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United States Supreme Court Hears Argument On Double Jeopardy Loophole

United States Supreme Court Hears Argument On Double Jeopardy Loophole

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: no person shall be subject for the same offense to be twice put in jeopardy of life or limb. Broadly speaking, it means the Government cannot retry anyone for the same offense twice. This is an inherent right granted to every citizen to protect them from Government excessive overreach.

However, for the past 170 years the US Supreme Court has held that the Federal Government and state governments are dual sovereigns. That’s how the Court created an exception, or loophole, to the double jeopardy clause and found it does not apply to separate prosecutions for the same criminal offense in both state and federal court.

This dual sovereignty doctrine has its roots in the pre-Civil War era and was enacted to allow the Federal Government to prosecute individuals acquitted for protecting runaway fugitive slaves in state court. The entire basis for the dual sovereignty doctrine was to enable the criminal prosecution of people who supported the abolition of slavery.

This week, the United States Supreme Court heard arguments in a case challenging the dual sovereignty doctrine and provides an opportunity for the Court to re-evaluate the loophole it carved in the double jeopardy clause. In Gamble v. United States, Terance Gamble was convicted in Alabama State Court of being in violation of the state law—he was a felon in possession of a firearm and was sentenced to one year in prison. Concurrently, the Federal government charged and convicted Gamble of the same offense for violating the federal law which also prohibits felons from being in possession of a firearm and sentenced him to 46 months in prison.

Gamble’s attorneys are challenging this double conviction for the same offense, claiming it is barred by the original intent of the double jeopardy clause. They have requested the Court reinterpret the dual sovereignty doctrine and apply the double jeopardy clause as written and intended by the framers of the Constitution.

Most interestingly, at the oral arguments conservative justices Thomas and Gorsuch joined Ruth Bader Ginsburg in attacking the exception stating the clause was intended to protect the liberty of the individual citizen, not the government’s freedom to prosecute the same offense twice. Yet the other justices, including the more liberal ones, insisted the court should not overturn a precedent that has been the law for 170 years.

This rational is dangerously flawed—if the Court’s basis to allow this injustice is based solely on the fact that the exception is precedent, then prior Court rulings supporting slavery or the internment of US citizens of Japanese descent during WWII could also never be reversed. This is a chance for the Court to correct a 170-year-old erroneous decision whose original purpose was to support slavery. Now is the time for the Court to protect people from overzealous prosecutors more interested in incarcerating individuals than serving justice.

Robert M. Bernstein is a criminal defense attorney based in Los Angeles, CA. If you or a loved one are facing criminal charges contact him for a free consultation.


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