The Fifth Amendment’s Double Jeopardy Clause protects us against being charged and convicted of the same crime twice. But the Clause’s dual-sovereignty doctrine allows for successive prosecutions if conduct violates the laws of two separate sovereigns (i.e., state law and federal law). This term, in Gamble v. United States, the Supreme Court considered whether to jettison the dual-sovereignty doctrine as contrary to the Double Jeopardy Clause. On Monday, June 17, it declined to do so, a now-familiar decision in the Court’s 170-year-old Double Jeopardy Clause jurisprudence. Here is my review of Gamble v. United States.
When we think of the Fifth Amendment, we think of how it protects us when we are charged with a crime. For example, it ensures we cannot be charged with a capital crime unless a Grand Jury indicts us. It forbids each of us from testifying against our own self in court. It guarantees that we will not be deprived of “life, liberty, or property” without due process. It promises that when the government takes our private property for public use, we will be compensated. And, as relevant to Gamble v. United States, it safeguards us from being “twice put in jeopardy of life or limb” for the “same offence”—otherwise known as the “Double Jeopardy Clause.”
Suppose I murder a U.S. marshal and am indicted under federal law. If acquitted, I know the Double Jeopardy Clause shields me from being charged with the same murder again somewhere down the road. But with any discussion of the Double Jeopardy Clause, there must be a parenthetical: the “dual-sovereignty doctrine” (also called the “separate sovereigns doctrine”). What if that murder violates laws in two different “sovereigns,” i.e., a state law and a federal law? Necessarily, there would be two indictments: (1) killing the marshal, a federal crime; and (2) say, possession of an unlicensed firearm, or breaching the peace, or something of the sort, all of which are state crimes. The dual-sovereignty doctrine says that if I am acquitted of the federal crime, I still may be charged and convicted of the state crimes (and vice versa), even though all the charges stem from one act: my killing of the marshal. This is because an individual state and the United States are two distinct sovereigns with distinct laws. So, my act of killing the marshal violates two distinct laws, hence my act constitutes two distinct “offences” or crimes, hence such a conviction does not infringe the Double Jeopardy Clause.
But does the dual-sovereignty doctrine follow from the text of the Double Jeopardy Clause? Or is it merely a lawyer’s dodge, a technicality-based interpretation of the way in which the Clause is phrased? The Supreme Court has pondered these questions even before the Civil War and did so again this term. On Monday, the Court gave its answer, repeating the refrain it has been singing for over 170 years.
In November 2015, Terance Gamble was pulled over by a Mobile, AL police officer. The officer found a loaded 9-mm handgun in Gamble’s car. Since Gamble previously had been convicted of second-degree robbery, the officer arrested him. Gamble was charged with violating an Alabama state law which provides that no person convicted of a “crime of violence” “shall own a firearm or have one in his or her possession.” Gamble pleaded guilty.
Soon after, however, he was indicted under federal law, 18 U.S.C. §922(g)(1), which provides that no person convicted of “a crime punishable by imprisonment for a term exceeding one year” shall “ship or transport in interstate commerce, or possess in or affecting commerce, any firearm or ammunition.”
Gamble sought to dismiss his federal charge in the district court, arguing that he cannot be indicted under §922(g)(1), for his indictment would be for “the same offence” to which he pleaded guilty in Alabama state court and would therefore subject him to double jeopardy.
The district court denied Gamble’s motion to dismiss, relying on the dual-sovereignty doctrine. On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed, again citing the dual-sovereignty doctrine. Gamble appealed again to the Supreme Court, asking only one question: Should the dual-sovereignty doctrine of the Fifth Amendment’s Double Jeopardy Clause be overruled?
Justice Alito’s Majority Opinion
Justice Samuel Alito, writing for a 7:2 majority, answers “no.” In his view, the dual-sovereignty doctrine (1) follows from the plain text of the Fifth Amendment and (2) is grounded in and has been reaffirmed by more than a dozen cases spanning over a century-and-a-half.
