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Supreme Court Rules Dual-Sovereignty Stays

By Lisa Soronen  |  June 18, 2019

After oral argument, commentators predicted the Supreme Court wouldn’t overrule the “dual-sovereignty” doctrine.

In a 7-2 decision in Gamble v. United States, it didn’t. The State and Local Legal Center (SLLC) filed an amicus brief arguing for the result in this case. 

The Double Jeopardy Clause provides that no person may be “twice put in jeopardy” “for the same offence.” Per the “dual-sovereignty” doctrine, the Supreme Court has long held that a “crime under one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another sovereign.”

Terance Gamble was prosecuted for and convicted of possession of a firearm by a convicted felon under both Alabama and United States law. He argued the “dual-sovereignty” doctrine should be overturned because founding-era common law forbade successive prosecutions by different sovereigns. Justice Samuel Alito, writing for the majority of the court, disagreed.

Before discussing founding-era common law, Justice Alito turned to the Double Jeopardy Clause text noting it protects jeopardy “for the same offence” not for the same conduct or actions. “[A]n ‘offence’ is defined by a law, and each law is defined by a sovereign.” Alito also noted the Supreme Court has recognized the “dual-sovereignty” doctrine since 1847.

Regarding common law, Alito wasn’t convinced it was in Gamble’s favor. Regardless, stare decisis (let the decision stand) “is another obstacle.” “The English cases are a muddle. Treatises offer spotty support.  And early state and federal cases are by turns equivocal and downright harmful to Gamble’s position. All told, this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns’ laws—much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years.”

Finally, the majority rejected the argument that incorporating the Double Jeopardy Clause against the states “washed away” the “dual-sovereignty” doctrine. Interpretation of the Double Jeopardy Clause “long included the dual-sovereignty doctrine, and there is no logical reason why incorporation should change it.”

Alito’s majority opinion didn’t discuss policy arguments at length, such as the SLLC’s argument that eliminating it would “unfairly impact state and local prosecutors, who would remain politically accountable for law enforcement outcomes, despite being stripped of the ability to address those problems locally.” Similarly, the court was unsympathetic to Gamble’s argument that the expansion of federal law “heightens the risk of successive prosecutions.”

Justices Ruth Bader Ginsburg and Neil Gorsuch dissented separately. Court watchers expected Justice Clarence Thomas to join them as he had joined Ginsburg’s concurring opinion in Puerto Rico v. Sanchez-Valle (2016), which suggested the court do a “fresh examination” of the “dual-sovereignty” doctrine. Instead he wrote a concurring opinion noting that the “historical record does not bear out my initial skepticism of the dual-sovereignty doctrine.”

Gordon D. Todd, Josh Fougere, Spencer Driscoll, and Audry M. Klossner, of Sidley Austin, wrote the SLLC amicus brief which the following organizations joined:  the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association, the National District Attorneys Association, and the National Sheriffs Association.

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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