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June 28, 2018

SCOTUS grants cert to reconsider Double Jeopardy Clause's "dual-sovereignty doctrine"

This lengthy final order list finishing up the current SCOTUS Term includes lots of little items that will be of interest to sentencing fans, and one big item that could be really interesting for criminal law.  That big item is a cert grant in Gamble v. United States, which presents only this question: "Whether the Court should overrule the 'separate sovereigns' exception to the Double Jeopardy Clause." Here is how the Gamble cert petition's introduction starts:

The Fifth Amendment enshrines a promise that “No person shall . . . be twice put in jeopardy” “for the same offence.”  Yet Terance Martez Gamble has been subjected to exactly that: two convictions, and two sentences, for the single offense of being a felon in possession of a firearm.  As a result of the duplicative conviction, he must spend three additional years of his life behind bars.  The Double Jeopardy Clause prohibits that result.

The so-called dual-sovereignty doctrine has been around since the 1950s, but both Justices Ginsburg and Thomas have called for giving it another look in light of changed criminal justice realities. I am very excited SCOTUS is now taking up this issue and I will be the first (but surely not the last) to say I hope SCOTUS is willing to Gamble with abolishing the Double Jeopardy Clause's dual-sovereignty doctrine.

June 28, 2018 at 10:20 AM | Permalink


Doug, thanks for the Gamble update. I am as excited as you, or even more so , to see that there is some interest in Double Jeopardy cases. I have a cert petition in SCOTUS pending, taking a longshot at the issue of a retrial after a mistrial. I believe it is a tautology to say that the inability of the jury to reach a verdict shows a manifest necessity for stopping the trial and allowing a retrial.

,I have six post conviction cases working their way to SCOTUS all involving the very common practice in North Carolina of charging a def with Attempted Murder and Assault with a Deadly Weapon With Intent to Kill, Inflicting Serious Injury, when the assault charge is the "overt act" element of the Attempted Murder. Then, the Def gets consecutive punishment for trying to kill someone and not succeeding (Attempted Murder) and the "separate" offense of trying to kill someone and not succeeding, (Assault with Deadly Weapon with Intent to Kill)

I am also arguing that the Blockburger test is not helpful in deciding the separate offense or not issue in light of the legislature enacting multiple statutes that could cover the same conduct. It will not surprise you to know I am incorporating the Apprendi line into my argument, which is that Brown v Ohio is a much more "functional test" of Double Jeopardy than Blockburger, and Apprendi says, "Our inquiry is not one of form, but effect."


Posted by: bruce cunningham | Jun 28, 2018 10:43:16 AM

First, I certainly agree that a hunt jury should be the end of the case, the test should simply be whether the prosecution was able to prove guilt BRD, a hung jury does not meet that threshold.

I, am, however completely resistant to changes in the dual sovereign doctrine. There are just too many ways to play games if only one can prosecute. Now, I could see litigation over whether various governments are actually 'sovereign enough', I am not sure that indian tribes are. Unlike the states their continued existence is purely Congressional grace.

And while I am sympathetic to Bruce's argument about assault vs. attempted murder I think that too specifically dependent on state law for SCOTUS to provide any useful guidance.

Posted by: Soronel Haetir | Jun 28, 2018 11:42:25 AM

Thanks for the comments Soronel, The basis of my argument on the assault/attempted murder issue is Brown v Ohio, 97 S.Ct. 2221 (1977). "As is invariably true of a greater and lesser included offense, the lesser offense of joyriding requires no proof beyond that which is required for the conviction of the greater auto theft. The greater offense is therefore, by definition, the same offense for purposes of the double jeopardy as any lesser offense included in it. p. 2226

So, if the assault was the "overt act" element of the attempted murder, the proof of attempted murder automatically proves the assault, and the charges occupy a greater/lesser relationship. Which means they are the same offense for Fifth Amendment purposes.


Posted by: bruce cunningham | Jun 28, 2018 12:02:46 PM


My problem with that is there are plenty of ways to attempt to murder someone that don't involve assault. Poison for example. I could well see depending on how the state law is structured that the assault charge requires proving some element that attempted murder does not. That attempted murder merely requires proving state of mind and that the defendant tried to kill another, while assault requires proof of a physical attack.

Posted by: Soronel Haetir | Jun 28, 2018 12:13:58 PM

I like, love even, double jeopardy games if it reduces the role of the feds in criminal prosecution for offenses that overlap state crimes. That has been a long time coming.

Posted by: Fat Bastard | Jun 28, 2018 12:17:26 PM

I feel like the biggest likely impact is hate crime prosecutions, oddly enough. But there are certainly other areas. A change in the dual sovereignty rule will likely create a lot of Blockburger Test litigation to figure out when two prosecutions can happen.

