Standing accused again and again for the same crime is a hallmark of tyrannical power recognized as far back as the ancient Greeks. They enacted a ban on the practice, which was later adopted by the Romans. Our own Fifth Amendment provides the same protection. If governments can simply try a defendant over and over again until they get the result they desire (conviction), what does the right to a trial mean? While all the Supreme Court justices agree on this, they disagree about its implications under our state and federal governments.
Monday, the Court ruled 7-2 that state and federal prosecutions for the same acts do not violate the double jeopardy prohibition. Justices Gorsuch and Ginsburg, ideological bookends on the court, both issued powerful dissents.
Felon With a Firearm
Terrence Gamble was riding dirty in Alabama and got busted for carrying a gun after his car was searched at a traffic stop. Since he was previously convicted of second-degree robbery, his possession of the handgun violated an Alabama law providing that no one convicted of “a crime of violence” “shall own a firearm or have one in his or her possession.” He was charged by the state and pleaded guilty. His sentence meant he would likely only serve one year in prison.
As Justice Ginsburg wrote:
“Apparently regarding Alabama’s sentence as too lenient, federal prosecutors pursued a parallel charge, possession of a firearm by a convicted felon, in violation of federal law. Gamble again pleaded guilty and received nearly three more years in prison.”
He challenged the federal conviction arguing the prosecution itself was prohibited by the Fifth Amendment guarantee that “nor shall any person be subject for the same offence* to be twice put in jeopardy of life or limb.”
There are only three federal crimes listed in the constitution, and being a felon in possession of a firearm is not one of them**. The growth of federal criminal law has been explosive, but also relatively recent. This started about a hundred years ago with Prohibition, and that’s when the precedent that state and federal prosecutions for the same acts were okay. The landmark Lanza case from 1922 held 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.” And that the Fifth Amendment “applies only to proceedings by the federal government.”
Since then, the Court has expanded the protections of the Bill of Rights in many areas through incorporation. When the Bill of Rights was ratified, it was in recognition of rights held against the federal government, and it guaranteed they would not be violated at that level. These enumerated rights were not protections against state governments or their creations (counties, cities, etc.). Does that change the double jeopardy analysis? Not according to the majority.
Offence Means No Trouble With Dual Prosecutions
The Fifth Amendment reads, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” That word “offence” is the cause of all the trouble. The majority says an offence is not an act – such as carrying a firearm – but a transgression against a sovereign. Since our system is one of dual-sovereignty, the majority says there is no problem with the multiple prosecutions because any violation of a sovereign’s laws may be punished.
Justice Alito argues that allowing dual prosecutions is not part of an exception to the right to be free from double jeopardy, saying “it is not an exception at all” and “[o]n the contrary, it follows from the text that defines the right in the first place.” He quotes from the Court’s decision in an earlier case:
“[T]he language of the Clause . . . protects individuals from being twice put in jeopardy ‘for the same offence,’ not for the same conduct or actions,”
Justices Gorsuch and Ginsburg were having none of it. Ruth Bader Ginsburg slammed the majority, arguing the dual-sovereignty provisions of the republic were meant to provide the people with double security for their rights. She said of the ruling “[i]nstead, it invokes federalism to withhold liberty.”
Justice Gorsuch delivered a blistering attack on the majority and issued a full-throated defense of liberty in his dissent:
“[T]he the Court today endorses a colossal exception to this ancient rule against double jeopardy. 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.”
Gorsuch and Ginsberg both focused on the idea that the ruling runs afoul of liberty by allowing the two governments to do what one alone could not – try a person twice for the same act. Ginsberg wrote, “the Federal and State Governments should be disabled from accomplishing together what neither government [could] do alone—prosecute an ordinary citizen twice for the same offence.” Gorsuch writes, “on what account can it make a difference when many governments collectively seek to do the same thing?”
He continues his broadside against the majority:
“Yes, you were sentenced to state prison for being a felon in possession of a firearm. And don’t worry—the State can’t prosecute you again. But a federal prosecutor can send you to prison again for exactly the same thing. What’s more, that federal prosecutor may work hand-in-hand with the same state prosecutor who already went after you. They can share evidence and discuss what worked and what didn’t the first time around. And the federal prosecutor can pursue you even if you were acquitted in the state case. None of that offends the Constitution’s plain words protecting a person from being placed ‘twice . . . in jeopardy of life or limb’ for ‘the same offence.’ Really?”
Gorsuch concludes that the Civil War laid to rest any notion that the states and the federal government are truly separate sovereigns.
The majority argues that another compelling reason to rule against Mr. Gamble and for the government is that it’s the way they are used to doing it. Seriously. Justice Alito writes that overruling major decisions “spanning 170 years” (emphasis in the original) must be done only upon compelling reasons not present here. Justice Thomas wrote a separate opinion on this point alone continuing what seems at times like a one-man crusade against judicial lawmaking which he likens the Court’s notion of stare decisis to.
Stare decisis is a Latin term meaning “to stand by things decided.” The principle commands courts to follow the application of the law as decided in similar prior cases, which is referred to as following precedent. The Court says it “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Said another way, just because a decision was made in error or wrongfully decided, that alone is not a compelling reason to reverse course. Justice Thomas has been on the march against bad precedent since joining the high court and wrote a 17-page opinion here to lay out his arguments in favor of ditching adherence to precedent for the sake of it. He says:
“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it. This view of stare decisis follows directly from the Constitution’s supremacy over other sources of law—including our own precedents.”
Would that the rest of his colleagues agreed with him.
This ruling represents a big loss to limited government and the rule of law. Because of how cases make their way to the Supreme Court, it is unlikely they will re-visit the issue anytime soon, and with only two justices willing to rock the prosecutorial boat, it wouldn’t matter anyway.
*The mixed spelling of “offence” and “offense” reflects the difference in historical and modern usage. The word was written “offence” in the Fifth Amendment, and that is how the justices refer to it in their opinions.
**Treason, Piracy, and Counterfeiting are the only three federal crimes originally listed in the Constitution. There are now well over 4,000.
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