty,” the states and the federal government each enjoy the authority
to enact their own, separate criminal laws. And when those laws happen to overlap, by
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outlawing the same conduct, a single wrongful act will end up spawning two separate offenses,
one under each “sovereign’s” law. If federal and state prosecutors then separately decide to file
charges for that same misconduct, the defendant will face two prosecutions for two legally
distinct offenses, one state and the other federal. And as those prosecutions will therefore not
involve “the same offense,” the Double Jeopardy Clause simply “drops out of the picture.”
Gamble’s case is a hornbook example. As he was facing prosecution in Alabama court for
unlawfully having a handgun, a federal grand jury was preparing to indict him for a virtually
identical offense under federal law. It so happened that Gamble ended up in state court, pleading
to the state charge, first. After pleading to that state offense, Gamble then sought to have the
federal charge dismissed, citing the Double Jeopardy Clause. But the federal district court
refused, pointing to the separate-sovereigns exception. Effectively out of options, Gamble then
pled to the federal charge—tacking another three years’ imprisonment onto his one-year state
sentence. An appeal to the U.S. Court Appeals for the Eleventh Circuit followed, but also
fizzled, again due to the separate-sovereigns exception.
In his petition for writ of certiorari Gamble has therefore asked the court to resolve a single
question: whether the time has come for the separate-sovereigns exception to go. And by taking
the opportunity to revisit that question, the Court may well make a major about-turn in its
Double Jeopardy jurisprudence.
But to do that, the Court would first have to undo a lot of case law—by the government’s count,
more than 150 years’ worth of the Court’s cases, reaching as far back as 1852, and continuing up
until just two years ago, with Puerto Rico v. Sánchez Valle. Nevertheless, picking up on a
suggestion floated by Justices Ginsburg and Thomas in Sánchez Valle, Gamble argues that a
“fresh examination” of the exception is long overdue. As he points out, the Double Jeopardy
Clause itself says nothing about sovereigns; it instead speaks simply of prosecutions for “the
same offense.” That choice of words—and, arguably, their original meaning—could suggest that
what should matter for double jeopardy is not the “sovereign” doing the prosecuting, but the
conduct being punished. And, text aside, Gamble contends that history has since revealed the
separate-sovereigns exception to be an unjust anachronism, now that the Double Jeopardy Clause
has been applied to the states, and given that state authorities are increasingly teaming up with
federal prosecutors, who are themselves charged with policing an ever expanding universe of
federal crimes. The government, meanwhile, has urged the Court to stick by its long-held views
on the separate-sovereigns exception, pointing to many of the same reasons the Court itself has
given over the years. And the government points as well to the Department of Justice’s
longstanding policy presuming that “a prior prosecution, regardless of result, has vindicated
[any] relevant federal interest,” arguably diminishing the likelihood of a duplicative prosecution
by the federal government.
Although it is ultimately up to the Supreme Court to decide the fate of the separate-sovereigns
exception, Congress does have some say on one part of that carve-out—the scope of federal
prosecutions. Congress could, for example, strengthen the Department of Justice’s current
“Petite policy,” presuming that a prior prosecution has already vindicated any federal interest, by

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codifying a general requirement that the Attorney General certify that a state prosecution has in
fact left some important federal interest “demonstratively unvindicated” before pursuing a
federal case. Indeed, Congress has done just that before, in the context of certain hate crimes
under 18 U.S.C. § 249(b)(1)(C) and (D). Less clear, however, is how much that requirement
would really restrain successive prosecutions, given the “great deference” courts show
prosecutorial decisions of that kind, if they review them at all.
But even if the Supreme Court were to overturn its longstanding recognition of the separate-
sovereigns exception, that decision may only modestly affect prosecutorial practice. A major
reason is that these successive prosecutions already appear to be uncommon. Indeed, about half
of the states have forbidden successive prosecutions to varying degrees. And the DOJ continues
to observe its Petite policy, without, however, creating any enforceable rights for defendants.
The Gamble case may nevertheless have significant collateral legal effects. A ruling for Gamble,
for instance, could affect the availability of the Sixth Amendment right to counsel for some
defendants, like those facing federal and state prosecutors teamed up for joint taskforces, since
the federal courts have generally looked to double-jeopardy jurisprudence to decide what counts
as an “offense” subject to that Sixth Amendment right. And, perhaps more notably, a win for
Gamble could also indirectly strengthen the President’s pardon power, by precluding a state from
prosecuting an already-pardoned defendant who has gone to trial on an overlapping offense.
But for Gamble, and defendants like him, a win in the Supreme Court would mean something
more much concrete—the difference between freedom and more time behind bars. His case is
expected to be heard sometime in the next several months.

Author Information

JD S. Hsin

Legislative Attorney

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