High Court Ruling Highlights Double Jeopardy Complications

By Laurel Gift and Randall Hsia | June 26, 2019, 2:45 PM EDT

Laurel Gift
Laurel Gift
Randall Hsia
Randall Hsia
In its recent decision in Gamble v. United States, the U.S. Supreme Court tackled the double jeopardy clause of the Fifth Amendment: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." On its face, the prohibition against double jeopardy suggests that the government gets only one bite at the apple for criminal offenses: one chance to charge or indict, one chance to go to trial, and one chance to find the truth and obtain justice.

In a 7-2 opinion for the court, Justice Samuel Alito upheld longstanding precedent based on the principles of federalism, finding that state governments and the federal government are separate sovereigns and that they each deserve their own chance to further their interests via prosecution. Although Gamble does not change the application of the double jeopardy clause as interpreted by federal courts, the prominence of this decision reinforces the significant impact of dual prosecutions and the complications and risks presented for corporate and individual defendants.


After a police officer pulled him over, searched his car, and found a handgun, Terance Gamble was charged under Alabama law with being a felon in possession of a firearm. He pleaded guilty and was sentenced to one year in prison. Gamble soon found himself in court again being charged for the same instance of firearm possession, except this time under federal statute. Gamble moved to dismiss the indictment on the grounds that the federal prosecution violated the double jeopardy clause of the Fifth Amendment.

The district court denied the motion, stating that the separate sovereigns doctrine promulgated by the U.S. Supreme Court was controlling. Gamble went on to plead guilty to the federal offense and was sentenced to an additional three years of imprisonment, but reserved his right to appeal on double jeopardy grounds.

The U.S. Court of Appeals for the Eleventh Circuit affirmed his conviction. and Gamble appealed to the Supreme Court, asking the justices to overturn the separate sovereigns exception to the double jeopardy clause. Certiorari was granted, and the court ultimately upheld the separate sovereigns doctrine, allowing for successive or dual state and federal prosecutions to continue in practice.

The separate sovereigns doctrine, according to the majority in Gamble, is not an exception to double jeopardy at all, but rather a rule falling within the literal meaning of the text. The majority concluded that offenses are defined by laws, and laws are defined by sovereigns — where there are two sovereigns, such as state governments and the federal government, there are two different sets of laws and thus two different sets of offenses. For over 170 years, the separate sovereigns doctrine has been controlling, and the court was not ready to turn its back on stare decisis, with the exception of Justices Ruth Bader Ginsburg and Neil Gorsuch.

Practical Implications

As it often does, the Supreme Court considered the practical implications of either overturning or upholding the separate sovereigns doctrine. In essence, how would either decision affect defendants, prosecutions, and the justice system as a whole?

The majority considered these implications less so than the dissent, instead choosing to ground itself in stare decisis. However, of concern to the majority was the impact of abolishing the separate sovereigns doctrine on the prosecution of crimes committed abroad. If the court were to follow Gamble's interpretation of the double jeopardy clause, "no American court — state or federal — could prosecute conduct already tried in a foreign court." The majority was concerned this would inhibit the ability of the U.S. to further its interests under its own laws.

At oral argument, Eric J. Feigin, assistant to the solicitor general of the United States, listed additional concerns about the potential impact of overturning the separate sovereigns doctrine, including the deterrence of cooperation among prosecutors, allowing defendants to pit one prosecutor against the other, and encouraging races to the courthouse and aggressive prosecutions. Counsel for Gamble rebutted these arguments by pointing out that about 20 states already bar reprosecution of actions previously prosecuted in federal court.

According to Gamble and the dissenting justices, the majority has endorsed the standard of "if at first you don't succeed, try, try again," allowing state and federal prosecutors to undermine the very essence of the constitutional prohibition against double jeopardy. Gamble specifically highlighted how the proliferation of federal criminal law and its overlap with state laws leaves citizens at greater risk of undergoing successive prosecutions.

