High Court Ruling May Spark More Piggyback Prosecutions

By Kevin Penton | June 23, 2019, 8:02 PM EDT

U.S. Supreme Court Justices Ruth Bader Ginsburg and Neil Gorsuch each wrote dissents to a June 17 decision that separate federal and state prosecutions over the same criminal acts do not run counter to the U.S. Constitution.


Double jeopardy is more than the name for the second round of a television game show. It’s also a central tenet of law in the United States: An individual may not be charged twice for the same alleged offense.

Yet an exception exists for different “sovereigns.” States and the federal government are seen as possessing individual powers, allowing prosecutors at both levels of government to seek to convict an individual for the same offense. The U.S. Supreme Court upheld the practice last week, ruling 7-2 in a case known as Gamble v. U.S. that separate federal and state prosecutions do not run counter to the U.S. Constitution’s “double jeopardy” clause.

On paper, the decision merely preserves decades of status quo. But some legal experts believe the ruling may incentivize state and federal prosecutors to more frequently and cohesively work together to ensure that defendants receive the maximum sentences possible.

“Prosecutors will be emboldened, I fear, and will start acting even more aggressively than they have had in the past because they have this fresh language,” said Allison Clayton, chair of the amicus committee for the Texas Criminal Defense Lawyers Association.

The association was one of several organizations that filed an amicus brief in favor of petitioner Terance Gamble, who was charged in both federal and state court for being a felon in possession of a firearm after a police officer pulled him over and found a 9 mm handgun in 2015.

State and federal prosecutors are no strangers to working together on cases, Clayton said. In cases where, for example, defendants are facing drug or gun possession charges, the prosecutors will examine the relative strengths or weaknesses of their cases within each judicial realm, knowing that should the defendant either receive a relatively light sentence or walk away, the case can essentially be tried again, Clayton said.

With a strong majority of the justices demonstrating their support for allowing such prosecutions, authorities may now pursue such coordinated efforts more aggressively, knowing there is fresh language from the nation’s highest court that upholds the prosecutions on behalf of the people of a state or of the United States, she said.

“They’re getting two bites of the apple in my name,” Clayton said. “It’s difficult to understand how that is not double jeopardy.”

The June 17 decision drew dissents from two jurists who often find themselves on opposite sides of the court's decisions, Justices Ruth Bader Ginsburg and Neil Gorsuch.

"A free society does not allow its government to try the same individual for the same crime until it's happy with the result," Justice Gorsuch said in his dissent. "Unfortunately, the court today endorses a colossal exception to this ancient rule against double jeopardy."

Meanwhile, Justice Ginsburg said that dividing power between the states and the federal government was meant to protect people. "The separate sovereigns doctrine, however, scarcely shores up people's rights," she said. "Instead, it invokes federalism to withhold liberty."

More than half the states have some form of limitation in their books for when they can prosecute an individual after the federal government has already prosecuted the person, said Adam H. Kurland, a professor of law at Howard University School of Law.

New York state lawmakers approved a measure last month that rolled back restrictions on the state prosecuting individuals who are convicted of a federal offense and subsequently pardoned by a U.S. president. However, Kurland and attorney Gordon Todd said they were unaware of active efforts by states to roll back their double jeopardy rules to reflect the Gamble ruling.

While the ruling has raised civil rights concerns, others see potential for tougher prosecutions of civil rights violations.

Kurland said he believes the Gamble ruling will push the U.S. Department of Justice to reexamine how aggressively or not it wishes to use its discretion to prosecute civil rights cases following acquittals or relatively light sentences in state court for convicted police officers or others accused of violating such laws.

“Because of this case, now there is no question that if the feds want to, they can prosecute,” Kurland said.

Todd, a Sidley Austin LLP attorney, said that while it may seem unusual for the Supreme Court to agree to review an issue so it can subsequently maintain the status quo, he suspects the high court took the Gamble case in response to Justices Ruth Bader Ginsburg and Clarence Thomas asking for a future review of the doctrine in a 2016 case known as Puerto Rico v. Sanchez Valle.

“When you get two justices who are so frequently at odds on issues speaking together saying, ‘We should take a look at this,’ I suspect that that’s basically an invitation to the public to find the right case,” said Todd, who served as the counsel of record for an amicus brief filed in the Gamble case on behalf of organizations such as the National Sheriffs’ Association, the National League of Cities and the U.S. Conference of Mayors.

The question over the separate sovereigns doctrine had also percolated for years within academic circles, generating a fair share of petitions for certiorari that the Supreme Court regularly rejected, Kurland said.

Given the court’s current makeup, that Gamble was a 7-2 ruling rather than a 5-4 split, and that the justices left virtually no unanswered questions on the doctrine within the ruling, Kurland and others said they suspect this will largely be settled law for the foreseeable future.

“We probably won’t see another challenge to it in our lifetimes,” Clayton said. “It was a very definitive opinion.”

--Additional reporting by Jimmy Hoover. Editing by Aaron Pelc.

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