The Constitution, Law, Rationalizations And Ethics—One Of These Things Is Not Like The Other, II: Double Jeopardy Get A SCOTUS Pass

The first time I recall being made aware that a state and the U.S. could both charge a citizen based on the same act was during the Rodney King Ethics Train Wreck, when after the jury acquitted the LA cops involved and the riots ensued, the Justice Department charged them with violating King’s civil rights. They were convicted, and sent to prison. That sure seemed like double jeopardy to me [See: the Fifth Amendment to the United States Constitution, which provides in part: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb….]  and I wondered why the Supreme Court allowed it.

Why has remained a good question, but when is clear: in 1876, the Court ruled in United States v. Cruikshank that the government of the United States is a separate sovereign from any State:

This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.

Thus the bizarre construct known as the dual sovereignty rule was born. It means that double jeopardy doesn’t apply when a state and the nation try the same individual for the same criminal act. It seems unfair, because it is unfair. It is, however, old.

Thus it was that yesterday, given the perfect opportunity to over-rule this inherently unethical exception to the common law principle that predated the existence of any U.S. state, the current Supreme Court whiffed.

In Gamble v. United States,  7-2 decision majority ruled against Terance Gamble, who  charged and sentenced for  being a felon in possession of a firearm by both the federal government and the state of Alabama. Justice  Alito wrote the majority opinion, joined by Chief Justice  Roberts, Justice Thomas, Justice  Breyer, Justice Sotomayor, Justice  Kagan and Justice Kavanaugh. Justices Ruth Bader Ginsburg and Neil M. Gorsuch dissented.

How is this possible? Once again, two words, in Latin: stare decisis. As longtime SCOTUS tradition almost-but-not-quite-always dictates, the Court will not normally overturn a decision of long-standing, even if they might objectively believe the ruling was wrong. The idea is to give U.S. laws stability, and not allow the fluctuations of judicial philosophy on the Court to lead to wholesale overhauls of U.S. law with each new nomination and confirmation.

Gamble, a convicted felon, was pulled over for a broken taillight in November 2015, Police  found marijuana and a handgun in his car, Gamble was convicted under Alabama law of possessing of a firearm  while a felon. During the Alabama prosecution, Gamble was also charged under federal law for the same offense, being a felon in possession of a firearm.  He entered a conditional guilty plea that reserved his right to raise the double jeopardy issue on appeal, and received a four-year sentence. In appealing the federal conviction,  Gamble’s lawyers contended the dual-sovereignty doctrine should be overruled because it departs from founding-era understanding.

Alito brushed the argument aside, writing, “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.”

Shorter version: Stare decisis!

Ginsburg’s dissent points out that the dual sovereigns doctrine ignores a basic tenet of the federal system. “States may be separate, but their populations are part of the people composing the United States,” she said.. Justice  Gorsuch protested  that  the dual sovereigns loop-hole  “finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history.”

Once again, law, for arguably sound procedural and practical reasons,  grinds ethics under its boot.

Supporters of another bad but old decision, Roe v. Wade should be thrilled with the Gamble decision, however.  The 7-2 count appears to signal that stare decisus is alive and well, and has across-the-ideological-spectrum support on the current Court. Interestingly, Clarence Thomas issued a provocative concurring opinion to separate his vote from support of the stare decisis doctrine. Thomas argued that it should not be used to uphold precedents that are “demonstrably erroneous.”

___________________________

Pointer and Source: ABA Journal

23 thoughts on “The Constitution, Law, Rationalizations And Ethics—One Of These Things Is Not Like The Other, II: Double Jeopardy Get A SCOTUS Pass

  1. About the officers in the Rodney King beating and double jeopardy; didn’t the first court case acquit the officers of using excessive force but did not deal with civil rights, then the federal case was all about civil rights? So the officers went to trial regarding the same incident but they really didn’t charge or prosecute the officers on the “same offence”? I think there is a difference but I’m ill equipped to explain it.

      • “This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.”

