One Offense, Two Trials (State and Federal)

The double jeopardy clause in the 5th Amendment is clear: “…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…” Nonetheless, in Gamble v. United States, the Supreme Court, in a 7-2 decision handed down this year, affirms that a person who commits a single offense may be tried twice, once in a state court and once in a federal court. The two dissenting votes were cast by Justices Ginsburg and Gorsuch.

Justice Alito’s majority decision informs us “We have long held that a crime under one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another sovereign. Under this ‘dual-sovereignty’ doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.” And vice versa.

Justice Thomas concurred. His discussion almost entirely is of stare decisis, not the case. His bottom line is that no one, including Ginsburg and Gorsuch, has shown the dual sovereignty doctrine to be demonstrably fallacious:

“Because petitioner and the dissenting opinions have not shown that the Court’s dual-sovereignty doctrine is incorrect, much less demonstrably erroneous, I concur in the majority’s opinion.”

Let’s see why the doctrine is logically erroneous in the way in which the Court has interpreted it. Let’s also see why the 5th Amendment’s known applications also show us why this Court decision is incorrect.

To be sovereign is to have the final word. There is no appeal beyond a sovereign. Word over what? Over the matters, actions and areas of activity that the sovereign has been designated and allowed to wield authority over. There simply cannot be two sovereigns over the very same realms of human action. The U.S. constitution, a creature of construction by the States, lays out the federal government’s authority as a sovereign in areas accorded to it and no other. In those areas, the States have ceded sovereignty. Dual sovereignty exists only in the sense that there are two separate sovereign governments, each sovereign over separate matters. In that sense, dual sovereignty is proper, workable and appropriate.

But dual sovereignty cannot possibly mean the presence of two governments, each of which gets to rule on the same matters. That makes absolutely no sense. If, under a mistaken understanding of the doctrine of dual sovereignty, Colorado legalizes marijuana and the U.S. government makes it illegal, impossible confusion results. The final word is absent. Neither government is clearly sovereign in this case; they have to come to an understanding of who gets to make the law of marijuana. They have to divide their areas of control.

Gamble was convicted in an Alabama court of possessing a firearm as a felon. After pleading guilty, federal prosecutors indicted him for the same action under federal law. Gamble appealed his eventual second sentence, and the Supreme Court decided for the U.S. government and against him. The U.S. Constitution doesn’t define sovereignty or explain it or explicitly bring in a doctrine like dual sovereignty, even though it’s setting up such a system. Why then does the Court import and rely upon a flawed understanding of this doctrine? Why do that when the 5th Amendment rules out double jeopardy at the federal level, and by other amendments this protection has been extended to the States?

If you cannot be tried twice in a state court for a given offense; and if you cannot be tried twice in a federal court for a given offense, does this 5th Amendment application also rule out being tried once in a state court and once again in a federal court for a given offense? If there cannot be double jeopardy through those two scenarios, and it’s clear that ruling out double jeopardy is therefore the clear aim and the actual law in those two scenarios, then why not also take it to be the clear aim in the state-federal or federal-state cases? Why doesn’t the elimination of double jeopardy rule the roost? Why does a misapplication of dual sovereignty take precedence?

The answer is that the Supreme Court in its history of such cases wants to extend federal power. A single act is therefore interpreted as not one offense, but two offenses, in situations where there are two laws, state and federal. The offender is deemed by the Court to be under two jurisdictions. Two offenses, two trials — this is the reasoning. But it assumes what needs to be, and cannot be, defended legally and rationally, namely, that a single act can be two offenses; which is to assert that two governments, supposedly distinct and each sovereign in its own realm, do indeed and can indeed both simultaneously have lawful jurisdiction over a given single act.

It offends the very idea of sovereignty as a sole and final authority, and it offends the 5th Amendment to allow one offense to be accorded two trials, state and federal. It offends justice that the clear constitutional language prohibiting double jeopardy for a single offense be misinterpreted to mean two laws, two offenses and two trials.

If the Court were to reject their mistaken notion of dual sovereigns both ruling on the same acts, a huge number of federal laws that impinge on, overlap and sometimes contradict state laws, would be called into question. That is why the Court maintains this fiction.

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3:56 pm on October 19, 2019

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