Posted by: Erik M | Jun 28, 2018 1:01:59 PM

If one rereads the original ("modern") cases heath and abate you can see how close the historical record was on the original understanding and the closeness of the votes. More to the point one hand the existence of this exception can certainly lead to government oppression it also prevents the injustice of a racially biased or otherwise corrupt (usually state) prosecution from preventing the fair administration of justice and rule of law.

Posted by: scott tilsen | Jun 28, 2018 1:39:24 PM


Yes, I agree that there are ways to kill someone without a deadly weapon, like starvation or withholding of essential medications. (It is a close call to me if "Poison" is a deadly weapon or not. Could be argued either way)

But, that is the reason I am confining my argument to cases where there was clearly a gun, or a knife. Which is also why I am emphasizing Brown v Ohio, instead of Blockburger. Blockburger is essentially a "facial elements test" rather than the Brown v Ohio test, which relies on the factual context of the charge.

I think another consideration is that Attempted Murder is a Common Law crime and Assault with a Deadly Weapon With Intent to Kill is a statutory crime, passed by the legislature with the intent to address a specific factual situation. It is a matter of statutory construction that specific legislation overrides general statutes. However, if the crime is not a legislatively created crime, then I think the concept of "partial abrogation" comes in. That is, the statutory law abrogates the common law when the statute deals with the "same subject matter" as the common law. If the subject matter is a person trying to kill someone with a deadly weapon, but not succeeding, then I think the common law is abrogated in that context.by the enacted statute of the legislature designed to address the particular scenario of using a deadly weapon to try to kill someone.

As an aside, an assault does not involve proof of a physical attack, that is a battery, not an assault.


Posted by: bruce cunningham | Jun 28, 2018 1:39:37 PM

On interesting sovereignty questions, there is the Wyoming case involving whether a treaty with a tribe creates a defense that preempts a state prosecution. I don't know how having that issue pending at the same time could influence thoughts on sovereignty for double jeopardy purposes.

I am hoping to see an amicus brief from somebody on the dual sovereignty issue focusing on how England and Scotland handled the issue between 1603 (the accession of James VI of Scotland to the English throne as James I) and 1707 (the passage of the Acts of Union eliminating the separate sovereignties of Scotland and England). Of course, given that most offenses back then were capital, it might not have ever arisen.

Posted by: tmm | Jun 28, 2018 2:04:28 PM

on tribal sov and xx jeop see wheeler (important footnote)

Posted by: scott tilsen | Jun 28, 2018 3:44:49 PM

Scott, more of what I was thinking about is a couple of opinions over the last several years from Justice Thomas about whether tribes are really sovereign. Not that he is likely to take the position that states aren't sovereign, but having a case involving tribal rights on the docket (potentially being argued in the same week as the double jeopardy case) could raise some interesting cross-currents.

Posted by: tmm | Jun 28, 2018 4:59:01 PM

I'm no doubt getting far ahead of the Court here, but I'm already wondering if a ruling holding that Double Jeopardy Clause bars successive state and federal prosecutions for the same offense would present an opportunity to pursue habeas relief for those twice convicted for the same offense by the state and feds. It's not uncommon to see defendants charged federally with being a felon in possession of a firearm after already having already served a (typically much shorter) state sentence for the same conduct. Federally, the punishments for being a felon in possession of a firearm are typically much harsher, with a 10-year stat max (or 15 to life if the defendant has 3 ACCA priors), so I would imagine there are a decent number of defendants still in federal custody twice convicted for this offense alone.

Any ruling that the Clause bars successive state and federal prosecutions would obviously be a "new rule," which poses Teague problems. The "watershed rule of criminal procedure" exception to Teague is almost always a total nonstarter, but this does seem like a huge change (arguably bigger than Crawford?).

The easier path around Teague would be to characterize any new rule as "substantive," and I think Montgomery gives some support to this claim, when it states, "Substantive rules, then, set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State’s power to impose." Montgomery also suggests that the defining characteristic of a procedural rule is that it concerns the manner of determining the accuracy of the conviction. Obviously, a prohibition against successive prosecutions by separate sovereigns would have nothing at all to do with the accuracy of, say, whether a particular felon possessed a firearm; rather, such a rule would seem to be more of a categorical constitutional guarantee that places a certain class of defendants (i.e., those already punished for a particular crime by one sovereign) beyond the state's power to punish again.

Procedural default seems like it would be less of a hurdle, since a habeas petitioner can establish "cause" for the default under Reed v. Ross when the SCOTUS expressly overrules its prior precedent (and establishing "prejudice" seems obvious).

Are there any other obvious habeas hurdles I'm not thinking of?

Posted by: Anon AFPD | Jun 28, 2018 6:13:21 PM

to tmm..a part of the dual sovereign question is as you note the true "dual" and "sovereign" nature of the cases. There are other examples. The working "hand in hand" or cooperating to take an unfair advantage issue mentioned in Heath ,I think. There are other exceptions that could be carved out. For example SORNA creates an almost inseparable federal/state intertwining of sex offender rules and enforcement. In some places and at some times there is no real division between local, state, and federal law enforcement in some areas, say drugs. Should this matter?