        The two sovereignties are legally bound by the 5th Amendment to the United States Constitution which is there to protect the individual. This “dual sovereignty rule” is a back door to “legal” abuse of the 5th amendment. I don’t give a damn about the two sovereignties argument, the 5th Amendment should reign supreme here, it is there to protect the individual and if the individual was charged and duly prosecuted under the law for an “offence” then that individual cannot be prosecuted for the “same offence” again.

        I think the Supreme Court was wrong in the Gamble case.

        • There is an even easier dodge that can (and is) used: charge the person with an act that hinges upon the same incident, but shades differently.

          You see, there are so many laws today that EVERYONE could be convicted. I have written about this travesty before, so for brevity will point you to the google machine with the key phrase ‘three laws a day.’

          A quick instance: there is a federal law that states that any agricultural item that is illegal to possess in any country can be prosecuted by the federal government. So, if Honduras makes it illegal to possess a certain plant’s fibers, and a search warrant that yields nothing else finds a straw hat you bought at WalMart, perfectly legally and in ignorance, you can be charged under this law.

          I wish this was made up.

  2. I remember studying Cruikshank back in Con Law class, and it is interesting that the reconstruction era decision that originally barred enforcement of federal law against individuals has been turned around to permit dual prosecutions. It does reek of double jeopardy, bit in my own experience we usually decided to forego state prosecution for felon firearms possession cases because the federal system was so much faster and stiff punishment more likely.

    • “…we usually decided to forego state prosecution for felon firearms possession cases because the federal system was so much faster and stiff punishment more likely.”

      Now there is an approach that I would fully support, there’s no appearance of double jeopardy.

  3. “The citizen cannot complain, because he has voluntarily submitted himself to such a form of government.”

    Frankly, I loathe lines line this. It’s the government lying to you in law, and bending reality by decree.

    The fact remains that if offered the choice between citizenship, and sectioning themselves off and living divorced from the rights, protections, and amenities afforded to citizens, the average American would almost certainly choose to submit themselves to government. But that choice does not exist. Citizens do not “voluntarily submit” to anything, they are born into it and they are presumed to have given such submission because alternatives do not exist. The courts have never wavered on the idea that silence is not consent, see all the actions against Publisher’s Clearing House for reference, except when it comes to themselves.

  4. I was very sad to see this result, and I think your analysis is spot on.

    Generally, I favor stare decisis, but this is one case that looks to run afoul of the Fifth Amendment and Due Process clause on its face. Say, for example a person is convicted by the federal courts for a count of bank fraud to seven years (relevance to current events intentional). Then, the state in which the miscreant had committed his crime tries him again for the identical state crime under dual sovereignty and sentences him for an additional seven years.

    How is justice and the due process of law served by making the man serve two sentences for an identical set of facts? It can’t be due process to add an additional seven years to a sentence neither sovereign considers worth 14 years of imprisonment, even if we are forced to accept the irrational (to me) argument that the Fifth Amendment does not expressly forbid a redundant prosecution?

    Perhaps a Due Process claim would do better than a double jeopardy claim.

  5. Interestingly, Clarence Thomas issued a provocative concurring opinion to separate his vote from support of the stare decisis doctrine. Thomas argued that it should not be used to uphold precedents that are “demonstrably erroneous.”

    Thomas concurred, instead of dissenting, because neither the petitioner nor the dissent “have not shown that the Court’s
    dual-sovereignty doctrine is incorrect, much less demonstrably erroneous,” Gamble v. United States, concurring op. of Thomas, J., at 17

    while not quoted nor cited in the opinion, I believe the principle announced in Brown Shoe Co. v. United States, 370 U.S. 294 (1962), is persuasive. The Court should not disregard the implications of an exercise of judicial authority (in this case, the dual sovereignty doctrine) assumed to be proper for so long. Brown Shoe Co., 370 U.S. at 307. While the longevity of a judicial practice is not dispositive as to its validity, it carries great weight.

