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 www.mattmangino.com and
follow him on Twitter @MatthewTMangino. Readers’ comments are welcome.
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