While doing some research, I came across the oral argument for a supreme Court case called Gamble v. United States. It asked the question: If someone is prosecuted for the same crime in both state and federal courts, does that violate the Fifth Amendment’s protection against double jeopardy? While reading the opinion, I went through several different phases of my understanding of double jeopardy and how it should apply to this case.
Double Jeopardy and Separate Sovereigns
First, let’s make sure we all understand what double jeopardy is, and why our protection against it was included in the Bill of Rights.
[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb;
Everyone I’ve read or talked to about this seems to agree that this phrase in the Constitution is meant to protect us from a government official repeatedly prosecuting someone until they get the decision they want. When your trial begins, either by the swearing in of a jury or the first witness, “jeopardy attaches”, which means you are now in jeopardy of punishment. Whatever the decision of that trial, no one in the government can try you again, or put you in jeopardy, for that offense a second time. This does not mean the defendant cannot appeal the decision, only that the government doesn’t get to try it again.
The question that arose in the Gamble case is what is referred to as the “separate sovereigns” exception to the Fifth Amendments
Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
The “separate sovereigns” doctrine basically is the idea that there is an exception to the Fifth Amendment’s protection against double jeopardy if the entities prosecuting are from different sovereign governments.
Under this doctrine, the prohibition on double jeopardy does not prevent dual prosecution when the prosecutions are each by separate sovereigns. Thus, a criminal defendant can be prosecuted by a state court and then by a federal court (or the other way around). A criminal defendant may be tried by two separate state courts.
My first thought was this must be wrong. If a person is prosecuted for a crime by the state, then prosecuted again for the same act by the feds, seems to be an obvious violation of double jeopardy. Here at The Constitution Study we rely on original documents, so I immediately went to the Constitution and read the Fifth Amendment’s double jeopardy language. It was there that I noticed double jeopardy involved prosecutions for the same offense. So I guess it matters what qualifies as an offense?
OFFENSE: Any transgression of law, divine or human; a crime; sin; act of wickedness or omission of duty.
So, if an offense is a transgression of a law, then a single act could violate multiple laws, all of which could be prosecuted. If a single act violated both state and federal laws though, wouldn’t they be separate offenses? And if they are separate offenses, then that would not violate the double jeopardy clause.
Gamble v. United States
I started reading the transcript of the oral arguments in this case. Terance Martez Gamble is a convicted felon who was prosecuted and sentenced by the State of Alabama for being a felon in possession of a firearm. Mr. Gamble was subsequently prosecuted by the United States District Court for the Southern District of Alabama for the federal crime of possession of a firearm by a convicted felon. Mr. Gamble then appealed to the Court of Appeals for the 11th Circuit, then to the supreme Court, claiming his federal conviction was a violation of his rights against double jeopardy. While I thought the tactic used by the lawyer for Mr. Gamble, a Mr. Chaiten, was pretty weak, it did start raising some interesting questions for me. In fact, it raised the constitutional question of separate sovereigns vs. overlapping sovereigns.
The Second Amendment Question
First, let’s deal with the question I expect many people to have already asked: What about the Second Amendment? Doesn’t this law infringe on Mr. Gamble’s protected right to keep and bear arms? While I am focusing on the double jeopardy question, we should probably clear the air before we go any further.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Since this restriction against possessing firearms was imposed by law rather than as part of the sentence for a crime, this may in fact be a violation of Mr. Gamble’s rights protected by the Second Amendment. It could be argued that the law established a de facto sentence prohibiting the possession of firearms as part of Mr. Gamble’s conviction, as long as the law was in place before Mr. Gamble’s felony conviction. Assuming that conviction was handled via due process, this would be a liberty that has been taken from him legally, according to the Fifth Amendment.
nor be deprived of life, liberty, or property, without due process of law;
That said, the question of whether this establishes a sentence, or even is a violation of Mr. Gamble’s rights protected by the Eighth Amendment, is a discussion for another time.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Separate vs. Overlapping Sovereigns
The situation Mr. Gamble finds himself in isn’t so much a question of separate sovereigns, but overlapping ones. By this I mean we have two different entities: The State of Alabama and the United States government, both claiming sovereignty over the regulation of the possession of firearms by those who have been convicted of a certain level of crime.
JUSTICE KAGAN: …
You know, that’s consistent with our structure of government. We have dual sovereigns. That means dual regulation. And dual regulation often means dual punishment.
And if we were to adopt the rule that you suggest, it might very well be that either the federal government would have to subordinate its interests to the states or that the states would have to subordinate their interests to the federal government.
And one of the things about our constitutional structure makes — which makes it unusual is that — is that both sovereigns are understood to have significant interests that they have the capacity to pursue.
That may be consistent with the way the nation is run today, but is that the system that was adopted by the states when they ratified the Constitution? In other words, is it legal?
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So if a power is not specifically delegated to the United States, what we now call the federal government, then it is reserved either to the states or the people. This amendment reinforces not only the idea that we have separate sovereigns, but that their sovereignties do not overlap.
MR. CHAITEN: …
if the federal government has made a considered decision that there’s some substantial federal interest here, they can write — they can define the crime in a way that’s probably going to be different than — than — than crimes that states prosecute which are local crimes.
Our republic was not designed so the federal government gets to decide what is in their interest and what isn’t. The states, through the Constitution, decide what is a federal interest and what isn’t. Going back all the way to 1802 and the supreme Court case Marbury v. Madison we read that the Constitution is superior to any act of Congress:
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
While the case asks the court to change its mind on their separate sovereigns doctrine, what we really have here is an example of an out of control government. We have Congress passing laws they are expressly forbidden from enacting, while a judiciary gives them precedence over and above the Constitution. We see the very foundations of our constitutional republic shattered, and we see one of the branches of government charged with upholding the Constitution straining the gnat of dual sovereignty while swallowing the camel of legislative overreach and subversion of the Constitution.
While I’m sure there may be exceptions I have not thought of, I believe the separate sovereigns doctrine is flawed. Not because it violates a person’s double jeopardy protections, but because it ignores the separate spheres of sovereignty the Constitution establishes. There is no constitutional authority for the United States to have a law regarding who can possess firearms or the sentencing requirements for state laws. No such power was delegated to them in the Constitution, so any law Congress may have passed is repugnant to the Constitution and therefore void. If the court actually followed the Constitution, they would recognize this flaw and throw out Mr. Gamble’s federal conviction.
