Posted by Guest on June 21, 2019 in Blog

On Tuesday, June 17, 2019, the Supreme Court released its decision in Gamble v. UnitedStates, which involved a challenge to the “separate sovereigns” doctrine. According to Fifth Amendment’s double jeopardy clause, people who are accused of a crime cannot be tried twice for the same crime. However, the Supreme Court has historically granted one exception. Under what is known as the separate sovereigns doctrine, the court has allowed separate prosecutions for the same conduct in state and federal courts. The court upheld that 170-year precedent in its most recent decision.  

The double jeopardy clause states that no person shall be “subject for the same offense to be twice put in jeopardy.” The meaning of the term “offense” was an important part of the court’s decision in this case. According to Justice Alito, who wrote the majority opinion, an offense “is defined by a law, and each law is defined by a sovereign.” Because the states and federal government hold sovereign powers, state and federal laws can define separate “offenses” that can apply to the same conduct. “[W]here there are two sovereigns,” Alito wrote, “there are two laws” and therefore two offenses.

Along with Chief Justice Roberts, Justice Alito was joined by Justices Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh, while Justices Ginsburg and Gorsuch filed separate dissenting opinions. On the one hand, both Ginsburg and Gorsuch emphasized the potential threats to individual rights that successive state and federal prosecutions could pose. As Ginsburg wrote, the court’s decision to reaffirm the separate sovereigns doctrine “diminish[ed] the individual rights shielded by the Double Jeopardy Clause.”

On the other hand, the separate sovereigns doctrine has been important to preserving individual rights in some cases. As Justice Breyer noted during oral arguments, banning successive prosecutions could harm the federal government’s ability to prosecute federal civil rights cases, such as hate crimes, and gender-based violence against Native American women on tribal lands. For example, the perpetrator of the Charlottesville vehicular attack on Aug. 12, 2017, which killed Heather Heyer and wounded many others, was prosecuted under both state and federal charges, including violations of the federal Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act.

The debate over this case is convoluted, with a range of voices arguing for and against the reaffirmation of the separate sovereigns doctrine. This complexity is also demonstrated the nature of the majority and dissenting opinions. At least in the case of federal hate crime enforcement, it seems that preserving dual sovereignty remains essential, as it promises to bring justice in hate crime cases more than it obstructs civil rights.


This post was authored by Anne-Katrine Glittenberg, a 2019 summer government relations intern with AAIF.