Terance Gamble sits in a federal prison cell today, and will until February 16, 2020 – unless the Supreme Court says differently. On a November night in 2015, Terry was ridin’ dirty. The po-po pulled him over for a bad tail light. Then the cop smelled the weed Gamble was smoking. Things got worse – two baggies and scale. And worse – a 9mm. That is not a newsworthy story, and sadly our prisons are full of men with the same tale. Mr. Gamble’s case is at the Supreme Court though and may change a fundamental rule about criminal prosecutions in the U.S.
Alabama prosecuted Gamble for the marijuana, and for being a felon in possession of a firearm. Mr. Gamble, you see, was convicted in 2008 for felony robbery, also in Alabama. He was sentenced to a year in prison on those convictions.
Federal Trouble Too
While the state of Alabama was busy with its prosecution of Gamble, the feds were lining up to take a bite out of his hide as well. President Obama and his attorney general, Eric Holder, directed the federal prosecutions of people who were already being tried at the state level. Gamble pled guilty to the federal charge – with one caveat, and he was sentenced to 46 months’ imprisonment, plus three years of supervised release after that.
Requiring a citizen to win two successive criminal trials to keep their liberty is a burden too high…
The caveat to his plea was that Gamble could challenge the entire conviction on the grounds that it violated his Fifth Amendment protection against double jeopardy, or “for the same offence to be twice put in jeopardy of life or limb.” His case is remarkably “clean” in legal terms, which is to say there are no other muddying issues present, and consequently, court watchers believe this case presents a nearly unique opportunity to see an end to the exception to the constitutional protection against double jeopardy that the Court itself created.
Indeed, just by making it this far, Gamble has beaten the odds, as sadly, this type of dual prosecution at both the state and federal levels is relatively common, and has been going on for a century. Federal firearm prohibitions combined with the drug war have made these cases more and more common, however.
Dual Sovereign Exception
The Supreme Court granted this exception, clarified during the prohibition case of U.S. v. Lanza where the court ruled:
It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.
Just last week, the Supreme Court heard a case to decide whether the Eighth Amendment would be fully incorporated, or made applicable against the states, as well as the federal government. In Lanza, the Court rested part of its decision on that very point saying “[t]he Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the federal government.”
Perhaps that foundation, now eroded, will provide a basis for the Justices to recognize the right protected by the Fifth Amendment as inclusive against these dual prosecutions. The Court ruled in 1969 that Fifth Amendment protections against double jeopardy are incorporated against the states.
Unlike so many decisions that redraw rights from an oblique angle – here the court takes the issue head-on. The question presented is “[w]hether the Court should overrule the ‘separate sovereigns’ exception to the Double Jeopardy Clause.”
Yes, they should. Winning a criminal case in state or federal court is an uphill battle, to say the least. That is to say nothing of the financial gut punch of a single trial. Federal criminal laws are not the few they were in the 1920s. Now, just about every state crime has a federal corollary. Requiring a citizen to win two successive criminal trials to keep their liberty is a burden too high for any free society.
The Court will issue its ruling next year.