Alito begins his majority opinion by looking at the actual text of the Fifth Amendment. It states, in relevant part, that no person “shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” In Grady v. Corbin (1990), the late Justice Antonin Scalia explained in a soon-vindicated dissent that the language of the Double Jeopardy Clause “protects individuals from being twice put in jeopardy ‘for the same offence,’ not for the same conduct or actions” (emphasis in original). When the Bill of Rights was ratified in 1791, “‘[o]ffence’ was commonly understood . . . to mean ‘transgression,’ that is, ‘the Violation or Breaking of a Law'” (id., quoting Dictionarium Britannicum (Bailey ed. 1730)). Therefore, Alito writes, an “‘offence’ is defined by a law, and each law is defined by a sovereign. So when there are two sovereigns, there are two laws, and two ‘offences.'”
Three early Supreme Court cases support this view, Alito argues. Fox v. Ohio (1847) and United States v. Marigold (1850) were the first two, each addressing “successive prosecutions”—prosecution in one sovereign followed by another prosecution for the same offense in another sovereign—in a positive manner. But Moore v. Illinois in 1852 laid down the standard Alito echoes in Gamble: “Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both.” Besides, Alito writes, in the decades since, the Court has reaffirmed this trio of cases’ holdings no less than eleven times (in 1922, 1926, 1927, 1937, 1943, 1945, 1959, 1977, 1978, 1985, and 2016).
Alito then turns his attention to Gamble’s counterarguments. First, Gamble claims that bevy of cases runs contrary to a common-law right he contends was adopted by the Constitution. That right is simply the opposite of the dual-sovereignty doctrine: At common law, if a person was indicted for a crime for which he had already been acquitted or convicted, he may use the pleas of auterfoitis acquit (former acquittal) or auterfoitis convict (former conviction) to waive the new indictment and any subsequent trial. Alito, however, sees red flags. Even if Gamble is correct, Alito replies, he must clear “[two] hurdle[s]”: stare decisis and the “sovereign-specific original meaning of ‘offence.'” On this point, Alito stresses that stare decisis is so integral to our rule of law that it requires “more than ‘ambiguous historical evidence . . . [to] flatly overrule a number of major decisions of this Court'” (quoting Welch v. Texas Dep’t. of Highways & Public Transp. (1987)). The burden, therefore, is on Gamble.
Gamble first contends that five early common-law cases display an aversion to successive prosecutions. Chief among these is Rex v. Hutchinson in 1677. Hutchinson, an English citizen, was tried by a Portuguese court for a murder in Portugal but was acquitted. Hutchinson apparently was then indicted for the murder in an English court, and Gamble argues the court dismissed the charge on the ground that his acquittal in Portugal barred a successive prosecution. But Gamble’s citation here overlooks one critical problem, Alito responds: The English court’s decision to dismiss the charge is one “for which we have no case report.” In other words, the court never published its decision, so there is no record of whether or not Hutchinson was in fact released on this ground. All we have, Alito writes, is a “report of a decision denying Hutchinson bail”; not a report of his trial or the court’s subsequent decision.
The second case Gamble references, Gage v. Bulkeley in 1744, actually saws off the branch on which Gamble sits. Gage involved a bill in a court of chancery for a bank statement from an account in Paris, for which a French court had also sought review. Lord Chancellor Hardwicke, who presided over the case, affirmed the bill, finding that (1) judgments of foreign courts are nonbinding in English courts and (2) Hutchinson gave “no proof” to the contrary. Thus, in Alito’s mind, Gage is in fact a one-two punch to Gamble’s argument. Gage “squarely rejects the proposition that a litigant in an English court . . . had a right to the benefit of foreign judgment, a right that the Fifth Amendment might have codified” (emphasis in original). And, Alito concludes, it “undermines Gamble’s chief historical example, Hutchinson, by giving a contrary reading of that case.”
