Friday, January 12, 2018

The Crime Report: Double Jeopardy, Sanctuary Cities, and the Kate Steinle Case

Matthew T. Mangino
The Crime Report
January 11, 2018
The tragic death of Kate Steinle during the summer of 2015 created a firestorm over illegal immigration. Candidate—and now President—Donald Trump blamed Steinle’s death on San Francisco’s sanctuary city policy, which prohibits city law enforcement officers from helping federal immigration officials carry out detentions of undocumented immigrants.
The rhetoric was amplified last month when José Ines Garcia Zarate, was acquitted in state court of Steinle’s murder. He was, however convicted of being a felon in possession of a firearm.
Garcia Zarate has now been indicted on two federal charges similar to those he was convicted of in state court. The federal charges were announced by Attorney General Jeff Sessions.
The federal charges come at an interesting time. The state convictions and new federal charges raise concerns of violating the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution.
In Gamble v. United States, the U.S. Supreme Court is being asked to consider whether the Double Jeopardy Clause—which prohibits any person from being prosecuted for the same offense more than once—bars a federal prosecution for a criminal offense when the defendant has already been prosecuted for the same offense in state court.
This is the very issue facing Garcia Zarate.
The Double Jeopardy Clause clearly established that the Founding Fathers viewed the prohibition of successive prosecutions as a fundamental right of individual liberty and an important safeguard against government harassment and overreach.
Double Jeopardy is not unique to American jurisprudence. According to Sir William Blackstone’s Commentaries on the Laws of England, it was a “universal maxim of the common law of England, that no man is to be brought into jeopardy more than once of the same offence.”
The Fifth Amendment provides “. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb[.]”
As described in the Commentaries on the Constitution of the United States, the protection against twice being put in jeopardy of the same offense would help provide a “barrier . . . against the approaches of arbitrary power.”
In 2015, Terance Martez Gamble was pulled over by an Alabama police officer for a broken taillight. During the stop, the officer discovered both a gun and marijuana paraphernalia in Gamble’s car. Gamble, who had been convicted of second-degree felony robbery seven years earlier, was barred from owning a firearm.
Gamble was prosecuted for illegal possession of a firearm, and he served one year in state prison. Subsequently, the federal government also charged Gamble with illegal possession of a firearm for the same incident. Gamble asked the U.S. District Court to dismiss his federal indictment for violating double jeopardy.
The District Court ruled that the dual-sovereignty exception to the Double Jeopardy Clause, which permits a second prosecution for the same offense by a different “sovereign,” permitted the federal case to proceed.
Under the dual-sovereignty doctrine, so long as two offenses are defined by different jurisdictions, they cannot constitute the “same offense.” This is true even if the offenses contain identical elements and even if the underlying statutes contain identical language, wrote Adam J. Adler in The Yale Law Journal.
As a result, the Double Jeopardy Clause does not apply in a multi-sovereign context. The federal government can charge a felon with possessing a firearm even after a state government has already convicted the felon of possessing the same firearm, at the same time and arrested by the same law enforcement agency.
Thus the state and federal government can both prosecute the same offender for the exact same offense.
Gamble appealed to the U.S. Court of Appeals for the Eleventh Circuit, and that court affirmed the lower court’s decision. Gamble, who is now serving time in federal prison, asked the Supreme Court to reconsider its past decisions allowing successive prosecutions for the same offense by different sovereigns.
An Amicus Brief filed by the Cato Institute points to the expansion of federal criminal statutes as a reason for the Supreme Court to revisit the dual-sovereignty exception to the Double Jeopardy Clause.
Traditionally, the federal government left most criminal matters to be handled by the states; there were relatively few offenses punishable by both state and federal statutes. But in recent decades, there has been “a stunning expansion of federal criminal jurisdiction into a field traditionally policed by state and local laws,” wrote Justice Clarence Thomas in 1992.
The Supreme Court created the dual-sovereignty exception a decade before it held that the Double Jeopardy Clause fully applied to the states through the Fourteenth Amendment. With over 4,450 crimes making up the federal criminal code, and an equally voluminous code of federal regulations, there is no reason why a state prosecution should not “count” when a defendant objects to being prosecuted federally for the same offense a second time.
Justice Hugo Black argued in a 1959 dissent, “If double punishment is what is feared, it hurts no less for two ‘Sovereigns’ to inflict it than for one.”
The High Court should take Black’s advice and put an end to the dual-sovereignty exception as it relates to federal prosecutions. The exception is ill-suited for an era where Congress continues to thrust federal criminal jurisdiction into areas not contemplated even a few decades ago.

Editor’s Note: Gamble is being considered for review on a Writ of Certiorari. While the Court has not agreed to hear the case yet, a decision to accept the case should be made in next 60-90 days.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C., of New Castle, PA. His weekly column on crime and punishment is syndicated by GateHouse Media and his book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino. Readers’ comments are welcome.

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