Ending Double Jeopardy

The Fifth Amendment to the United States Constitution protects all people from double jeopardy—being charged twice for the same crime. However there is an exception to this right. It is known as the separate sovereignty doctrine, which allows both state and federal governments to charge someone for the same offense. A case currently pending in the Supreme Court, Gamble v. United States, will not only answer the age-old question of whether charging someone twice for the same crime is morally wrong, but it will also establish a precedent that might impact the Mueller investigation.

Terrance Gamble of Alabama was pulled over for a faulty headlight in 2015. After searching the car, a police patrolman discovered two bags of marijuana, a digital scale, and a handgun. Gamble was then arrested and charged for violating state drug laws. He also received both state and federal charges for felony possession of a firearm. Gamble received a sentence of one year in state prison and an additional four years in federal prison.

On the grounds of the Double Jeopardy Clause of the Fifth Amendment, he appealed his federal conviction, claiming that he shouldn’t be prosecuted for the same crime twice. The district court ruled in favor of the United States on the grounds that the separate sovereignty doctrine allows the federal and state courts to issue punishments. The 11th Circuit Court of Appeals, which is directly below the Supreme Court of the United States (SCOTUS), upheld this decision. Gamble successfully appealed to have the SCOTUS hear his case, and a decision will be made later this year—probably in June. The case has drawn national attention in part because if Gamble wins his appeal, former Trump staffers who receive a pardon from the President may be immune from state-level prosecution.

The separate sovereignty doctrine was first established in the SCOTUS case Fox v. Ohio (1847), which concluded that a citizen can be punished by both the federal and state governments. However, it was mainly used to punish people who protected fugitive slaves; the court found it necessary during a time of great strife to limit double jeopardy protections. A ruling made to limit American freedoms over an unrelated issue more than 100 years ago should no longer be in effect. Double jeopardy principles safeguard the individual right to not be successively prosecuted for the same offense; the doctrine directly contradicts the spirit of the U.S. Constitution.

A reversal of the separate sovereignty doctrine could drastically change how criminal cases are handled and prosecuted. Its removal could save years of people’s lives, make courts more available so people do not need to wait months to have a trial by reducing the number of trials, reduce the chances of innocent people being punished, and limit the intrusiveness of the criminal justice system. However, there will be political backlash.

Paul Manafort, the former chairman of President Trump’s 2016 campaign team, has been convicted of eight separate federal crimes and will be sentenced on March 5, 2019. Currently, a pardon by Trump would not protect Manafort; the moment Trump issues the pardon, Manafort will be prosecuted at the state level for the same crimes, since presidential pardons only apply to federal cases. However, if the Supreme Court rules in favor of Terrence Gamble, neither state nor federal justice systems will be able to prosecute a pardoned Manafort for the crimes he has already been tried for. However, legal experts are skeptical that a ruling in favor of Gamble would do anything practical to alter Manafort’s punishment. “Where Manafort’s case is as of today, there are plenty of state charges that are still available for state prosecutors to bring against Manafort if he were to be pardoned,” said Jed Shugerman, who is a Fordham University law professor.

The federal government already has an expansive scope over the justice system. Even more dangerously, there has been increasing federal-state cooperation in law enforcement, which is detrimental to maintaining a fair trial. Due to the sharp increase in the federalization of crime, people have to wait for two separate trials. Even if a defendant is found innocent in court, they can face jail time. This torments those who are supposedly innocent until proven guilty. But, the idea of “innocent until proven guilty” doesn’t really apply to Manafort. The entire hypothetical here is a pardon. Manafort has been found guilty.

The overturning of the separate sovereignty doctrine could help facilitate plea bargaining. Under the status quo (where the stakes are twice as high), defendants are probably less likely to plead guilty than they would be if they were guaranteed only one prosecution. A SCOTUS decision restoring our Fifth Amendment rights could lead to more prevalent plea bargaining. This benefits both criminals and the government. Plea bargaining “is an essential component of the administration of justice [that] is to be encouraged,” said Chief Justice Warren Burger, who wrote in the majority opinion for Santobello v. New York. It can prevent costly trials and limit pretrial detention.

Ultimately, the separate sovereignty doctrine is an abuse of power. Yet, overturning the doctrine will present a myriad of issues. For instance, the doctrine has established Indian tribes as sovereign, allowing them to prosecute domestic abusers without waiting for state or federal courts. This is especially important because Native Americans suffer from the highest rates of domestic abuse. Furthermore, under Gamble’s argument, “The U.S. or a state government would not be able to prosecute a foreign terrorist if a foreign government had also tried him,” said Amy Howe, a reporter for SCOTUSblog.

The implications of overturning the separate sovereigns doctrine bring impartiality to the court; a decision will be made baseless of politics. This petition is unique because judges have voiced support and disapproval not based on political views. In fact, during the hearing, liberal and conservative justices found themselves agreeing on an outcome.

Both Ruth Bader Ginsburg and Neil Gorsuch are Supreme Court Justices who agreed on reconsidering the Double Jeopardy Clause. Justice Gorsuch stated, “I can't think of another case where federalism is used to allow greater intrusions against the person (here, the prospect of dual prosecutions) rather than to protect more against [him or her].” However, others remained unconvinced. Supreme Court Justice Samuel Alito recounted, “You told us that there is a mountain of evidence supporting your interpretation of the original meaning of the Double Jeopardy Clause. This is your mountain?” There has been a limited number of cases strengthening the Double Jeopardy Clause, none of which were in the United States. A majority of justices agree that preserving precedent—known as Stare decisis—will be the most critical part of their decision-making.

The SCOTUS will have to choose between federalism and supporting individual rights in this case. The decision made will have a resounding impact on politics and criminal justice in the U.S.