How many times can you face prosecution for one illegal act? The Fifth Amendment’s double jeopardy clause declares that “No person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” So, the answer seems to be once.
However, what if one action broke the laws of a state as well as the laws of the national government? Does the Fifth Amendment allow each to prosecute you?
The Supreme Court on Monday said yes. By a 7-2 vote, it found that both governments can do so without infringing on your Fifth Amendment right. Though it made many good points, the majority ultimately undermined the purpose of the double jeopardy clause.
The case, Gamble v. United States, concerned the 2015 arrest of Terance Gamble. During a 2015 traffic stop, Alabama police caught Terance Gamble with a loaded handgun. Gamble’s possession of a firearm violated both state and federal law. Alabama and the national government each then prosecuted him.
The issue really came down to what the Fifth Amendment meant by the phrase “same offense.” The majority, through Justice Samuel Alito, interpreted this phrase according to precedent called the “separate sovereigns” doctrine. It argued that an “offense” referred to violating the law of a sovereign government. America, he argued, included more than one sovereign government. Both states and the federal government possess power to make and enforce laws within each’s constitutionally mandated sphere. Each one’s sphere, moreover, may include the power to regulate the same action. Robbing a Walmart at gunpoint, for instance, might at the same time violate state laws against assault and national laws regulating interstate commerce.
Gamble committed one act. But in that one act, he broke two distinct laws created by two distinct sovereigns — the law of Alabama and the law of the United States. Thus, Gamble was not prosecuted twice for the “same offense” but for two distinct crimes. To think otherwise, Alito warned, would mean that America could not prosecute persons tried in other country’s courts. It would deny our own sovereignty, exercised in our own capacity to enforce our own laws, to countries that might operate on different ideals and different practices.
Even more important, Alito said a contrary outcome would deny the principles of federalism inherent in our constitutional structure. It rejected one principle of federalism in particular, namely that states and national governments possessed separate interests, embodied in distinct laws, that required distinct enforcement.
Justices Ruth Bader Ginsburg and Neil Gorsuch dissented from this reasoning. For starters, they understood the Fifth Amendment phrase “same offense” to describe a discrete action. Two statutes may exist outlawing the same deed. But the existence of two laws did not transform the one prohibited action into two. To these justices, Gamble committed one infraction—possessing the handgun. He was prosecuted twice based on this singular deed. Therefore, he was “twice subjected to jeopardy of life and limb” for “the same offense.”
In so reasoning, Ginsburg and Gorsuch argued that the “separate sovereigns” doctrine failed on two grounds. To begin, it misunderstood the nature of our country. We are not 51 separate sovereignties, not 51 distinct countries. Instead, we are one country with one sovereign — the American public. That one sovereign may operate through two avenues — state and federal. But under a Fifth Amendment that applies to both governments, that sovereign people only should get one chance to prosecute.
Finding otherwise, the majority placed the constitutional means of federalism above and in violation of the constitutional end of liberty.
Federalism, the dissenting justices reasoned, was not a good in and of itself. Instead, it served to protect individual rights. The double jeopardy clause thus focused on what happened to the person prosecuted, not on what government did the prosecuting.
But the “separate sovereigns” doctrine did the opposite. Gorsuch declared that protections against double jeopardy were intended to stop government from being able “to bring charges repeatedly until it wins the result it wants.” Why? Because “little would be left of human liberty if that power remained unchecked.” Eventually, the government would win. And winning involved punishment that took away either life (death penalty), liberty (jail time), or property (fines). If facing these deprivations were inevitable, then an individual possessed no true protection from government overreach. The “separate sovereigns” doctrine was a dangerous step toward that reality, both dissents concluded.
In this case, both sides defended principles central to our Constitution. Its structure demands a vibrant federalism. Its purposes require protecting individual liberty. But, in the end, the dissents better understood both structure and purpose. They better understood the relationship between state, national, and people as well as what liberty demands from our judicial process. The majority opinion, not the contrary, was a Gamble not worth taking.
Adam Carrington is assistant professor of politics at Hillsdale College
