A state's sovereignty trumps double jeopardy

A state's sovereignty trumps double jeopardy
© Greg Nash

An important courtroom victory for liberty and federalism is stirring confusion, with some pundits reaching very mistaken conclusions. Critics are bemoaning the recent Supreme Court decision upholding the dual-sovereignty doctrine in Gamble v. United States. For example, Slate complained that “Gamble empowers state and federal prosecutors to continue to collude in hopes of obtaining a maximum punishment” and thus “is a blow to individual liberty.”

Because of a prior robbery conviction, Terance Martez Gamble was prohibited from possessing a firearm under Alabama and U.S. law. Nonetheless, Mobile police officers found Gamble with a loaded handgun, a digital scale and marijuana. Gamble pled guilty in state court to possessing the weapon, and the judge sentenced him to 10 years’ imprisonment, suspended to one year of actual jail time.

Federal authorities did not believe that the 12-month sentence was reasonable because Gamble's criminal history contained multiple incidents of violence in the community. The Feds indicted Gamble under 18 U.S.C. § 922(g), which prohibits a convicted felon from possessing a firearm. Gamble again pled guilty, and a federal judge sentenced him to 46 months’ imprisonment, concurrent with the state sentence. 

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Gamble appealed and argued that the federal prosecution violated the principle of double jeopardy. Under the Fifth Amendment’s double-jeopardy clause, no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” In a 7-2 decision, the Supreme Court rejected Gamble’s argument and upheld long-standing precedent that the clause does not prohibit successive prosecutions by separate sovereigns for offenses arising out of the same scenario.

The court reasoned that transgressions against the laws of separate sovereigns (Alabama and the United States) do not constitute the “same offence” under the Fifth Amendment. While the double-jeopardy clause would prohibit Alabama from retrying Gamble if a jury had found him not guilty, it does not prohibit another sovereign from trying him.

The separate-sovereigns doctrine, as it’s called by legal experts, is widely supported in international law. As noted by international-law scholar Anthony J. Colangelo, “[t]he absence of a general principle of international law prohibiting successive prosecutions by different states is consistent with a jurisdictional theory under which different states with independent national jurisdiction retain the general ability to prosecute successively for the same crime.”

Opponents of the Gamble decision undoubtedly object to any analogies to international law since they see the United States as a unitary state. Indeed, in his dissent Justice Neil GorsuchNeil GorsuchMcConnell protege emerges as Kentucky's next rising star Divided Supreme Court leans toward allowing Trump to end DACA Loaded poll questions harm civil discourse MORE proclaimed that the “federal and state governments are but two expressions of a single and sovereign people” and are not truly separate “in the manner of, say, the governments of England and Portugal.”

Justice Gorsuch needs a refresher course in basic American constitutionalism. In explaining the U.S. Constitution in the Virginia ratifying convention, James Madison was unambiguous: “Who are the parties to it? The people — but not the people as composing one great body; but the people as composing thirteen sovereignties.” This view is borne out by the fact that although 11 states (a supermajority of all persons within the 13 states) originally ratified the Constitution, North Carolina and Rhode Island remained outside the Union until they were convinced that the Constitution of 1787 was worth trying.

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So when it comes to criminal law, Alabama and the United States are akin to England and Portugal, as Justice Samuel AlitoSamuel AlitoSupreme court has thrown a wrench into the machinery of free speech Divided Supreme Court leans toward allowing Trump to end DACA Justices wrestle with reach of Clean Water Act MORE acknowledged in his majority opinion.

Traditionalist critics of the modern federal system justifiably complain that Congress and the courts have stretched constitutional provisions such as the commerce clause to allow federal criminalization of acts that should be left to local authorities. Federal authorities criminalize a felon’s possession of a gun simply because the gun and/or ammunition at one time in its life crossed state lines. While this assertion of federal power is a ridiculous use of the commerce clause, it has no bearing on the proper analysis of the dual-sovereignty doctrine.

Thus, the Supreme Court’s reaffirming of the importance of our federal system is a boon for liberty. The two separate sovereigns (the national and state governments) are expected to compete and check the acts of the other. This dynamic limits power and protects the liberties of the people. Unfortunately, the national government has accrued powers never delegated to it and too often treats the states as administrative subdivisions rather than sovereign entities.

We can debate whether 12 months or 46 months is a more appropriate sentence for Gamble. But we should all agree that any Supreme Court decision that acknowledges the sovereignty of the states can only work to restore the proper balance in our federal system and promote liberty.

William J. Watkins, Jr., is a research fellow at the Independent Institute and author of Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution.