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SCOTUS will revisit “separate sovereigns” exception to double jeopardy prohibition

Terance Martez Gamble v. United States, USSC No. 17-646, certiorari granted 6/28/18

Question presented:

Whether the Court should overrule the “separate sovereigns” exception to the Double Jeopardy Clause.

Decision below: United States v. Gamble, 694 Fed Appx 750 (11th Cir. 2017) (unpublished)

USSC Docket

Scotusblog page (including links to briefs and commentary)

The “separate sovereigns” exception to the Double Jeopardy Clause says that successive state and federal prosecutions do not violate the Fifth Amendment’s proscription against double jeopardy. The exception was formally adopted in Bartkus v. Illinois, 359 U.S. 121 (1959), and Abbate v. United States, 359 U.S. 187 (1959), though cases dating back to the 19th century intimated there is no constitutional bar on successive state and federal prosecutions. The reasoning for that conclusion is that the Double Jeopardy Clause didn’t apply to the states and that successive state/federal prosecutions would be rare because there weren’t many federal criminal statutes.

But the world has changed since 1959. The Double Jeopardy Clause has been applied to the states, Benton v. Maryland, 395 U.S. 784 (1969), and there’s been an explosion of federal criminal statutes and far more coordination between federal and state law enforcement authorities. These changes have led to calls for a “fresh examination” of the exception, Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1877 (2016) (Ginsburg, J., concurring [joined by Thomas]). In addition to the alterations in the doctrinal and factual grounds for the exception, the substantive arguments against the exception are that it: has no basis in the text of the Fifth Amendment; is inconsistent with the Clause’s original meaning, which derived from a common law tradition that explicitly extended to prosecutions by separate sovereigns; and is irreconcilable with the Clause’s driving purpose of ensuring finality by protecting individuals from the threat or reality of successive prosecutions.

If the Court agrees with this critique and abolishes the exception, its decision could help offenders like Gamble, a felon found to be in possession of a firearm. He was charged with that offense in state court first, and while that case was pending he was charged in federal court. After he was sentenced to one year in prison on the state offense, he got three years for the federal offense. If the separate sovereign exception is abolished, Gamble (and people like him) can argue his federal prosecution is barred under the Double Jeopardy Clause because the state and federal felon-in-possession charges have the same elements and thus are the “same offense” under Blockburger v. United States, 284 U.S. 299 (1932). The filings regarding certiorari don’t discuss the issue, but it’s not clear whether the state and federal crimes are the same offense because the federal crime has the additional “jurisdictional” element requiring the gun to have been possessed in or affected interstate commerce. Because of the separate sovereign exception, there’s been no litigation (and so no decisions) about whether the jurisdictional element counts when comparing state and federal crimes for purposes of the Blockburger analysis. That will be fleshed out in future cases if the Court abolishes the exception.

So the decision in this case could benefit federal offenders who’ve already been prosecuted in state court. Will it also help defendants facing a successive prosecution in Wisconsin after being convicted in federal court? Probably not.

Our courts have, of course, acknowledged the Court’s adoption of the separate sovereign exception. State v. Petty, 201 Wis. 2d 337, 358-59, 548 N.W.2d 817 (1996). But Bartkus, 359 U.S. at 138-39, recognized that states are free to enact statutes that bar subsequent prosecutions, and Wisconsin has done just that. Under § 939.71 (which pre-dates Bartkus and Abbate), “[i]f an act forms the basis for a crime punishable … under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require.” You’ll recognize this is just a codification of the Blockburger test, which is what a federal defendant will get to apply if the Court abrogates the separate sovereign exception. (It’s been used in at least one case to decide whether a successive state prosecution (for armed robbery) was barred by the defendant’s federal conviction (for bank robbery). State v. Lasky, 2002 WI App 126, 254 Wis. 2d 789, 646 N.W.2d 53.) We also have § 961.45, a specific (and broader) statute dealing with controlled substances offenses. Under that statute successive prosecutions of drug offenses by separate sovereigns are barred when the “conduct” is the same. State v. Hansen, 2001 WI 53, 243 Wis. 2d 328, 627 N.W.2d 195 (because § 961.45 refers to “act” instead of “offense,” it doesn’t codify the Blockburger “same elements” test).

The upshot, then, is that a Wisconsin defendant can already argue a state prosecution is barred because of a previous prosecution by the federal government (or another state), so a decision by the Court abolishing the separate sovereign exception won’t have much impact on Wisconsin state court practice.

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