Law Quarterly

Double Jeopardy

By Kyle Chrismer

Nov
28

In November of 2015 an Alabama motorist named Terance Gamble was pulled over by a police officer for a faulty headlight on his car and, after a search, the officer discovered a firearm in the vehicle. Under Federal and Alabama law it is illegal for a convicted felon to own firearms so Gamble, who was convicted of robbery in 2008, was sentenced to one year in prison for this charge by the state of Alabama. Concurrently with his prosecution by the State of Alabama, the U.S. federal government also charged Gamble with the same offense.(1) This second charge has sparked a highly controversial debate which has now made itself all the way up to the Supreme Court.

Since the ratification of the Bill of Rights in 1791, American citizens have enjoyed protection from government overreach under the Double Jeopardy Clause of the Fifth Amendment which, with exceptions, states that “No person shall…be subject for the same offence to be twice put in jeopardy of life or limb”, broadly meaning that no U.S. citizen can be tried twice for the same crime.(2) In 1875, the Supreme Court upheld in the case United States v. Cruikshank that there is a distinction between federal and state governments, each constituting a separate entity.(3) In 1922, during the early days of the Prohibition, a defendant named Lanza was charged by both the state of Washington and the federal government for the manufacturing and sale of liquor. The Supreme Court held that there is an exception to the Double Jeopardy Clause when a Defendant is charged by two sovereign entities for the same offense if both entities find the offense to be criminal.(4) This exception, commonly referred to as the Dual Sovereignty Doctrine, has been frequently invoked as a surefire way to obtain conviction. For instance, Timothy McVeigh and his collaborators were subjected to both state and federal trials for the 1995 Oklahoma City bombing.(5)

Now this doctrine is up for review in the Supreme Court, with many citizens and political groups decrying the doctrine to be unfair by rendering the protection of the Double Jeopardy Clause virtually ineffectual. Gamble, who is currently serving time in federal prison, has garnered the support of groups such as the ACLU, the Cato Institute, and the Constitutional Accountability Center, as well as powerful political figures such as Senator Orrin Hatch of Utah. Gamble’s supporters argue that the Dual Sovereigns Doctrine to be nothing but a loophole created for narrow political purposes nearly a century ago, and that it is now outdated and unjust to keep in practice, especially since the legality of the doctrine has not been revisited since 1969. In the words of the ACLU, Gamble and his supporters believe “The Double Jeopardy Clause should protect all of us from double jeopardy.”(6)

While the elimination of the doctrine may have huge popular support behind it for valid reasons, there are important implications to its overturning that many have failed to notice. If this doctrine is overturned, as has been mentioned by some political pundits and elected officials, pardons at the state and federal levels would have much more power behind them. For example, as the law currently stands, if Paul Manafort, the President’s former campaign manager who was recently convicted of fraud, received a federal pardon, he would still be vulnerable to prosecution from the state of Virginia, out of the reach of the president’s pardoning powers. If the Dual Sovereigns Doctrine were to be overturned, however, Trump’s pardon of Manafort would see him a free man, safe from state laws under the Double Jeopardy Clause. Moreover, if the Supreme Court overturns the doctrine (which is being orally argued December 5 of 2018) state and federal officials might arbitrarily pardon politically connected individuals who would thereafter enjoy complete immunity from prosecution for their offenses at every level of government. The Supreme Court is now embroiled in a situation of “double jeopardy” itself, because no matter which side they choose, the political implications could be profound and impede our ability to rein in government corruption. Given the recent confirmation of Justice Kavanaugh and the Court’s ideological shift, many will be at the edge of their seats, waiting to discover how this potentially watershed case will be decided.

Citations

1. “Gamble v. United States.” TheUSConstitution.org. Accessed October, 2018. URL: https://www.theusconstitution.org/litigation/gamble-v-united-states/

2. “Double Jeopardy.” Legal Information Institute. Accessed October, 2018. URL: https://www.law.cornell.edu/wex/double_jeopardy

3. “United States v. Cruikshank, 92 U.S. 542 (1875).” Justia.com. Accessed October, 2018. URL: https://supreme.justia.com/cases/federal/us/92/542/

4. “United States v. Lanza, 260 U.S. 377 (1922).” Justia.com. Accessed October, 2018. URL: https://supreme.justia.com/cases/federal/us/260/377/

5/ Livni, Ephrat. “A new Supreme Court case aims to close the huge loophole in US ‘double jeopardy’ law.” Published October 2, 2018. Accessed October, 2018. URL: https://qz.com/1409615/scotus-case-gamble-vs-us-challenges-the-state-sovereign-exception-to-double-jeopardy/

6. “GAMBLE V. UNITED STATES.” ACLU.org. Last modified September 12, 2018. Accessed October, 2018. URL: https://www.aclu.org/cases/gamble-v-united-states

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