Editorial: Double trouble: The Supreme Court approves dual prosecutions
The U.S. Supreme Court ruled on Monday that if you are convicted in a state court of a criminal offense, the federal government can put you on trial again for essentially the same crime, and if you’re convicted, your new sentence can be added to your old one. In our view, that’s a violation of the Constitution’s prohibition against double jeopardy.
In 2015, Terance Gamble’s vehicle was searched at a traffic stop in Alabama and a gun was found. Gamble, who had a robbery conviction on his record, pleaded guilty to a state charge of being a felon in possession of a firearm, and was sentenced to a year in prison. But he was also charged by the U.S. government for essentially the same crime arising from the same incident.
Gamble pleaded guilty to the federal charge as well, while preserving his right to challenge the second prosecution as a violation of the 5th Amendment’s command that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.”
In our view, that’s a violation of the Constitution’s prohibition against double jeopardy.
The justices rejected his argument Monday by a 7-2 vote. Writing for the majority, Justice Samuel A. Alito Jr. cited the court’s longstanding view that the federal government and the states are separate “sovereigns” and that “a crime under one sovereign’s laws is not ‘the same offense’ as a crime under the laws of another sovereign.” Alito also emphasized that a ruling in Gamble’s favor would depart from “170 years of precedent.”
The court shouldn’t lightly cast aside precedents. But there were several reasons for the court to do so in this case, as Justices Ruth Bader Ginsburg and Neil M. Gorsuch argued in persuasive dissents that put the focus where it should be: on the injustice of subjecting anyone to two trials for the same crime.
Ginsburg questioned the notion that the federal government and the states are separate “sovereigns,” writing that it “overlooks a basic tenet of our federal system, namely that under the Constitution ultimate sovereignty resides in the governed.” But even if the separate sovereigns theory once made sense, Ginsburg suggested that things changed with Supreme Court’s decision in 1969 to apply the double jeopardy clause to the states as well as the federal government.
She’s correct. If federal and state prosecutions are governed by the same constitutional rules, the double jeopardy clause prohibits successive prosecutions regardless of which level of government files the indictment.
In his dissent, Gorsuch pithily described the consequences of the majority’s reasoning:
“My colleagues say that the federal government and each state are ‘separate sovereigns’ entitled to try the same person for the same crime. So if all the might of one ‘sovereign’ cannot succeed against the presumptively free individual, another may insist on the chance to try again. And if both manage to succeed, so much the better; they can add one punishment on top of the other.”
The concerns expressed by Ginsburg and Gorsuch aren’t new. In a powerful dissent in a 1959 decision, the late Justice Hugo Black wrote: “If double punishment is what is feared, it hurts no less for two ‘sovereigns’ to inflict it than for one.”
There are a few situations in which one can justify separate state and federal prosecutions arising from the same events. The U.S. Department of Justice has brought federal civil rights prosecutions against defendants acquitted in state court of crimes of violence against racial minorities. But Ginsburg suggested in her dissent that federal civil rights laws and state laws criminalizing assault are different enough to qualify as separate “offenses.”
The state and federal charges against Gamble were aimed at the same crime and motivated by the same purpose: to punish felons found to be in the possession of a firearm. The court should have ruled that, under the Constitution, one prosecution was enough.
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