In Gamble v. United States (2019), the Supreme Court confirmed its prior support for the dual-sovereignty doctrine, ruling that the Double Jeopardy Clause of the Fifth Amendment does not prohibit the federal government and state governments from both prosecuting a defendant for the same conduct.
In 2015, a local police officer in Mobile, Alabama, pulled Terance Gamble over because of a damaged headlight. The officer smelled marijuana and searched the car. During the search he found a handgun. Gamble had previously been convicted of robbery, a conviction that, under Alabama law, barred him from owning a firearm. Alabama charged Gamble with possession of a firearm, to which he pleaded guilty. After pleading guilty to the state charge, Gamble was indicted and convicted under federal law for the same offense.
In the federal case, Gamble argued that the federal prosecution should be barred on grounds that it violated the Double Jeopardy Clause. The trial court and Court of Appeals, however, rejected this argument because of the longstanding dual-sovereign rule, which allows convictions for the same offense if prosecuted by different sovereigns. Gamble appealed to the Supreme Court, arguing that the dual-sovereign rule violated the Double Jeopardy Clause. That clause provides: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”
The Court’s 7-2 opinion, written by Justice Samuel Alito, drew a distinction between conduct and offenses. Reasoning that the text of the Double Jeopardy Clause prohibits offenses but is silent on conduct, Justice Alito concluded, “so where there are two sovereigns, there are two laws, and two ‘offences.’” Thus, the clause – by its own terms – does not forbid prosecution for the same conduct.
Justices Ruth Bader Ginsburg and Neil Gorsuch dissented in separate opinions, both of which rejected the dual-sovereignty thesis. “In our ‘compound republic,’” Justice Ginsburg wrote, “the division of authority between the United States and the States was meant to operate as ‘a double security [for] the rights of the people.’ The separate-sovereigns doctrine, however, scarcely shores up people’s rights. Instead, it invokes federalism to withhold liberty.” Justice Gorsuch’s dissent cited founders Chief Justice John Marshall and Alexander Hamilton to argue that sovereignty resides not in either the federal or state governments but in the people. By misunderstanding the source of sovereignty, the dual sovereignty thesis turns the “federal experiment on its head” thereby “invok[ing] federalism not to protect individual liberty but to threaten it, allowing two governments to achieve together an objective denied to each.”