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The Constitution’s Double Jeopardy Clause

Gutin & Wolverton June 20, 2019

The United States and Alabama Can Prosecute Gamble for The Same Act

The Fifth Amendment says the government can’t prosecute you for the same “offence” twice. That’s the prohibition against Double Jeopardy. But what happens when a state government and the federal government want to prosecute you for the same action – so that would be twice. Is that the same offense?

The Supreme Court ruled no, with Ginsburg and Gorsuch dissenting separately.

The Case

Terrance Gamble was pulled over by a local police officer for a damaged headlight. After the officer smelled marijuana, Gamble was searched and turned up with a firearm. He’d been previously convicted of second degree robbery, which is a “crime of violence.” Both Alabama law and federal law have provisions criminalizing the act of carrying a firearm by a person with Gamble’s conviction. Alabama prosecuted, and then the U.S. went for it too.

After pleading guilty to the Alabama charge, Gamble pled guilty to the federal charge as well, but he preserved his right to challenge the conviction on Double Jeopardy grounds. Isn’t that what Double Jeopardy is about?

Double Jeopardy Clause

The Constitution’s Double Jeopardy Clause reads that a person “shall [not] be subject for the same offence to be twice put in jeopardy” (Fifth Amendment). A state cannot punish someone for the same offense twice. And the federal government cannot punish someone for the same offense twice. But can the federal government punish someone for the same offense that a state has already punished someone for?

In Gamble’s view, the Fifth Amendment was concerned with a person’s liberty interest. Under the Fifth Amendment, an “offence” is an action. Thus for one and the same action (i.e. carrying a firearm), a person should not be punished twice. The federal government and the state government act as a unit for purposes of Double Jeopardy.

In the United States’ view, the Double Jeopardy rule functions in relation to a specific sovereign government. An “offence,” according to the U.S., is an act of breaking the law. The act alone is not the offense; it’s the law-breaking that is the offense. With a separate government, the offense is different. Thus, the federal government does not prosecute for the same offense just because the state has an offense covering the same action.

Supreme Court Ruling

In an opinion written by Justice Alito (7-2 decision), the Supreme Court ruled for the United States. Alito reviewed the text of the Clause and determined the meaning of “offense” is necessarily a relation to a specific law. The state and the federal governments have different laws, so the offense is different. Alito wrote that the Founders intended to allow separate prosecutions by different “sovereigns” because the nature of the crime is different for different governments, and each government’s interest in punishment for the crime is different.