Amber L
This brings us to the case of Gamble v. Unites States. In 2008, Terance Gamble was convicted in Alabama state court which resulted in a felony. Several years later, Gamble was pulled over and it was found he had possession of marijuana and a 9-millimeter pistol. Under Alabama and federal law, felons are forbidden from possessing a firearm. [3]
Gamble pled guilty to state charges and received one year, he also was charged in federal court where he was ultimately sentenced to 46 months total, which resulted in an additional 34-month term for the same firearm possession
Cue in dual sovereignty/ separate sovereigns rule, where a defendant can be prosecuted by the federal government and a state (or two different states), for the same crime. By breaking Alabamas "felon-possession" statue, Gamble "offended" the state of Alabama; by breaking the federal statute, he also "offended" the United States [3]
The Double Jeopardy Clause was created in 1969 and has not been revisited since its development. Due to the expansion of federal criminal law, there is quite a bit of overlap with state law, which increases the possibility of duplicate prosecution [3]
To conclude, in a 7-2 opinion in an appeal from Gamble, the court declined to overturn the dual-sovereignty doctrine.
Some items to think about when it comes to double jeopardy and sovereign separation
1. Should the dual sovereignty loophole be closed?
2. Do you feel this is an unconstitutional loophole?
3. Should there be certain crimes that allow for charges from dual sovereigns for the same offence?
The Atlantic article also touches on the following:
1. Should the dual-sovereignty exception remain in place to support the Justice Departments Civil Rights Division to rectify state court failures and hold police officers accountable by bringing Federal Civil Rights prosecutions for the same incidents?
https://www.economist.com/britain/2001/03/08/in-double-jeopardy
This is a lot to think about. I agree with the premise of double jeopardy. The double sovereignty exception has me conflicted. I want to agree with it if there is enough evidence for separate charges, but for the same crime seems hard to swallow for this. Ultimately, I do think this loophole should be closed. Same crime, different groups bringing the charges still does not change that there is two trials for the same crime.
ReplyDeleteWhen I first read this, my initial response was no way! And, after scanning through the S.C. opinion striking down the appeal 7/2, I still felt conflicted. Why? Because the federal charges had to do with the Commerce Clause! The court stood solidly on precedent here, but somehow, in this instance, using the commerce clause feels like an overreach.
ReplyDeleteI believe at the heart of this matter, is something that has been lost in our society as of late. That is, the reciprocation of respect for another person or entity's rights, even if they don't agree with it. In today's mask "debate," people want their right to choose whether they wear a mask to be respected. However, they quickly forget that the right employed for them to choose, is the same right the other person/entity has to refuse to interact with them. In short, if someone does not want to be forced to wear a mask in a store, that is their right. But when the owner of said store wants to exercise their right to refuse service to that person, it is suddenly not accepted as a right.
ReplyDeleteI feel as though this ties into the debate of separate sovereigns as well. Many people argue the federal government oversteps its bounds, and cries for more state rights. However, if they are arguing for the federal government to leave the states to decide their own affairs, the states need to respect the federal government's right to handle their affairs as they deem fit. Therefore, if the federal government wants to prosecute someone for violating a federal law, the states need to respect the right for them to do so.
I'm not necessarily saying it's appropriate for a person to be prosecuted twice, but I'm certainly saying it's within the law and the rights of the states and federal government to do so if they wish.
Although this "loophole" can be used in an unscrupulous fashion, I do not think it should be closed. First, although I do not have official numbers in analyzing the frequency of its use, based on personal experience I believe the scenario outlined in GAMBLE is rare. In the 5+ years I've been a federal probation officer, I don't think I have ever seen this situation play out. Typically, once the federal government takes the charges, the state will dismiss theirs. I do not believe prosecuting someone twice is a common practice.
Secondly, I believe this doctrine is an important part of the checks and balances on which our democracy is formed. It is important for the federal government to have the ability to prosecute when a state can't or won't--or vice versa. For example, it was the federal government utilizing its sovereign powers to enforce the Civil Rights Act when individual states refused to do so. Without the separate sovereign doctrine, this may not have been possible.
In conclusion, I think this doctrine is too vital to one of the most important cornerstones of our democracy to be removed. With how infrequently it’s used for seemingly nefarious purposes, I believe removing it will have much more disastrous consequences than benefits.
Great post! And great answer, Jacob. I agree with your assessment. It seems the punishment ended up being the greater of the two sentences, which means he really only received he greater sentence (if I'm understanding that correctly). Punishments are designed to keep the public safe and discourage crime. The crime is not in debate. I think knowing that it is possible that a crime may get two sentences, and the criminal has to serve the longer sentence, would be a good deterrent. I think Jacob makes a great point when he states that states and the federal government have the choice to execute their right to prosecute twice according to the law, as it's written. The problem I see is in racial profiling and disproportionate sentences based on race. Christobol's post addresses this exact issue. In summary, I believe in state and federal sovereign's being able to apply discretion to prosecuting twice if deemed necessary. With that said, I think there needs to be more consideration to disproportionate sentencing based on race. I believe this needs to be monitored and actionable if the numbers show bias.
DeleteDo you feel this is an unconstitutional loophole?
ReplyDeleteAbsolutely! Especially if I ever find myself, a family member or friend in this situation. Well... and anyone else for that matter. I don't think country's founders meant for this in any shape or form.
The dual sovereignty clause seems like a total violation to the Double Jeopardy Clause that was intended to protect individual's rights, and for that reason I think the loophole should be closed or as RBG suggested, a "fresh examination" of the dual-sovereignty doctrine. While this doctrine grants the federal government and state to prosecute, specifically successive prosecutions seems to be an injustice to the citizen even if it's not the norm.
ReplyDelete