Third, Gamble points to Burrows v. Jemino in 1726. There, a party who was sued in an English court sought an injunction on the basis that an earlier judgment of an Italian court barred the suit. Gamble stresses that Lord Chancellor King granted the injunction and cited Hutchinson, explaining that Hutchinson‘s acquittal in what the Chancellor erroneously thought was a Spanish court (recall, it was in fact Portuguese) was “a good bar to any proceedings here.” Alito replies, however, that the Chancellor then distinguished this case from other cases involving successive, foreign prosecutions. While the Chancellor here personally saw the Italian court’s judgment as a bar on the suit in an English court, he admitted “other judges might be of a different opinion.” Therefore, Alito says, Burrows does not at all prove that the common law barred successive prosecutions in foreign courts, as Gamble submits; rather, Burrows proves only that a singular English judge was open to the idea.
Gamble next directs his attention to King v. Roche in 1775. Roche was a criminal case in which the defendant pleaded (1) auterfoitis acquit abroad and (2) not guilty. But the only determination of the Roche court was that, “as a procedural matter,” it made no sense for the jury to consider both pleas, for a successful finding of the first necessarily bars any consideration of the second. In addition, before the Roche court could rule on the merits of the defendant’s pleas, the prosecution withdrew the plea offers and proceeded to a full trial, in which the defendant declined to challenge his conviction under auterfoitis acquit. Plus, Alito writes, Roche never mentions Hutchinson, let alone “tacitly affirm[s] its supposed holding” as Gamble maintains.
Finally, Alito sees Gamble’s fifth case, Rex v. Thomas in 1664, as irrelevant to Gamble’s argument. In Thomas, the defendant was charged with murder in an English court, and he pleaded auterfoitis acquit from a case in a court in Wales. But in 1664, Wales was part of the kingdom of England and subject to English laws only. Thus, Alito replies, Thomas “[does] not even involve a foreign prosecution” and contains nothing that supports Gamble.
All told, the five cases Gamble cites provide a “flimsy foundation” for the contention that the Fifth Amendment was understood in 1791 to bar successive, foreign prosecutions. In 1959, in Bartkus v. Illinois, the Supreme Court stressed that the “probative value” of pre-Fifth Amendment cases was “dubious” as a result of “confused and inadequate reporting.” So too here in Gamble. In Alito’s words: “Our assessment was accurate then, and the passing years have not made those early cases any clearer or more valuable.”
With Gamble’s principal argument now cast aside, Alito turns to Gamble’s backup points: that successive prosecutions should be barred based on (1) five treatises on constitutional law, (2) a number of nineteenth-century state court cases, and (3) two (supposedly) contradictory Supreme Court cases in 1820.
Alito starts with the constitutional law treatises. Recall the Court has just rejected the idea that the common law explicitly barred successive, foreign prosecutions. But not to worry, says Gamble: The drafters of the Bill of Rights “thought” the common law supported this view and then engrafted those thoughts into the Fifth Amendment (emphasis in original). This, Alito responds, is a “curious argument indeed,” and it would force the Court to hold that the Fifth Amendment codified an early English right that existed only “in legend”, not in case law. Gamble adduces five treatises that ostensibly support his view. But Alito directs the question back to stare decisis: The treatises “do not come close to settling the historical question with enough force to meet Gamble’s particular burden under stare decisis.” As to the treatises themselves, Alito disposes of their supposed value to Gamble’s point of view with relative ease. William Blackstone’s Commentaries on the Constitution comes nowhere close to endorsing the speculative holding of Hutchinson. Two other treatises weren’t even published until 1814 and 1816, a quarter-century after the ratification of the Fifth Amendment. One emits radio silence as to any case involving successive, foreign prosecutions. And the last speaks to acquittals in civil cases, not convictions in criminal cases as is the issue here in Gamble.
Next, Alito addresses 1800s state court cases that are presumably opposed to the dual-sovereignty doctrine. The Supreme Court considered a number of these cases in Bartkus and found them to be “inconclusive.” Alito writes that “[t]hey seemed to be evenly split and to ‘manifest conflict[s] in conscience’ rather than confident conclusions about the common law” (quoting Bartkus). Just as with the early common law cases, Alito maintains, “[w]e see things no differently today,” and Gamble’s argument thus “appears no stronger.”
