ONCE BITTEN, TWICE SHY: THE SUPREME COURT'S MISGUIDED DOUBLING DOWN ON THE DUAL SOVEREIGNS EXCEPTION TO THE FIFTH AMENDMENT'S DOUBLE JEOPARDY CLAUSE.

• Author: Ballantyne, Ross

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.... (1)

1. INTRODUCTION

   The Fifth Amendment's Double Jeopardy Clause is one of the most revered provisions in the Bill of Rights, as it reflects and assuages "the deeply rooted fear and abhorrence of a governmental power which allows an individual to be subjected to multiple prosecution[s] for the same offense." (2) The Clause guarantees three separate constitutional protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. (3) Moreover, for over forty years, defendants have been entitled to the protections against double jeopardy from the moment a jury is empaneled and sworn in. (4) Despite a period of halting progress and multiple setbacks, the Supreme Court eventually applied these protections to the states through incorporation in the late 1960's. (5) Nonetheless, a curious exception to the Double Jeopardy Clause survives today under what is known as the dual sovereigns exception ("the Exception"), where the federal government and the states are considered separate sovereign entities, such that the Double Jeopardy Clause does not prohibit one sovereign from prosecuting an individual following a prosecution by the other.c

   Essentially, the Exception provides that "two identical offenses are not the 'same offence' within the meaning of the Double Jeopardy Clause if they are prosecuted by different sovereigns." (7) The Exception has been extensively criticized in light of the recent explosion of federal-state cooperation, the federal government's provision of financial backing to state and local law enforcement agencies, and the drastic rise in the prison population from the War on Drugs. (8) Despite this criticism, the Supreme Court recently reaffirmed the constitutionality of the Exception in Gamble v. United States. (9) This Note traces the historical origins of double jeopardy protection, (10) explores its centrality to the American concept of ordered liberty and due process, (11) and argues that the Supreme Court should overrule the Exception and instead deem it as: (1) an anathema to notions of popular sovereignty, (2) a manifestation of a perverse conception of federalism, and (3) a patently unfair denigration of the rights of criminal defendants. (12)

2. FACTS

   1. Underlying Case

      In 2015, a Mobile police officer smelled marijuana upon approaching Terance Martez Gamble's vehicle during a traffic stop and prompted him to initiate a search of Gamble's car; which ultimately yielded a loaded 9mm handgun. (13) Gamble's 2008 second-degree robbery conviction made his possession of the handgun a violation of an Alabama statute forbidding those convicted of violent crimes from possessing or controlling a firearm. (14) Gamble pleaded guilty to violating the state statute, but federal prosecutors later indicted him for the same single act of possession under federal law. (15) Gamble moved to dismiss the federal charge on the ground that it was for the same offense as the one to which he had previously pleaded guilty at the state level, thus impermissibly subjecting him to double jeopardy. (16) After the judge denied the motion to dismiss, Gamble pleaded guilty to the federal offense but also retained his right to challenge the motion's denial on double jeopardy grounds. (17) When Gamble subsequently exercised that right, the Eleventh Circuit affirmed the District Court's denial and held that Double Jeopardy Clause jurisprudence allows separate sovereigns to punish a defendant for the same criminal conduct. (18) The Supreme Court granted certiorari to Gamble's appeal to determine whether to overturn the Exception. (19)

   2. Gamble v. United States

      Gamble's attorneys set out the crux of their argument by explaining that the "[E]xception is incompatible with the text, original meaning, and purpose of the Double Jeopardy Clause." (20) Gamble accused the Supreme Court's twentieth and twenty-first century jurisprudence of hollowing out the protections guaranteed by the Double Jeopardy Clause as it was written, and overriding core tenets of American federalism. (21) Next, Gamble addressed probable concerns from the Court about its duty to adhere to prior decisions by writing that "[s]tare decisis loses its force when a decision's doctrinal underpinnings have been eroded." (22) Gamble further argued against the power of stare decisis by highlighting the "dramatic federalization of criminal law over the past 60 years" as a "foundational change" to the theoretical framework supporting the continued existence of the Exception. (23) Gamble continued to lay out his arguments based on: (1) the weight of historical evidence and scholarship, (24) (2) the shaky jurisprudential origins of the Exception, (25) (3) the Exception's incompatibility with the purposes of American federalism, (26) and (4) the nefarious effects of the Exception's continued survival. (27)

