By Christopher Zoukis
On December 6, the U.S. Supreme Court heard arguments in Gamble v. United States, raising the issue of whether sometimes defendants can face separate trials, and possibly conviction and sentencing, for the same violation in both state and federal courts, despite the Constitution’s provision against double jeopardy.
The Fifth Amendment to the U.S. Constitution provides, among other things, no person shall “for the same offense… be twice put in jeopardy of life or limb.” Terance Gamble, currently serving time in an Alabama prison, claims he’s been sentenced by both state and federal courts for the same act, which he argues ought to be forbidden as double jeopardy.
In 2008, Gamble was convicted by an Alabama court of a felony, second-degree robbery. In 2015, when a police officer stopped Gamble’s car for a faulty headlight, a vehicle search found marijuana and a loaded 9-millimeter handgun. Both Alabama and federal law forbid felons to possess firearms.
First, Alabama brought charges against Gamble under state law; after pleading guilty, he drew a one-year prison sentence. Next, federal prosecutors charged him with violating the federal law; Gamble unsuccessfully tried to have the federal charge dismissed, but was sentenced to 46 months’ imprisonment, 34 months more than the state-imposed sentence. He’s taken his appeal to the Supreme Court, trying to have the federal sentence overturned as an unconstitutional violation of the double-jeopardy provision.
Under current law, federal prosecution for an offense also violating state law isn’t seen as a double-jeopardy violation, due to the so-called “dual-sovereign” exception. Even though being a felon in possession of a firearm is the same offense, this doctrine runs, having it criminalized in two distinct jurisdictions empowers either or both to prosecute it.
Asking for the “dual sovereign” exception to be eliminated, Gamble’s legal team argue it’s inconsistent with double jeopardy’s language, intent, and roots in English law. Worse, by allowing duplicative prosecutions, it encourages government over-prosecution.
Gamble’s Supreme Court appeal has drawn significant attention, with “friend of court” briefs opposing him filed by the Department of Justice and 36 states (arguing the exception to double jeopardy has been a useful part of American law for at least 170 years), and by multiple groups arguing that overturning the exception could handicap federal courts in fighting offenses which local officials might be reluctant to address.
The Supreme Court has only infrequently written on the “dual sovereign” exception. It made an early appearance in 1922, in a unanimous decision (United States v. Lanza) which allowed federal prosecution of a bootlegger near Seattle who had earlier been fined under a state law outlawing liquor sales.
In 1959, the Court upheld the exception in two cases, but two years ago, a 6-2 decision (Puerto Rico v. Sanchez Valle) disallowed a Puerto Rican weapons and ammunition trafficking prosecution against a defendant who had faced similar federal charges, finding both courts essentially drew their authority from a single source. In dissenting, Justices Breyer and Sotomayor criticized the exception, and two more Justices (Ginsburg and Thomas) suggested it was time to re-examine it.
Despite this record, and the fact at least four Justices approved taking Gamble’s appeal, Supreme Court observers of the recent oral argument believe it unlikely the Court will overturn the long-established “dual-sovereign” exception.
Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, (Middle Street Publishing, 2017), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014). He regularly contributes to New York Daily News, Prison Legal News and Criminal Legal News. He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.