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June 17, 2019

Via lengthy opinions, SCOTUS preserves "dual sovereignty" doctrine in Gamble

Unsurprisingly, the Supreme Court has decided not to overturn its longstanding "dual sovereignty" doctrine in the case of Gamble v. US, No. 17-646 (S. Ct. June 17, 2019) (available here). Here is how the Court's majority opinion, authored by Justice Alito, gets started:

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.

Notably, Justice Thomas pens an extended concurrence in Gamble, but does so "to address the proper role of the doctrine of stare decisis." Thereafter, Justice Ginsburg authors a lengthy dissent, and Justice Gorsuch authors an even longer dissent. I hope to have more to say about all these opinions in the days to come, but the close of Justice Gorsuch's dissent seem immediately blogworthy:

Enforcing the Constitution always bears its costs. But when the people adopted the Constitution and its Bill of Rights, they thought the liberties promised there worth the costs. It is not for this Court to reassess this judgment to make the prosecutor’s job easier. Nor is there any doubt that the benefits the framers saw in prohibiting double prosecutions remain real, and maybe more vital than ever, today. When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is “the poor and the weak,” and the unpopular and controversial, who suffer first — and there is nothing to stop them from being the last. The separate sovereigns exception was wrong when it was invented, and it remains wrong today.

June 17, 2019 at 10:17 AM | Permalink


While the true vote in this case is 6-3 the problem is that I can't imagine them being able to pick up two more votes any time in my lifetime. It is disappointing to me that both Kagan and Sotomayor are in the majority here. Alito, Roberts, Breyer...those guys I expected. But only one of the majority, Breyer, is anywhere near retirement age.

Posted by: Daniel | Jun 17, 2019 4:26:46 PM

Doug, your selection of the last paragraph in Justice Gorsuch's dissent as being particularly noteworthy is spot on. I would tighten the lens to select one sentence from that paragraph. "When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is the 'poor and the weak' and the unpopular and controversial, who suffer first--and there is nothing to stop them from being the last."

I believe there must be an unspoken competition among prosecutors to see who can come up with the most number of "crimes" to try some poor bloke for, all at the same time, when those so-called "separate crimes" are at their core the same act. Like separate punishments for Attempted Murder and Assault with Intent to Kill, when the assault is the "overt act" element of the Attempted Murder.

Or, Sexual Activity by a Parent and Sexual Offense, when the offense is what the parent is accused of doing. Or separate punishment for Exploitation of an Elderly Person and Obtaining Property by False Pretense, when the exploitation consisted of taking property from an elderly person by fraud and trickery.

I think there can be "multiple prosecutions" that take place all at the same time. Or "successive prosecutions" that can take place in a single trial. First the jury decides if the def is guilty of Attempted Murder, and then the jury addresses the next verdict sheet which consists of an allegation of Assault with Intent to Kill, which describes the way in which the Attempted Murder was attempted.

The elastic nature of modern day double jeopardy doctrine is, in my opinion, a world run amok.

best regards as always,


Posted by: bruce cunningham | Jun 17, 2019 11:23:03 PM

I pose this question re Gamble in light of Rehaif.

On the one hand, the Rehaif court dismisses the application of the 922[g] scienter requirement to its "jurisdictional element" [the CC clause violation] to "...simply ensure that the Federal Government has the constitutional authority to regulate the defendant’s conduct....". Gamble, on the other hand, operates to preserve the standing of state and federal j'dictions to prosecute the same conduct.

It seems to me there's an incoherence in Gamble now Rehaif is etched into the jurisprudence. Specifically, Rehaif must be read to disabuse us of the idea that a citizen can conduct himself in a way to limit his vulnerability to prosecution by one sovereign. That is, if she isn't required to know - in addition to whatever else Rehaif requires she must know - that possessing a particular firearm invokes the prospect of a federal prosecution as well as a state one, she is destined to suffer the same kind of detriment as she does by failing to know her immigration status. Indeed, a greater detriment inasmuch as the prison-time consequences of a second-sovereign-prosecution for UPF almost certainly exceed the prison-time consequences of her ignorance of her immigration status alone.

In short, does Gamble render the Rehaif exclusion of j'dictional requirement scienter vulnerable?

Posted by: Donald | Jun 25, 2019 10:22:35 AM

I am a Dallas defense attorney. Thank you for your work.

Posted by: Donald | Jun 25, 2019 10:23:15 AM

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