A High-Stakes Gamble: Reconsidering the Separate Sovereigns Exception


On June 28th, 2018, the Supreme Court agreed to hear Gamble v. United States, a case questioning whether the “separate sovereigns” exception to the double jeopardy clause should be overruled.[1] The double jeopardy clause in the Fifth Amendment, which states “no person shall … be subject for the same offence to be twice put in jeopardy of life and limb,”[2] is generally understood to prevent multiple punishments for a singular offense. However, the Supreme Court has long held that state and federal governments can independently prosecute a defendant for the same offense because they are “separate sovereigns.” If the Court were to leave the separate sovereigns exception intact, their decision would solidify a doctrine already controversial among legal scholars, who criticize the exception for weak Constitutional support and for infringing on defendant rights. Should they rule in favor of Gamble, decades of precedent and prosecution expectations would be traversed. Furthermore, this change could increase the scope of presidential pardons, potentially impacting the consequences of Special Counsel Robert Mueller’s investigation.

In 2008, Terance Gamble was convicted of second-degree robbery. In 2015, he was found with a gun, breaking both federal and Alabama state laws preventing felons from possessing firearms. Gamble was prosecuted and convicted in both state and federal court. He was sentenced to one year in prison by state court, while his federal sentence was forty-six months.[3] (These sentences are served concurrently—one year fulfills both his state sentence and part of his federal sentence.) Gamble appealed to the Eleventh Circuit Court of Appeals, arguing that his dual convictions and the use of the separate sovereigns exception violate the double jeopardy clause; the Appeals Court affirmed the district court’s decision.[4] Gamble then appealed to the Supreme Court, which granted his petition for the October 2018 term.

The separate sovereign doctrine was first established and used in United States v. Lanza, in which the Court decided, in part, that “when the same act is an offense against both state and federal governments, its prosecution and punishment by the latter, after prosecution and punishment by the former, is not double jeopardy within the Fifth Amendment.”[5] In Abbate v. United States (1959), the Court upheld Lanza to allow federal prosecution of conspiracy charges after state prosecution and convictions, explaining that “if the States are free to prosecute criminal acts violating their laws, and the resultant state prosecutions bar federal prosecutions based on the same acts, federal law enforcement must necessarily be hindered.”[6] The Eleventh Circuit Court of Appeals upheld the district court’s verdict in Gamble under the precedent set by Abbate. In practice, the U.S. Department of Justice follows the Petite policy, in which successive prosecutions are only pursued in extreme cases, where there is a compelling need.[7]

In 2016, the Supreme Court decided Puerto Rico v. Sanchez Valle, a case relying on the legal definition of “separate sovereigns.” While the Court adhered to this definition, in a concurring opinion written by Justice Ginsburg and joined by Justice Thomas, Ginsburg called for a re-examination of the separate sovereigns doctrine “in a future case in which a defendant faces successive prosecutions by parts of the whole USA.”[8] Gamble provides the opportunity Ginsburg called for. In her concurring opinion, Ginsburg claims that “Current ‘separate sovereigns’ doctrine hardly serves that objective [of double jeopardy].”[9] Many legal scholars have long criticized the separate sovereigns exception for this exact reason. The American Civil Liberties Union, the Cato Institute, and the Constitutional Accountability Center have jointly filed an amicus curia brief for Gamble urging the Supreme Court to end the separate sovereign exception. They argue that the use of this exception goes against the text, purpose, and English-common-law background of the double jeopardy clause.[10]

Yet others advocate for less severe modifications which would allow the separate sovereigns exception in limited cases. Akhil Amar and Jonathan Marcus, Professor of Law at Yale University and legal clerk, respectively, propose a “Section 5 Exception,” named for Section 5 of the Fourteenth Amendment. Their proposal would allow federal prosecution of abusive or “tyrannical” state officials even after a state prosecution.[11] Debate surrounding this situation was sparked by the federal prosecution of four Los Angeles Police Department officers for violating Rodney King’s civil rights. The officers had previously been tried and acquitted in state court by a jury with no black jurists. Amar and Marcus’ exception maintains the federal government’s function as a check on abuse of state power.[12]

Proponents of the separate sovereigns exception primarily argue it maintains the balance of power between the state and federal governments; as David Bryan Owsley explains in the Washington University Law Review: “When a defendant’s alleged act transgresses both state and federal law, must one government forgo its ability to prosecute in favor of the other in order to protect the defendant’s right to repose? The dual sovereign doctrine says no.”[13] This argument prioritizes the citizen’s right of self-governance through both state and federal governments over protection from double jeopardy.

