The Second Prosecution Gamble

The Supreme Court will hear oral argument in Gamble v. United States this morning, which might have been cause for celebration at any other time in history. But not today.

On Thursday, the Supreme Court will hear Gamble’s complaint in Gamble v. United States: If the Constitution protects against “double jeopardy,” what allows both the state of Alabama and the U.S. government to convict and imprison him for the very same crime?

The Fifth Amendment says that no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.” At first glance, Gamble’s double sentences seem to violate that rule because the “offences” were the same—possessing the very same gun after the very same state felony conviction. The catch is that under the “separate sovereigns” rule, a defendant can be prosecuted by the feds and a state—or by two different states—for precisely the same crime. And, in Gamble’s case, there were two different sovereigns involved. By breaking Alabama’s “felon-possession” statute, Gamble “offended” the state of Alabama; by breaking the federal statute, he also “offended” the United States.

The “dual sovereignty” doctrine has been a blight on criminal law since Bartkus v. Illinois, when the Court endorsed this fiction that violated the notion that a person should be tried only once for his alleged offense. If a defendant was acquitted by the state, he could be tried again by the federal government, but it wasn’t Double Jeopardy because they were different “sovereigns,” different governments, both of which were entitled to take offense and exact revenge.

In Gamble, the Supreme Court has an opportunity to eliminate this legal fiction, so one would expect those favoring constitutional rights and criminal law reform to be rooting for a change. Not so fast.

According to a view popular with judges, the federal-state relationship is a brilliant invention of wise Founders who wished to make it harder for government to impede “liberty.” Obstacles to prosecution, some believe, are features of the system. Others, including groups who seek the protection of the federal sovereign from abuse or neglect by local sovereigns, see those obstacles as bugs.

Why lawprof Garrett Epps says this view is “popular with judges” is unclear, since nobody has taken a survey and rulings suggest the opposite. Rather, this reference to impeding “liberty,” rarely a concern in any district court, is a reference to the perceived trend toward libertarian-minded judges appointed by the current administration. It may not be true, but it feels true.

So who would oppose a robust prohibition on Double Jeopardy, and see it as a “bug”?

In its brief, the Thurgood Marshall Civil Rights Center at Howard University School of Law reminds the Court that a change in the “separate sovereigns” rule, if not carefully managed, might end up making federal civil-rights statutes difficult, or even impossible, to enforce.

The concern here is that a failed state prosecution for a crime might impair a second federal prosecution for the criminal violation of civil rights laws. Think Sgt. Stacey Koon, who was acquitted of state charges for beating Rodney King, then convicted in federal court for violating his civil rights.

The National Indigenous Women’s Resource Center is on the same side. In a brief, its lawyers argue that a wholesale rejection of the “separate sovereigns” rule would roll back a hard-won victory in the fight against domestic violence and sexual abuse in Indian country.

The concern here is that Tribal Courts are limited to an inadequately severe sentence of three years for non-tribe members, so they want the feds to convict a second time and impose a harsher sentence on top of the tribal court sentence.

This gives rise to a bipolar view of dual sovereignty, where the progressive view is that it’s terrible for certain defendants and wonderful for others, based on which defendants, which offenses, are involved. Epps tries to thread the needle.

Unless the Court goes much further than most people imagine, a victory for Gamble will not completely bar dual prosecutions for the same criminal activity, but only for the same specific crime. Federal courts have already evolved what’s called the Blockburger rule to determine when two prosecutions are for the same “offense.”

In other words, the same criminal conduct may give rise to violations of separate statutes with different elements, and rather than preclude jeopardy based on the conduct, Blockburger only precludes double jeopardy for the exact same statutory offense. For example, a defendant may be acquitted for murder in state court, but then retried, convicted, for a hate crime murder in federal court. He will be put in jeopardy for the exact same conduct, but twice put in jeopardy because the federal offense is a hate crime rather than a “simple” murder.

While many states bar, under their own Constitution and caselaw, a state prosecution following a federal prosecution based upon the conduct rather than the statute, the feds do not. This has raised a peculiar concern that Gamble will serve to allow Trump to pardon targets of the Mueller investigation.

Before he was forced to resign in sex disgrace, former New York Attorney General Eric Schneiderman sought to have the Double Jeopardy “loophole” closed so the state could prosecute Trump cronies in the event they were pardoned. What was once a travesty of justice morphed into a loophole after Trump took office.

The weird twist of fate that compels otherwise putative reformers like Epps to do backflips to condemn Double Jeopardy in some cases while supporting it in others, and relying on the unprincipled Blockburger test to thread the needle, reflects the inherent conflict in social justice reformers. If the principle mattered, then they would support the constitutional prohibition on Double Jeopardy for all, and not hide behind Blockburger to circumvent the fact that a person is being put in jeopardy for the same conduct, only under different names, twice.

But when the view is that you want some people convicted and others not, based on their favored-identity status or the heinousness of their offense, then cases like Gamble present a conundrum, as grand efforts are exerted to rationalize one’s way between facially inconsistent rules. It’s not that the woke are in favor of Double Jeopardy, per se, but that they want it to be there for a second chance to convict when the person they hate might get away with a crime they hate.

6 thoughts on “The Second Prosecution Gamble

  1. REvers

    We should do away with it for everyone except politicians and associates of politicians. Why should those people have more rights than any other animal?

  2. Christenson

    Hypo case:
    Someone commits a heinous murder and leaves behind no reasonable doubt about the murder or its socially unacceptable (racist/misogynist/homophobic etc) motivation. The state prosecuting attorney would have done the crime himself if he thought he could have gotten away with it, but public pressure forces him into a half-hearted prosecution that leads to an innocent verdict from a jury. Is there a principled way to bring the killer to legal justice without violating double jeapordy, or is this one of those uncomfortable situations where a guilty criminal goes scot-free? Assume the process leading up to the verdict is not itself a punishment.

    I think the inability to deal with this conundrum of real criminals who are accused going free sometimes is at the heart of the Title IX due process debacle.

    1. SHG Post author

      There always have been, and always will be, cases that fall through the cracks of the law. Is there a principled way to deal with them? The question is whether we, as a society, would prefer Type 1 or 2 errors as a default. When the system fails, is it better that the innocent are convicted or the guilty go free?

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