Posted by: scott tilsen | Jun 29, 2018 8:36:56 AM

The police in the Rodney King case were found not guilty of assault or of excessive force in state court. Because the lawyer profession caters to criminals and to rioters, they were charged in federal court for the same acts, for a violation of civil rights. The judge showed awareness of the Double Jeopardy Clause, but glossed over it. He said the last 6 blows of 56 blows and the use of a taser violated federal law. This judge knew he was wrong because of the stupid mitigations he came up with. The Ninth Circuit threw out his mitigations and deviation from guidelines and lengthened the sentences.

The Clause is in plain English, with the phrase, same offence. "or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. . . .".There is an actus reus, to which the Clause refers.

There is a mental state. Assault has an intent to injure. The federal charge implied an intent to discriminate. That is an additional problem with the stupid mind reading from the Medieval catechism. To their credit, the Church believed, in accordance with their faith, God would judge the mens rea of the actus reus, his being all knowing. This procedure would apply to the soul, not to the body, as sentencing does. Not even the Medieval Church believed man could read mints, you morons. Mens rea permitted a violation of the Double Jeopardy Clause.

I think this 4 minute educational video should be shown to all minority high schools yearly. It will spare us all a lot of grief.


Posted by: David Behar | Jun 29, 2018 11:51:11 AM

Excellent/interesting points, Anon AFPD, which I will seek to elevate to a new post in the coming days.

Posted by: Doug B | Jun 29, 2018 1:52:39 PM

Thanks Doug. I look forward to hearing your thoughts. Those were just some tentative thoughts of mine, mostly informed by having litigated a bunch of Johnson 2255 motions!

Posted by: Anon AFPD | Jun 29, 2018 6:13:49 PM

Anon AFPD, I think that it would be a retroactive decision because it would have the effect of restricting the power of the sovereign to prosecute in the first instance. You effectively note same in your comment with reference to Montgomery. This would clearly be a substantive rule in my mind that is retroactively applicable to cases on collateral review. I guess the bigger question will be whether SCOTUS will agree to take up a second case within a year of announcing the decision so persons who have already filed a 2255 can satisfy the requirements of 2255(h)(2). They did in Welch. This would be another good case for same as well.

Posted by: Brandon Sample | Jun 30, 2018 6:12:43 PM

I always felt that the dual sovereignty exception was, from a logical point of view, BS.

This is based on the plain text of the Constitution -- "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." It doesn't say "twice by the same Authority" or anything like that. Once by a State and once by the Feds is twice.

That said, its practical application has never bothered me. In practice, it seems to be used in horrific cases, for people who, on a gut level, to me, appear to deserve it. If a State prosecution is BS, and fails, the Feds in practice don't seem to take it up; the reverse also holds.

Posted by: William Jockusch | Jun 30, 2018 9:35:22 PM

Same offense is also an issue. While there are some circumstances in which the state offense and the federal offense seem to be close mirrors of each other, there are other circumstances in the state and federal offenses are "different" under the Blockburger test.

In the Rodney King case, one of the state charges was an excessive use of force by police officers charge that might qualify as a lesser-included offense under the federal civil rights statute. In other states, however, without such a statute, the officers would probably only be charged with assault which might not qualify as a lesser-included offense of the federal civil rights statute. Admittedly, it would be the same conduct, but the U.S. Supreme Court -- in same sovereign cases -- tends to use a same elements test, not a same conduct test. So getting rid of the dual sovereign exception might not have a lot of real world impact.

Posted by: tmm | Jul 2, 2018 10:43:47 AM


I suspect a lot of the "same offense" litigation will focus on what exactly counts as a lesser or greater included offense under Brown v. Ohio.

But the felon-in-possession cases alone are a pretty common dual prosecution situation (and unsurprisingly is the charge at issue in Gamble itself). Technically, a federal felon in possession charge would be a greater included offense of state felon in possession statues, which lack the interstate-commerce element.

Another area where this could get interesting is in Indian country, where dual tribal and federal prosecutions are common. Under US v. Lara, Indian tribes are currently considered separate sovereigns (like states) for double jeopardy purposes. The Indian Civil Rights Act limited the maximum punishments tribal courts can impose, but many violent crimes were still prosecuted in tribal court first, with a federal prosecution following under the Major Crimes Act, which gives federal courts jurisdiction over certain very serious crimes committed by Indians in Indian country. And there typically aren't significant differences between the elements of tribal murder, manslaughter, rape, burglary, etc. statutes and federal ones. These could definitely make for interesting 2255 motions challenging the subsequent federal prosecutions if the SCOTUS reverses in Gamble. Though I don't envy anyone who has to try to track down tribal court records, which can be a nightmare.

Posted by: Anon AFPD | Jul 3, 2018 11:38:57 PM

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