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SCOTUS leaves dual-sovereignty doctrine intact

Terance Martez Gamble v. United States, USSC No. 17-646, 2019 WL 2493923, June 17, 2019, affirming United States v. Gamble, 694 Fed. Appx. 750 (11th Cir. 2017); Scotusblog page (includes links to briefs and commentary)

Gamble challenged the validity of the “dual-sovereignty” doctrine, which holds that it doesn’t violate the Fifth Amendment’s Double Jeopardy Clause to convict a person in both state and federal court for the same crime. By a 7-2 vote, the Court rejects his challenge.

We consider in this case whether to overrule a longstanding interpretation of the Double Jeopardy Clause of the Fifth Amendment. That Clause provides that no person may be “twice put in jeopardy” “for the same offence.” Our double jeopardy case law is complex, but at its core, the Clause means that those acquitted or convicted of a particular “offence” cannot be tried a second time for the same “offence.” But what does the Clause mean by an “offence”?

We have long held that a crime under one sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign. Under this “dual-sovereignty” doctrine, 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.

Or the reverse may happen, as it did here. Terance Gamble, convicted by Alabama for possessing a firearm as a felon, now faces prosecution by the United States under its own felon-in-possession law. Attacking this second prosecution on double jeopardy grounds, Gamble asks us to overrule the dual-sovereignty doctrine. He contends that it departs from the founding-era understanding of the right enshrined by the Double Jeopardy Clause. But the historical evidence assembled by Gamble is feeble; pointing the other way are the Clause’s text, other historical evidence, and 170 years of precedent. Today we affirm that precedent, and with it the decision below. (Slip op. 1-2).

Between the majority opinion, a concurrence (Thomas), and two separate dissents (Ginsburg and Gorsuch), this is a long (88 page) decision. But it’s interesting reading, as the separate writings cover a lot of ground—the Double Jeopardy issue itself, of course; but also the tenet that the people are sovereign, though the Constitution “split the atom of sovereignty” between the states and the federal government, Alden v. Maine, 527 U.S. 706, 751 (1999); the oft-contested history of what the law looked like at the time of the founding; and the increasingly important question of when the Supreme Court should be bound by its own precedent. Here’s a quick summary.

The majority opinion (written by Alito) starts with the text of the Fifth Amendment and a narrow reading of the word “offence.” (Slip op. 3-8). It then affirms that while the Constitution recognizes sovereignty rests in the people, it structure recognizes sovereignty may be exercised by the whole—the federal government—or a part—the states. (Slip op. 8-10). The majority rejects the dissenters’ claim that there’s only one sovereign—the people—and can therefore be only one prosecution for an offense. (Ginsburg dissent at 2-7; Gorsuch dissent at 1-9). It then goes into a long, winding excursus regarding the early English and American cases Gamble cited in his attempt to claim the Court’s previous acceptance of dual sovereignty is inconsistent with the original meaning of the Fifth Amendment. (Slip op. 11-28). Gorsuch’s dissent (at 9-18) gives a different view of that history.

The concurrence agrees Gamble hasn’t shown the dual-sovereignty doctrine is wrong, but it is focused on a different matter entirely: the Court’s stare decisis jurisprudence. (Concurrence at 2). The thrust is that the Court’s approach is based on a balancing of factors, and is mainly prudential and policy-oriented; that may be fine for a common law court, but the Supreme Court is not that. It is given a very limited power under the Constitution to apply the law according to its original meaning, and no more. If the Court discovers one of its precedents is a “demonstrably erroneous” expounding of the law’s original meaning–and make no mistake, “there are right and wrong answers to legal questions” (id. at 8)—that precedent must be overruled without regard for any balancing of factors, for it is not law at all. Precedent that is within a “range of permissible interpretations” about which there is “room for honest disagreement” based on “all relevant tools of interpretation” (id. at 12) may be retained and relied on without overstepping the limits the Constitution puts on the judiciary. Expect to see more about stare decisis, maybe in the coming weeks, certainly next Term.

As for state practice, this decision has no discernible impact. As our post on the cert grant noted, the Supreme Court has recognized that states are free to enact statutes that bar subsequent prosecutions for crimes prosecuted by other sovereigns. Wisconsin has done that with § 939.71, which says that “[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 a codification of the test under Blockburger v. United States, 284 U.S. 299 (1932), and 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, which deals with controlled substances offenses, and is broader than § 939.71. 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). Nothing in Gamble affects a state court defendant’s ability to invoke § 939.71 or 961.45.

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