For a case that, on the surface, appears to be primarily about constitutional law, Gamble v. United States has been receiving a disproportionate amount of political and media attention. The separate sovereigns exception holds a large impact on presidential pardons; a presidential pardon applies only to charges for federal crimes and thus cannot prevent state prosecutions for the same crime. In September, The Atlantic writer Natasha Bertrand linked Gamble’s outcome to President Trump’s ability to pardon those charged from Special Counsel Robert Mueller’s investigation into Russian government interference in the 2016 presidential election.[14] The impact on presidential pardons is still disputed—as Paul Rosenzweig, a senior fellow at the R Street Institute, explains, the Constitution limits presidential pardons for “offenses against the United States,” making it unclear whether a pardon would prevent state prosecution regardless of the separate sovereignty exception.[15] If the Supreme Court does not clarify the issue (in Gamble or in a later case), however, as noted in J.D. Hsin’s Congressional Research Service report on Gamble, it could be argued that states cannot prosecute a pardoned defendant who had already begun a federal trial.[16] To prevent this outcome, New York Democratic representatives and Attorney General Eric Schneiderman are currently pushing legislation to ensure defendants who receive a presidential pardon can still be prosecuted under New York state laws.[17] This is because New York’s proximity to the president and its strict financial crime laws make it the state most likely to prosecute those charged in Mueller’s investigation, like Paul Manafort.[18] As the Supreme Court considers Gamble v. US, many interested parties will be preparing for the consequences of the decision, unclear as they may be.

[1] "Gamble v. United States." Oyez. Accessed October 10, 2018, https://www.oyez.org/cases/2018/17-646.

[2] "Double Jeopardy." Legal Information Institute, updated November 08, 2017, https://www.law.cornell.edu/wex/double_jeopardy.

[3] Erwin Chemerinsky, “Chemerinsky: Another blockbuster Supreme Court term is ahead”, ABA Journal (2018). <http://www.abajournal.com/news/article/october_term_2018>

[4] United States of America v. Terance Martez Gamble, 694 Fed. Appx. 750 (11th Cir. 28 July 2017).

[5] United States v. Lanza, 260 U. S. 377, 382 (1922).

[6] Abbate v. United States, 359 U.S. 187, 196 (1959).

[7] “Fifth Amendment--Double Jeopardy and the Doctrine of Dual Sovereignty”, 69 J. Crim. L. & Criminology 597 (1978).

[8] Puerto Rico v. Sanchez Valle, 579 U. S. ____, 2 (2016) (Ginsburg R. concurring opinion).

[9] Id., 1.

[10] Brief for the Constitutional Accountability Center, Cato Institute, American Civil Liberties Union, and American Civil Liberties Union of Alabama as Amicus Curiae Supporting Petitioner at Gamble v. United States, No. 17-646 (Sept. 11, 2018).

[11] Akhil Reed Amar and Jonathan L. Marcus, “Double Jeopardy Law After Rodney King,” 95 Columbia Law Review 1, 18 (1995).

[12] Id., 20.

[13] David Bryan Owsley, “Accepting the Dual Sovereignty Exception to Double Jeopardy: A Hard Case Study,” 81 Wash. U. L. Q. 765, 783 (2003).

[14] Natasha Bertrand, "A Supreme Court Case Could Liberate Trump to Pardon His Associates," The Atlantic, September 25, 2018. https://www.theatlantic.com/politics/archive/2018/09/trump-pardon-orrin-hatch-supreme-court/571285/

[15] Id.

[16] JD S. Hsin. When Does Double Prosecution Count as Double Jeopardy?, LSB10188 (Washington DC: Congressional Research Service, 2018), https://fas.org/sgp/crs/misc/LSB10188.pdf.

[17] Colby Hamilton and Dan M. Clark, “Upcoming SCOTUS Case Could Complicate NY Effort to Close Double Jeopardy 'Loophole,'” New York Law Journal, 2 Jul. 2018. <https://www.law.com/newyorklawjournal/2018/07/02/upcoming-scotus-case-could-complicate-ny-effort-to-close-double-jeopardy-loophole/>

[18] Natasha Bertrand, "A Supreme Court Case Could Liberate Trump to Pardon His Associates," The Atlantic, September 25, 2018. https://www.theatlantic.com/politics/archive/2018/09/trump-pardon-orrin-hatch-supreme-court/571285/

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