The Supreme Court’s 7-2 decision in Gamble v. United States, No. 17-646 (June 17, 2019), reaffirming the “dual-sovereignty doctrine”—under which “a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute,” slip op. at 1—is a goldmine for politically motivated state attorneys general (“AGs”).
Many state AGs (and other state or local prosecutors) use high-profile prosecutions as a vehicle for self-aggrandizement and political advancement. See, e.g., Josh Kurtz, Democratic AG’s seek higher office by fighting Trump, Climatewire (Jan. 9, 2018) (“the position of state attorney general—particularly in the 21st Century—has been a springboard to higher office”). The Supreme Court’s Gamble decision enables such ambitious state prosecutors to continue pursuing criminal proceedings against individuals who also are prosecuted, and even acquitted, for parallel federal offenses.
There potentially is an even darker side to Gamble’s endorsement of state prosecutions which, in reality, flout the Constitution’s prohibition against double jeopardy: Gamble may, as a practical matter, enable state AGs to negate the President’s constitutional pardon power for offenses against the United States—a power that does extend to violations of state law.
Gamble upholds the dual-sovereignty doctrine
Gamble is a lengthy, intense decision focusing on the Fifth Amendment’s Double Jeopardy Clause, which “provides that no person may be ‘twice put in jeopardy’ ‘for the same offence.’” Slip op. at 1. Gamble, the defendant, pleaded guilty in an Alabama state court to a gun possession charge, and was sentenced to one year in prison. Apparently regarding that sentence as too lenient, federal prosecutors then pursued a parallel federal charge. Gamble then pleaded guilty to the federal charge, and received nearly three more years in prison. But he reserved the right to appeal on the ground that ‘[t]he federal indictment was for ‘the same offence’ as the one at issue in his state conviction and thus exposed him to double jeopardy.” Id. at 2.
Invoking “historical evidence,” id. at 2, “170 years of precedent,” id., and stare decisis, id. at 11, Justice Alito’s majority opinion (joined by Chief Justice Roberts and Justices Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh) focuses on the meaning of “offence.” The majority holds that “an ‘offence’ is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns [i.e., the Federal Government and a State government], there are two laws, and two ‘offences.’” Id. at 4. And thus, no double jeopardy for the same offence.
Justice Thomas agrees, but lays groundwork for cabining stare decisis; Justice Ginsburg dissents, describing the dual-sovereignty doctrine as “misguided”
Justice Thomas filed a separate opinion “to address the proper role of the doctrine of stare decisis.” In his view, “we should not invoke stare decisis to uphold precedents that are demonstrably erroneous,” but the Court’s dual-sovereignty Double Jeopardy Clause precedents do not fall into that category. Thomas (concurring) at 9. In contrast, Justice Ginsburg filed a dissenting opinion, criticizing the “misguided doctrine” that “for double jeopardy purposes, identical criminal laws enacted by ‘separate sovereigns’ are different ‘offence[s].’” Ginsburg (dissenting) at 1.
Justice Gorsuch’s dissent emphasizes the practical implications of the Court’s holding
Justice Gorsuch’s dissenting opinion emphasizes the unfairness of the Court’s decision to uphold the dual-sovereignty doctrine:
“A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. . . . My colleagues say that the federal government and each State are ‘separate sovereigns’ entitled to try the same person for the same crime. So if all the might of one ‘sovereign’ cannot succeed against the presumptively free individual, another may insist on the chance to try again. And if both manage to succeed, so much the better; they can add one punishment on top of the other.” Gorsuch (dissenting) at 1.
On an even more practical note, Justice Gorsuch’s dissent describes the following situation:
“Imagine trying to explain the Court’s separate sovereigns rule to a criminal defendant, then or now. Yes, you were sentenced to state prison for being a felon in possession of a firearm. And don’t worry—the State can’t prosecute you again. But a federal prosecutor can send you to prison again for exactly the same thing. What’s more, that federal prosecutor may work hand-in-hand with the same state prosecutor who already went after you. They can share evidence and discuss what worked and what didn’t the first time around. And the federal prosecutor can pursue you even if you were acquitted in the state case. None of that offends the Constitution’s plain words protecting a person from being placed ‘twice . . . in jeopardy of life or limb’ for ‘the same offence.’ Really?” Id. at 6.
And under Gamble, the converse also may occur, where a defendant may be indicted and prosecuted for a state offense even after federal proceedings have been brought against the same defendant for a corresponding federal offense arising out of the same conduct.
Conclusion
As the majority opinion discusses at length, parallel federal and state criminal prosecutions for the same conduct have been the rule for a very long time. In light of the Court’s upholding the underlying dual-sovereignty (federal/state) doctrine, the challenge in today’s divisive and supercharged political climate is to avoid prosecutorial abuse, especially at the state level.
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