      On the other side, the United States--in a full-throated invocation of stare decisis--urged the Court not to "jettison[] [its] longstanding and embedded precedent" with respect to the Exception. (28) The government also relied on the express language of the Double Jeopardy Clause to support its position, arguing that the "constitutional text expressly distinguishes 'offences' based on the sovereign 'against' which they are committed." (29) The United States then shifted to a discussion of American federalism and how, in such a system, the Exception is not at odds with the protections afforded by the Double Jeopardy Clause. (30) The Government also rejected Gamble's argument that the continued existence of the Exception threatens criminal defendants' liberty interests, and noted that "[t]he necessary consequence of preserving liberty by dividing power between dual sovereigns is dual regulation." (31)

      The United States concluded by discussing several potential scenarios it deemed constitutionally unworkable if the Exception was overturned, including the denial to a State of "its power to enforce its criminal laws because another State has won the race to the courthouse." (32) The Government warned that this scenario "would be a shocking and untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines." (33) The Government then warned of the practical consequences that would result from overruling the Exception, and referenced one of the key cases in Double Jeopardy jurisprudence to aver that "if the States are free to prosecute criminal acts violating their laws, and the resultant state prosecutions bar federal prosecutions based on the same acts, federal law enforcement [would] necessarily be hindered." (34)

      Ultimately, in Gamble, the Supreme Court ruled 7-2 in favor of maintaining the Exception. (35) Writing for the majority, Justice Alito rejected Gamble's argument, and found that the historical evidence Gamble's legal team presented was "feeble" in the face of "the [Double Jeopardy] Clause's text, other historical evidence, and 170 years of precedent." (36) Subsequently, Justice Alito dispensed with Gamble's argument regarding the meaning of the Double Jeopardy Clause, writing that "where there are two sovereigns, there are two laws, and two 'offences.'" (37) Thereafter, Justice Alito took cues from the United States' arguments in his discussion of the federalism implications of the Exception: "A close look at [Supreme Court Double Jeopardy jurisprudence] reveals how fidelity to the Double Jeopardy Clause's text does more than honor the formal difference between two distinct criminal codes. It honors the substantive differences between the interests that two sovereigns can have in punishing the same act." (38)

      In a compelling dissenting opinion, Justice Ginsburg boldly criticized the majority for its "adherence to th[e] misguided doctrine [of the Exception]." (39) Justice Ginsburg continued by responding to the majority's discussion of federalism and the sovereignty implications thereof, writing that: "[The Exception] treats governments as sovereign, with state power to prosecute carried over from the years predating the Constitution. In the system established by the Federal Constitution, however, 'ultimate sovereignty' resides in the governed." (40) With heavy reliance on the Federalist writings of Alexander Hamilton, Justice Ginsburg inveighed against the Exception's continued existence for its virtual guarantee of not "shor[ing] up people's rights." (41) Justice Ginsburg's dissenting opinion was also in accord with many of the arguments Gamble advanced--she rejected the post-incorporation existence of the Exception and balked at the power of stare decisis in both the face of questionable legal analysis and changing circumstances in the reality of criminal law enforcement. (42)

      In a separate dissent, Justice Gorsuch predicated his disagreement with the majority on a plea for empathy, writing that "[a] free society does not allow its government to try the same individual for the same crime until it's happy with the result." (43) In sharp contrast to Justice Alito, Justice Gorsuch interpreted the language of the Double Jeopardy Clause in a very straightforward manner, contending that the Exception defies all foundational principles of the Fifth Amendment. (44) Justice Gorsuch further attacked the majority for its invocation of the power of stare decisis in affirming the Exception's existence and for its failure to properly consider the merits of Gamble's arguments...