Monday, June 17, 2019

Gamble Thoughts

As previously written here, the Supreme Court issued the Gamble decision upholding the continued use of the dual sovereignty doctrine. So states and the federal government - separate sovereigns - can continue to both prosecute defendants for the same conduct, without facing a double jeopardy problem. As the sovereigns are different, there is no constitutional violation. 

Some thoughts on the decision:

  1. The Court does an exhaustive review of  the history of double jeopardy before reaching its conclusion. 
  2. The "foreign issue" raises a concern. ("If, as Gamble suggests, only one sovereign may prosecute for a single act, no American court—state or federal—could prosecute conduct already tried in a foreign court.")
  3. Stare decisis is an important concept that needs to be adhered to. ("Stare decisis 'promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.' Payne v. Tennessee, 501 U. S. 808, 827 (1991)"); ("Gamble’s historical arguments must overcome numerous 'major decisions of this Court' spanning 170 years.") 
  4.  If you want to change longstanding precedent, you need to have strong support to succeed. ("we have the following (1) not a single reported case in which a foreign acquittal or conviction barred a later prosecution for the same act in either Britain or America; (2) not a single reported decision in which a foreign judgment was held to be binding in a civil case in a court of law; (3) fragmentary and not entirely consistent evidence about a 17th-century case in which a defendant named Hutchinson, having been tried and acquitted for murder someplace in the Iberian Peninsula, is said to have been spared a second trial for this crime on some ground, perhaps out of “merc[y],” not as a matter of right; (4) two cases (one criminal, one in admiralty) in which a party invoked a prior foreign judgment, but the court did not endorse or rest anything on the party’s reliance on that judgment; and (5) two Court of Chancery cases actually holding that foreign judgments were not (or not generally) treated as barring trial at common law. This is the flimsy foundation in case law for Gamble’s argument that when the Fifth Amendment was ratified, it was well understood that a foreign criminal judgment would bar retrial for the same act.”)
  5. Beware of relying on secondary sources. ("Gamble’s argument is based on treatises, but they are not nearly as helpful as he claims. Alone they do not come close to settling the historical question with enough force to meet Gamble’s particular burden under stare decisis.").

Justice Thomas wrote a concurring opinion in which he states - "I write separately to address the proper role of the doctrine of stare decisis. In my view, 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."  But he then finds no showing that the dual sovereignty rule is "incorrect, much less demonstrably erroneous," and thus concurs with the majority. 

There are two dissents - Justices Ginsburg and Gorsuch.  Justice Gorsuch says, "[t]he separate sovereigns exception was wrong when it was invented, and it remains wrong today."

The Court sends a strong message in this decision that the Court is not going to be political in deciding this case. Some may focus on the stare decisis analysis, the italics used in the decision "numerous" and "170 years" as to whether other cases may remain in place, but that all remains to be seen. It also remains to be seen whether state legislatures will put in place restrictions on prosecuting cases already handled by the federal government. Likewise, one has to wonder if Congress will be engaged to step in to formalize the petite policy currently existing in DOJ. But for now, dual sovereignty remains.


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