High Court Affirms Separate Sovereigns Doctrine

Steven D. Schwinn, John Marshall Law School

The Supreme Court today upheld the "separate sovereigns" doctrine that permits, consistent with double jeopardy, the prosecution of the same person for the same criminal act under state and federal law.

The ruling means that both a state government and the federal government can prosecute the same person for the same crime without running afoul of the Fifth Amendment's prohibition on double jeopardy.

It also means that those subject to federal prosecution in the Mueller investigation can be prosecuted under state law. That's significant, because President Trump can't pardon someone for a violation of state law.

The ruling, Gamble v. United States, grew out of a federal felony-in-possession charge against Terance Gamble after he had been convicted of felony in possession under Alabama law. Gamble argued that the federal charge violated double jeopardy. The Court disagreed.

Justice Alito wrote for the Court, including Chief Justice Roberts and Justices Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh. Justice Alito made it simple:

We start with the text of the Fifth Amendment. Although the dual-sovereignty rule is often dubbed an "exception" to the double jeopardy right, it is not an exception at all. On the contrary, it follows from the text that defines that right in the first place. "[T]he language of the Clause . . . protects individuals from being twice put in jeopardy 'for the same offence,' not the same conduct or actions," as Justice Scalia wrote in a soon-vindicated dissent. And the term "'[o]ffense was commonly understood in 1791 to mean 'transgression,' that is, 'the Violation or Breaking of a Law.'" As originally understood, then, an "offence" is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two "offences."

The Court rejected Gamble's claim that the dual sovereignty doctrine contradicts the common-law rights that the Double Jeopardy Clause was originally understood to protect:

The English cases are a muddle. Treatises offer spotty support. And early state and federal cases are by turns equivocal and downright harmful to Gamble's position. All told, this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns' laws--much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years.

The Court also rejected his claim that "the Double Jeopardy Clause's incorporation against the states washed away any theoretical foundation for the dual-sovereignty rule," because "the premises of the dual-sovereignty doctrine have survived incorporation intact." "Incorporation meant that the States were now required to abide by this Court's interpretation of the Double Jeopardy Clause. But that interpretation has long included the dual-sovereignty doctrine, and there is no logical reason why incorporation should change it."

Justice Thomas wrote a concurring opinion and argued that "the Court's typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions--meaning decisions outside the realm of permissible interpretation--over the text of the Constitution and other duly enacted federal law." Justice Thomas argued that the Court's strong application of stare decisis to "demonstrably erroneous precedent" means that the Court is making the law, and impermissibly encroaching on the role of Congress in violation of the separation of powers. If there were any doubt, he singled out precedents under substantive due process as examples of "demonstrably erroneous precedent."

Justice Ginsburg dissented, arguing that "[t]he United States and its constituent States, unlike foreign nations, are 'kindred systems,' 'parts of ONE WHOLE'" and that "[w]ithin that 'WHOLE,' the Federal and State Governments should be disabled from accomplishing together 'what neither government [could] do alone--prosecute an ordinary citizen twice for the same offense.'"

Justice Gorsuch also dissented, arguing that "this 'separate sovereigns exception' to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history."