  6. Jack wrote:
    “Ginsburg’s dissent points out that the dual sovereigns doctrine ignores a basic tenet of the federal system. “States may be separate, but their populations are part of the people composing the United States,” she said.. Justice Gorsuch protested that the dual sovereigns loop-hole “finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history.””

    Seems to me that in this decision, two separate but presumably equal sovereignties are hypothesized. Excellent groundwork for a state to argue for secession.

  7. It is possible for someone to commit a crime that occurs concurrently over more than one state, e.g. crimes over the internet. Can one now be tried and convicted by two or more states as well as the Federal Government for the one crime thus getting three consecutive sentences?

  8. This puts a different perspective on Gov. Cuomo’s move to authorize the State of New York to prosecute individuals pardoned by the president, well, by President Trump, if we are being accurate. Mind you, the President has unfettered pardon power and can pardon anyone he wants, well, except Pres. Trump. How would this work in light of Gamble? That would mean, necessarily, that any state could still prosecute pardoned persons for state law crimes? How about federal crimes imputed under state law?

    jvb

  9. I think we all already know the problem with the state bringing its prosecutorial might against a citizen more than once on the same accusation, I already was primed to disagree with the SCOTUS ruling here. But, having actually sat down to meditate on this further and discuss with people whose ideas I value, I think my essay here will divert from Double Jeopardy to something I think is more troubling from a Federalist aspect. There is no doubt that the flaw in the established precedent here manifests as Double Jeopardy. But I don’t think Double Jeopardy is the essential problem to be discovered by this case.

    If the idea of Federalism is that the Constitution delineates the powers collected in the national level of government and reserves remaining powers to the states and rights to the citizens, there is a clear demarcation between the nation and the states in terms of the scope of their power.

    Whereas the nation can declare war, the states, excluded from that power CANNOT. Whereas (originally) the States could mandate a State religion, the national level COULD NOT. The Constitution is pretty clear over the concept of powers granted to the nation are not available to the states and vice versa. Obviously over time, the national level of government has, by unopposed precedent gained MORE powers of legislation affecting various and different aspects of the individual citizen’s lives.

    If this process has occurred, rightly OR wrongly (the argument over the commerce clause can come another day…I for one think it has been GROSSLY abused), then the principle of Federalism should still apply. If the nation casts a law about any topic and it is never challenged in the courts as an overreach trampling on the State’s powers (I can’t stand the term “States Rights”…people have Rights, governing entities have Powers)., then in theory, every state law applying to the same aspect of a citizens life should be seen as irrelevant and null. OR There should be a hard fought legal battle about whether or not the newly passed national law is a violation of the 10th Amendment.

    If the national level of government has been shown to be the proper authority to make “drug” laws, then I don’t see how any State can create its own drug laws, on principle, if such laws are now within the realm of the national interest. If the national level of government declares that “assault rifles” are illegal, it seems moot and a violation of Federalism for individual states to simultaneously maintain or pass such laws.

    If I break a law within my State, I should be seen as a felon *in my state*, while the national level of government should render no opinion whatsoever…in a kind of odd way, it seems wile I may be a criminal in the eyes of Texas, the other states and the nation should see me as nothing but a citizen. (Which of course doesn’t absolve the guilty of guilt within the jurisdiction they broke the law).

    So, what off this case, where the man is being accused of being a “felon in possession of a weapon”? To me, it seems that his original felony should determine whether or not he’s violating a state or a national law. If the original felony was a state law, then his possession of a weapon should only be seen as a violation of the additional state prohibition, while the national level of government should be “uninterested”. If the original felony was against the nation, then his possession of a weapon should only be of interest to the nation and not the state.

    BUT, if he is a prior felon in terms of a state law and a completely separate federal law, and he’s now been found in possession of a firearm (which violates both the state and federal law), I’m not sure there’s a double jeopardy case here. But I do think it reveals a clear problem with allowing both the individual States and the national level of government pass laws that affect the same realms of individual citizen’s lives – not because of Double Jeopardy (which though is a clear problem) but because of a violation of the philosophy of Federalism.

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