GateHouse Media
June 21, 2019
The Double Jeopardy Clause of the Fifth Amendment to
the United States Constitution prohibits anyone from being prosecuted twice for
substantially the same crime.
If Aaron Burr, Thomas Jefferson’s vice president,
were found not guilty of discharging a firearm when he shot Alexander Hamilton,
he could not be tried a second time by the federal government for discharging
the firearm. However, if he was found not guilty of discharging a firearm and
was later charged with Hamilton’s murder, the second prosecution would not be
barred because murder is not substantially the same crime as discharging a
firearm.
As with all of the first 10 Amendments to the U.S.
Constitution, the Double Jeopardy Clause originally applied only to the federal
government.
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.”
However, in the mid-19th century the U.S. Supreme
Court carved-out an exception to the Double Jeopardy Clause, known as the “dual
sovereignty doctrine.” Three decisions by the Supreme Court between 1847 and
1852 established the framework for the doctrine.
The Court asserted that each citizen owes
“allegiance to two sovereigns, (the federal government and the state
government) and may be liable to punishment for an infraction of the laws of
either.” As a result, the long standing doctrine allows a state to prosecute a
defendant under state law even if the federal government has prosecuted him or her
for the same conduct under federal law.
Think of it this way. Burr is charged with
discharging a firearm in New Jersey by the federal government. The Feds try him
and he is found not guilty. The dual sovereignty doctrine allows Burr to be
tried again by the state of New Jersey for discharging the firearm.
This week the U.S. Supreme Court affirmed the
170-year-old doctrine. In 2015, Terance Gamble was pulled over by an Alabama
police officer for a broken tail light. 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 permitted a second prosecution for the
same offense by a different “sovereign.” The U.S. Court of Appeals for the 11th
Circuit agreed and the Supreme Court took up the case last fall.
“We have long held that a crime under one
sovereign’s laws is not ‘the same offence’ as a crime under the laws of another
sovereign,” wrote Justice Samuel Alito Jr. for the 7-2 majority. “We see no
reason to abandon the sovereign-specific reading of the phrase ‘same offence,’
from which the dual sovereignty rule immediately follows.”
In a surprise pairing, Justices Ruth Bader Ginsburg
and Neil Gorsuch wrote separately in dissent.
In splitting from his conservative colleagues
Gorsuch wrote, “A free society does not allow its government to try the same
individual for the same crime until it’s happy with the result. Unfortunately,
the court today endorses a colossal exception to this ancient rule against
double jeopardy.”
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. 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.
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