Finally, Alito waves away two 1820 Supreme Court cases cited by Gamble. The first is Houston v. Moore. A Pennsylvania state court-martial tried a member of the state’s militia for the crime of desertion, which is a federal offense. The Houston Court agreed that the militia-member could not be tried in both state and federal court for deserting the military. But, contra Gamble, the Houston court did not come to this conclusion on the basis that it would violate the dual-sovereignty doctrine. Instead, it was because the Fifth Amendment bars two sovereigns (e.g., Pennsylvania and the United States) from both prosecuting a crime against only one of them (e.g., the federal crime of desertion). The dual-sovereignty doctrine allows two sovereigns to each prosecute an action that infringes one or more laws of both sovereigns. Thus, Alito declares, Houston “does not undercut our dual-sovereignty doctrine.”
The other case is United States v. Furlong, in which the Court held that an acquittal of piracy in the court of one nation bans the prosecution of the same act of piracy in the courts of any other nation. Gamble quotes the Furlong Court, arguing it came to this conclusion because piracy, being a violation of the law of nations, is an “offence within the criminal jurisdiction of all nations” and is “punish[able] by all.” In a fiery paragraph, Alito disposes of Gamble’s argument following from Furlong:
Ending his quotation from Furlong at this point, Gamble gives the impression that Furlong rejects any dual-sovereignty rule. But that impression is shattered by the next sentence: ‘Not so with the crime of murder.’ As to that crime, the Furlong Court was ‘inclined to think that an acquittal’ in the United States ‘would not have been a good plea in a Court of Great Britain.’ And that was precisely because murder is ‘punishable under the laws of each State” rather than falling under some ‘universal jurisdiction.’ When it came to crimes that were understood to offend against more than one sovereign, Furlong treated them as separate offenses—just as we have [done] a dozen times since, and just as we do today (quoting Furlong).
Full stop. Gone go Gamble’s backup arguments.
As a last resort, Gamble looks to the doctrine of incorporation and the supposed impracticality of overlapping federal and state codes. On the former, Gamble asserts that the foundation of the dual-sovereignty doctrine was “washed away” when the Fifth Amendment was incorporated against the states in 1969.
Take, for example, the Fourth Amendment right against unreasonable searches and seizures, which was incorporated in 1961. Under the Fourth Amendment, we know that if a police officer conducts a search and seizes evidence illegally, that evidence cannot be used at trial, for the search and its seizure were unlawful (the “Exclusionary Rule”). But before 1961, the Exclusionary Rule applied only to federal police officers, not state police officers, since the Fourth Amendment had not yet been incorporated. This gave rise to the “silver-platter doctrine,” under which state agents could give illegally-obtained evidence to federal agents for use in federal cases, thereby subverting the Exclusionary Rule. Mapp v. Ohio (1961), when the Court incorporated the Fourth Amendment, terminated the silver-platter doctrine, ensuring today that evidence obtained illegally is inadmissible in court regardless of the jurisdiction of the seizing authority.
Gamble uses this analogy to argue that incorporation of the Fifth Amendment should have jettisoned the dual-sovereignty doctrine. “[B]ut his analogy fails,” Alito declares. Incorporation of the Fourth Amendment altered the status of state-agent-conducted searches and seizures which, today, we would deem illegal. Put differently: Before incorporation, they were legal; after, they were illegal. So, after incorporation, since such searches and seizures now violated federal law, the silver-platter doctrine was no longer supported. But incorporation of the Fifth Amendment did not alter the status of different sovereigns’ respective jurisdictions. A sovereign’s interest in prosecuting an action that constitutes a crime under its laws, irrespective of whether that action also constitutes a crime under another sovereign’s laws, was apparent long before the incorporation of the Fifth Amendment. Put differently, “[i]ncorporation meant that the States were now required to abide by this Court’s interpretation of the Double Jeopardy Clause,” Alito writes. “But that interpretation has long included the dual-sovereignty doctrine, and there is no logical reason why incorporation should change it.”
