In 2015, a police officer in Mobile, Alabama pulled Terance Martez Gamble over for a broken tail light on his car. During the stop, the officer discovered both a gun and marijuana paraphernalia in Gamble’s car. Gamble, who had been convicted of second-degree felony robbery seven years earlier, was barred from owning a firearm. The state of Alabama prosecuted Gamble for illegal possession of a firearm, and he served one year in prison. Subsequently, the federal government also charged Gamble with illegal possession of a firearm in relation to the same 2015 incident.

Gamble asked the U.S. District Court to dismiss his federal indictment on the ground that it violated his Fifth Amendment protection from Double Jeopardy. The District Court ruled that the dual-sovereignty exception to the Double Jeopardy Clause, which permits a second prosecution for the same offense by a different “sovereign,” permitted the federal case to proceed. Gamble appealed to the U.S. Court of Appeals for the Eleventh Circuit, and that court affirmed the lower court’s decision. Gamble, who is now serving time in federal prison, asked the Supreme Court to reconsider its past decisions allowing successive prosecutions for the same offense by different sovereigns (i.e., the “dual-sovereignty doctrine”).  CAC, along with the Cato Institute, filed a friend-of-the-court brief in support of Gamble, urging the Supreme Court to grant review, and the Court agreed to hear Gamble’s case.

CAC, the Cato Institute, the American Civil Liberties Union, and the American Civil Liberties Union of Alabama filed a friend-of-the-court brief on the merits of the case, asking the Supreme Court to overrule the dual-sovereignty exception to the Double Jeopardy Clause.  As we explain, that exception is inconsistent with the text, history, and purpose of the Double Jeopardy Clause, as well as our constitutional structure more broadly.  The Framers viewed the Double Jeopardy Clause as a fundamental protection of individual liberty and an important safeguard against government harassment and overreach.  The dual-sovereignty exception, by allowing two governments to do together what neither could do alone, undermines the fundamental protection of individual liberty that the Double Jeopardy Clause was adopted to achieve.

Moreover, as we also explain, two changes in the legal backdrop further support elimination of the dual-sovereignty exception.  First, the dual-sovereignty exception was first adopted against the backdrop of a legal regime in which the Double Jeopardy Clause did not apply to the states. Whatever validity the doctrine may have had then, it has been completely undermined by subsequent decisions of the Supreme Court that recognize that the Fourteenth Amendment protects against state infringement the personal rights guaranteed by the Bill of Rights, including the Double Jeopardy Clause.  Second, concerns about government overreach and harassment are particularly acute today because the scope of federal criminal law is far more expansive than it was when the dual-sovereignty exception was last considered, and there is now also significant federal-state cooperation in criminal law enforcement.

In a 7-2 decision, the Supreme Court upheld the dual-sovereignty doctrine, concluding that the Double Jeopardy Clause protects individuals from being punished twice “for the same offence,” and if an individual is tried by two sovereigns, those are two separate offences.  Justice Ginsburg dissented, noting (among other things) that “the liberty-denying potential of successive prosecutions, when Federal and State Governments prosecute in tandem, is the same as it is when either prosecutes twice.”  Justice Gorsuch also dissented, concluding that the dual-sovereignty exception “finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history.”