Most people have a basic understanding of double jeopardy. Generally, the double jeopardy clause, which is found in the Fifth Amendment to the U.S. Constitution, states that a person can’t be prosecuted more than once for the same crime.
However, there are several exceptions to the double jeopardy doctrine, and it’s not as straightforward as many people believe. In December 2018, the U.S. Supreme Court heard oral arguments in Gamble v. United States, which set up a challenge to one of the exceptions to the double jeopardy clause. The Supreme Court’s decision in the case will likely have a significant impact on this area of law.
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As stated above, the general rule behind double jeopardy is that the government can’t prosecute you over and over again for the same criminal offense. For example, if a person is acquitted of murder and then goes on television and confesses to committing the crime, the state can’t drag that person back into court and put them on trial all over again.
In fact, something similar to this scenario has happened in recent history. After the infamous O.J. Simpson murder trial in the mid-90s, Simpson released a controversial book in which he described how he would have carried out the murders if he, in fact, had committed the crimes he was accused of at trial.
Under the double jeopardy rule, prosecutors can’t rely on this book to build a new case against Simpson, even if the book contains potentially new information about motives or evidence that could support a new case.
However, a person can be charged with a crime like murder and then also be subject to civil liability in the civil justice system. This happened in Simpson’s case, as he was found liable for wrongful death and ordered to pay compensation to the victims’ families.
Dual Sovereignty
There is another important area to discuss when it comes to double jeopardy. Under the doctrine of dual sovereignty, the state government and the federal government each have a right to prosecute an individual for the same crime. While this may seem like double jeopardy, the individual states are considered their own “sovereigns” under U.S. law. Each state has a right to enforce its own laws, and the federal government has the right to do the same.
Under dual sovereignty, a person charged with a crime may face successive prosecution at the state level and the federal level. In some cases, an individual may be convicted under state law and required to serve time in prison, only to turn around and face another prosecution in federal court for the same crime. When this happens, it can result in an additional prison sentence and other consequences. The dual sovereignty exception to the double jeopardy rule has been in place for over 150 years. However, the Court’s decision in Gamble could change it.
What’s at Stake in the Gamble Case?
In Gamble, the defendant who was convicted of possessing a firearm illegally, argued that his successive convictions in both federal court and state court in Alabama violate the double jeopardy clause.
In 2016, Supreme Court Justice Ruth Bader Ginsburg wrote, “The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same conduct. Current ‘separate sovereigns’ doctrine hardly serves that objective.”
Some experts have interpreted this statement to indicate that the Court will overturn its precedent when it comes to double jeopardy, as Justice Ginsburg’s statement has been echoed by more conservative justices on the Court.
In Gamble, the court also heard from the state of Texas which, according to a report from the Washington Post, “heads a group of 36 states objective to any change in the law.” In a brief filed by the coalition of states, experts stated, “Each state has a strong interest in its sovereign power to prosecute violations of its laws regardless of the prosecutorial decisions of other sovereigns, whether the federal government or other states.”
According to reports, state prosecutors and lawmakers worry that overturning the dual sovereignty exception could make it more difficult for states to enforce their laws. For example, if an individual receives a presidential pardon for a federal conviction, the absence of dual sovereignty could mean that the states would be powerless to pursue their own conviction.
Depending on the nature of the case, the federal government may only pursue its own prosecution if federal prosecutors determine that the case poses a significant national interest. In the Gamble case, the defendant’s lawyers argued that his convictions for possessing a firearm don’t present an issue that merits a national interest. It’s perhaps for this reason that the court may seriously be considering modifying the dual sovereignty exception to the double jeopardy clause.
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Sources:
- https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-646_1bn2.pdf
- https://www.law.cornell.edu/wex/double_jeopardy
- https://www.yalelawjournal.org/note/dual-sovereignty-due-process-and-duplicative-punishment-a-new-solution-to-an-old-problem
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