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Supreme Court Says States and Feds Can Prosecute the Same Crime, Upholding the “Separate Sovereigns” Doctrine

V&E Government Investigations Update, June 19, 2019

The Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” In a recent opinion, Gamble v. United States, the Supreme Court declined to overturn its prior interpretation of the clause under the so-called “separate sovereigns” doctrine.

The case began when Terance Gamble was pulled over for a damaged headlight. The police officer smelled marijuana and subsequently searched Gamble’s car, finding a handgun. Gamble was prosecuted by the state of Alabama for possession of a firearm as a convicted felon and pleaded guilty, serving one year in prison as a result. The federal government later charged him with illegal possession of a firearm for the same incident. Gamble asked the district court to dismiss his federal indictment, arguing that it violated his Fifth Amendment protection from Double Jeopardy. The district court held the separate sovereigns doctrine permitted the federal proceedings. Gamble then pleaded guilty to the federal charge, but reserved his right to appeal the double jeopardy ruling. The Eleventh Circuit, however, agreed with the district court.

In a 7-2 decision, the Supreme Court likewise affirmed Gamble’s federal conviction. Justice Alito, writing for the majority, stated that the “separate sovereigns” doctrine is not an exception to the double jeopardy right, but rather follows the text of the Constitution. The Clause prohibits a person “from being twice put in jeopardy ‘for the same offence,’ not for the same conduct or actions.” The Court explained that “an ‘offence’ is defined by a law, and each law is defined by a sovereign.” Accordingly, “where there are two sovereigns, there are two laws, and two ‘offences.’” Because the federal and state governments are “separate sovereigns,” the Court held, the Double Jeopardy Clause does not apply to prosecution of the same conduct under both federal and state laws.

The Court further explained that this doctrine protects separate sovereigns’ ability to vindicate different interests. For example, Justice Alito pointed to a hypothetical assault on a United States deputy marshal, where the federal sovereign would be harmed by the hindrance in the execution of legal process and the state sovereign would be harmed by breach of peace in the state. Similarly, the Court noted that had it overturned the separate sovereigns doctrine, if a foreign court had already prosecuted a defendant for certain conduct, no American court — state or federal — would be able to prosecute that same conduct.

This ruling echoes the oral argument in the case, where the justices appeared reluctant to overturn the long-standing doctrine. There, Justice Kagan commented that “part of what stare decisis is, is a kind of doctrine of humility where we say we are really uncomfortable throwing over 170-year-old rules that 30 justices have approved.”

Justices Ginsburg and Gorsuch, however, filed separate but overlapping dissents. Justice Ginsburg highlighted that the separate sovereigns doctrine “scarcely shores up people’s rights,” and wrote that the notion that federal and state governments “are separate sovereigns overlooks a basic tenet of our federal system” — that “‘ultimate sovereignty’ resides with the governed.” Similarly, Justice Gorsuch characterized the majority opinion as “a colossal exception to this ancient rule against double jeopardy.” He emphasized that “[w]hen 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.”

While this decision will continue to affect many individuals facing criminal charges, the case was watched closely for its implications to Special Counsel Robert Mueller’s investigation into Russian interference during the 2016 presidential election. Had the Court reached the opposite conclusion, the decision would have prevented state prosecutors from charging defendants in the investigation with the same conduct that federal authorities had pursued, even if those defendants were to receive pardons for the federal offenses.

Visit our website to learn more about V&E’s Government Investigations & White Collar Criminal Defense practice. For more information, please contact Vinson & Elkins lawyers Jennifer Freel or Meghan Natenson.


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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.