Finally, Alito dismisses Gamble’s last argument, which speaks to the “proliferation of federal criminal law” and argues that it “heightens the risk of successive prosecutions under state and federal law for the same criminal conduct.” But getting rid of the dual-sovereignty doctrine, Alito replies, “would do little to trim the reach of federal law.” And more importantly, ejecting the dual-sovereignty doctrine would fail to prevent several successive prosecutions anyway “unless we overruled the long-settled rule that an ‘offence’ for double jeopardy purposes is defined by statutory elements, not by what might be described . . . as a unit of criminal conduct.”
In sum, then, the Court in Gamble v. United States declines to cast aside the dual-sovereignty doctrine of the Double Jeopardy Clause, because it is derived from the actual wording of the Fifth Amendment and because it has a longstanding history in over 170 years of case law.
Chief Justice Roberts and Justices Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh made up the rest of the Court’s majority.
Justice Thomas’ Concurrence
In a seventeen-page concurrence, Justice Clarence Thomas first makes clear his accord with the majority’s conclusion. But this accounts for only a page-and-a-half. Thomas devotes the vast majority of his opinion to expounding his views on stare decisis. He notes that Justices should be careful not “to confuse our own preferences with the requirements of the law.” Stare decisis “exacerbates that temptation” by seducing the court into following “demonstrably erroneous decisions,” instead of the “text of the Constitution and other duly enacted federal law.” This is especially so, Thomas continues, when “expanding federal power or crafting new individual rights.” Consequently, the Court ought to “restore our stare decisis jurisprudence to ensure that we exercise ‘mer[e] judgment,’ . . . which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying,” citing The Federalist No. 78.
In Thomas’ view, if the Court faces a case invoking precedent that is “demonstrably erroneous”—that is, a prior case that “is not a permissible interpretation of the text” of a statute—”the Court should correct the error, regardless of whether other factors support overruling the precedent.” The Judiciary interprets law, it does not make law. And “[a] demonstrably incorrect judicial decision . . . is tantamount to making law.” Sticking by it, Thomas explains, “both disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power.”
Justice Ginsburg’s Dissent
Justice Ruth Bader Ginsburg spares hardly any time before throwing her main punch: “I dissent from the Court’s adherence to that misguided [dual-sovereignty] doctrine. Instead of frittering away Gamble’s liberty upon a metaphysical subtlety, two sovereignties, . . . I would hold that the Double Jeopardy Clause bars successive prosecutions for the same offense by parts of the whole USA” (internal quotation marks and citations omitted).
Ginsburg moves to undermine the majority’s reliance on the word “offence.” Recall that argument goes like this: An “offence” is a violation of a sovereign’s laws. Both an individual state and the federal government are two different sovereigns, each with different laws. One action may infringe different laws of both sovereigns. Hence, such an action would constitute multiple “offences,” hence successive prosecutions for those “offences” do not violate the Double Jeopardy Clause. But this “compact syollogism,” Ginsburg replies, is “fatally flawed,” and it “overlooks a basic tenet of our federal system.” This formation of the dual-sovereignty doctrine “treats governments as sovereign.” The Constitution, however, places sovereignty in the “governed” (emphasis added). Thus, to Ginsburg, the dual-sovereignty doctrine “invokes federalism to withhold liberty” guaranteed to each citizen by the Constitution.
Ginsburg also takes issue with the majority’s rationale that incorporation of the Fifth Amendment did not alter the Double Jeopardy Clause in the context of the relationship between the states and the federal government. In addition, she places much more stock in the duo of 1820 Supreme Court cases that Gamble argues were opposed to the dual-sovereignty doctrine—an argument which the majority waved away.
For these reasons, Ginsburg would reverse Gamble’s conviction in federal court. In her mind, “[d]ifferent parts of the WHOLE United States should not be positioned to prosecute a defendant a second time for the same offense” (capitalization in original).