In her dissent, Justice Ginsburg echoed this concern while discussing how early American courts likened such successive prosecutions to "oppression." Justice Gorsuch understood the majority to be allowing "the same individual" to be tried for the same crime until prosecutors are "happy with the result."

Future Impact

In some ways, the decision in Gamble simply affirms a situation already familiar to state and federal prosecutors and defense attorneys. Most often, one government with jurisdiction over an offense will defer to the other, especially where a single prosecution can serve the interests of both the state and federal governments.

When it is the federal government deferring, it may seek to bring its own successive prosecution only when the state prosecution leaves a "substantial federal interest demonstrably unvindicated" and conviction for the parallel federal offense is likely. Such federal prosecutions must be approved by the Justice Department pursuant to the "Petite policy," originally based on Petite v. United States.

Most often, this "unvindicated interest" arises when a state sentence is perceived to be inadequate based on the defendant's record, the violent nature or seriousness of a particular crime, and other surrounding circumstances. While the U.S. Department of Justice only authorizes about 100-150 successive prosecutions each year under the Petite policy, the genuine potential for dual prosecution impacts a much more significant number of defendants facing criminal charges. In addition, this number does not capture the number of state prosecutions that occur after federal prosecution.

Gamble and the Petite policy present significant challenges for corporate and individual defendants potentially exposed to both federal and state or local prosecution. In many cases, defendants and their attorneys should consider and guard against the potential for dual prosecution. This may involve seeking nonprosecution agreements from one or both sovereigns, negotiating directly with both prosecutorial offices or otherwise documenting the intentions of the prosecutors irrespective of potential outcomes. Corporate defendants face additional challenges involving the potential impact of dual prosecution uncertainties on business leadership, operations, and public perception.

The complexities involved in dual prosecutions can result in an unsettling waiting game for criminal defendants and their counsel. For example, a defendant's state criminal case can linger for weeks, months, and sometimes a year or more pending potential federal charges.

In other cases, an individual defendant may be convicted and sentenced in state court for a single incident of fraud, drug distribution, or other crime, only to be charged again months or years later for the same conduct as a result of a federal investigation into an overarching criminal scheme.

Under these circumstances, defense counsel should be aware of the various avenues that a criminal prosecution may take in light of the separate sovereigns doctrine, and attempt to negotiate with federal and state prosecutors to determine the most likely course that the prosecution will follow.

If dual prosecution is possible but has not yet fully developed, defendants face difficult judgment calls about cooperation and reaching potential plea agreements with respect to either the sentence or the criminal charge.

For example, most state sentencing guidelines only consider prior convictions as of the date of the offense. In contrast, federal sentencing guidelines can consider criminal convictions and uncharged conduct occurring before or after the alleged offense. Accordingly, those defendants who seek to resolve state charges first may be more aggressively punished in the federal system for their willingness to accept responsibility for state charged conduct.

Alternatively, in the case of a cooperating defendant facing both state and federal prosecution, it may be advantageous to be sentenced first in state court, despite the potential for an enhanced criminal history score under the federal sentencing guidelines. Prosecutors and judges in the federal system routinely consider a defendant's cooperation in recommending and fashioning sentences.

Accordingly, cooperating defendants in the federal system can often receive significant reductions to their sentences based upon their substantial assistance to the government. Such consideration is often less common and the impact less significant for state prosecutors than for their federal counterparts.

Finally, these practical implications of double jeopardy have become more prevalent in recent years, due to starkly disparate prosecutorial missions of individual states and the DOJ. The Supreme Court's decision in Gamble serves as a reminder of the importance of remaining vigilant in light of the complex web of potential liability that defendants may face under the separate sovereigns doctrine.

Laurel Gift is a partner at Schnader Harrison Segal & Lewis LLP. She previously served as a senior deputy attorney general in Pennsylvania.

Randall P. Hsia is a partner at the firm and a former assistant U.S. attorney for the Eastern District of Pennsylvania.

Layal A. Issa, a summer associate at the firm, assisted with this article.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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