This is an interesting doctrine that has stood for some 170 years and affirmed by many judges in the past but I have to ask why has it stood. If the 14th amendment guaranttees the rights and immunities of the constitution and the Bill of Rights flow from the US constittution, through the federal government down to state governments… why on earth would something as double jeopardy be a carved out exemption?
Today the Supreme Court will hear arguments in Gamblev. United States, a case raising the issue of whether the “dual sovereignty” doctrine should be overruled. The case involves Terance Gamble’s federal conviction for being a felon in possession of a firearm. Back in 2015, police stopped Gamble for having a broken tail light and found him possessing a firearm. Because he had previously been convicted of robbery, Gamble was thus a felon in possession of a firearm – a crime under both federal and state law.
Gamble pleaded guilty to the state version of the charge in Alabama state court, serving a one-year sentence. The matter seemed to be finished. But the Alabama U.S. Attorney’s Office filed the federal version of the charges against Gamble – same crime, same conduct. Gamble argued that the Fifth Amendment’s prohibition of double jeopardy barred this second prosecution. Lower courts, however, have ruled against Gamble, concluding that the “dual sovereign” doctrine allows separate sovereigns – in this case Alabama and the United States – to pursue separate prosecutions for the same crime.
This case has considerable impact on the Mueller investigations as well because if Trump should pardon someone Mueller has sentenced states like New York are ready to file state charges for the same crime…
I think that if someone became the target of the political ruling class they would exploit their state-level connections to get the outcome they want (throwing a political enemy in prison). They would have 51 opportunities to do so (1 at the federal level and 50 at the state level).
That’s not innocent until proven guilty, it’s innocent until we find a court that will do us a favor.
The Clause should bar successive prosecutions by the state and federal government, because the dangers of collusion are even greater between these sister actors. Wouldn’t the Mueller prosecution were Manafort was convicted in Federal court then handed over to a friendly State prosecutor proof of the collusion the Federal Prosecutor and the state prosecutor? All in the name of justice? Is it justice or coercion to force a person to cooperate or else?
I don’t know. The court didn’t even have to take this case as no lower court objected to the standing order of things. 5 justices would have had to agree to see this case and while it is no guarantee, one thing that impressed me about Kavanaugh was his belief in the Supreme Courts right and responsibility to police itself and review prior rulings. While this doctrine has been in place for some time, the US constitution is pretty clear about double jeopardy. Orrin Hatch was one of the stronger supporters of Kavanaugh and he himself is strongly against the right of the state or federal to retry a case brought and failed by the other… I guess we will see just how strongly he sees the literal reading of “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb” and its ramifications with respect to the 14th amendment.
I’m not sure he’s really big on civil liberties. Unlike Gorsuch which I believe was excellent pick I mush prefer to having Raymond Kethledge on the bench in cases like this.