Justice Gorsuch’s Dissent
The final 25 pages of Gamble go to Justice Neil Gorsuch’s dissent. Gorsuch has a unique writing style; it is frank, down-to-earth, approaching upon pithy, and at times incredibly humorous. Take, then, Gorsuch’s opening paragraph in full and at face value:
A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy. My colleagues say that the federal government and each State are “separate sovereigns” entitled to try the same person for the same crime. So if all the might of one “sovereign” cannot succeed against the presumptively free individual, another may insist on the chance to try again. And if both manage to succeed, so much the better; they can add one punishment on top of the other. But this “separate sovereigns exception” to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history. Instead, the Constitution promises all Americans that they will never suffer double jeopardy. I would enforce that guarantee.
See? In plainspoken terms, Gorsuch—dissenting from his usually-like-minded, conservative-leaning benchmates—pronounces his distaste for the dual-sovereignty doctrine.
After first appealing to the centuries-long history of the idea of protection against successive prosecutions, Gorsuch reverts back to his call-a-spade-a-spade rebuttal of the majority. “Most any ordinary speaker of English would say that Mr. Gamble was tried twice for ‘the same offence,’ precisely what the Fifth Amendment prohibits. Gorsuch then takes a leaf out of Ginsburg’s book, attacking to whom the majority bestows “sovereignty.” “[T]he framers [of the Constitution] didn’t conceive of the term ‘same offence’ in some technical way as referring only to the same statute” between different governments, Gorsuch says. “And if double jeopardy prevents one government from prosecuting a defendant multiple times for the same offense under the banner of separate statutory labels, on what account can it make a difference when many governments collectively seek to do the same thing?”
Gorsuch continues on, this time poking at the practicality of the modern-day iteration of the dual-sovereignty doctrine:
Imagine trying to explain the Court’s separate sovereigns rule to a criminal defendant . . . . Yes, you were sentenced to state prison for being a felon in possession of a firearm. And don’t worry—the State can’t prosecute you again. But a federal prosecutor can send you to prison again for exactly the same thing. What’s more, that federal prosecutor may work hand-in-hand with the same state prosecutor who already went after you. They can share evidence and discuss what worked and what didn’t the first time around. And the federal prosecutor can pursue you even if you were acquitted in the state case. None of that offends the Constitution’s plain words protecting a person from being placed “twice . . . in jeopardy of life or limb” for “the same offence.” Really?
In addition, Gorsuch—much like Ginsburg does regarding the early Supreme Court cases—gives more weight to the common law cases and constitutional law treatises cited by Gamble.
Finally, Gorsuch spars against stare decisis, a battle he must win if his view would have prevailed. “[W]hile stare decisis warrants respect,” Gorsuch submits, “it has never been an ‘inexorable command,’ and it is ‘at its weakest when we interpret the Constitution'” (internal citations omitted). Here in Gamble, whether one looks at a prior case’s reasoning, consistency with related cases, subsequent developments in the law, or the benefit of relying on the decision, each and every factor “suggests we should reject the separate sovereigns exception” to the Double Jeopardy Clause. First, the legal reasoning of prior cases concerning the dual-sovereignty doctrine is spotty at best. The Court in those cases “offered passing approval to the possibility of successive state and federal prosecutions, but did so without analysis and without actually upholding a successive conviction.” Second, Gorusch questions their consistency and opines that many of those cases “were decided by the narrowest of margins, over spirited dissents challenging the basic underpinnings of those decisions,” quoting Chief Justice William Rehnquist’s majority opinion in Payne v. Tennessee in 1991. Third, as to subsequent legal developments, Gorsuch again aligns with Ginsburg and argues the incorporation of the Double Jeopardy Clause “eroded” the foundation of several early dual-sovereignty cases. And fourth, Gorsuch maintains that the Court has “long rejected the idea that law enforcement reliance interests outweig[h] the interest in protecting individual constitutional rights so as to warrant fidelity to an unjustifiable rule” (internal citation omitted). Yet, in Gorsuch’s mind, “the only people who have relied on the separate sovereigns exception are prosecutors who have sought to double-prosecute and double-punish”—flagrantly flouting the Court’s rejection and undermining the reliance interest.
Gorsuch ices the cake with a closing rhetorical flourish:
When 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 (internal citation omitted).
For all these reasons, Gorsuch would hold the dual-sovereignty doctrine “was wrong when it was invented, and it remains wrong today.”