June 17, 2019
WASHINGTON — In a decision that could affect associates of President Trump accused of wrongdoing and hoping for pardons, the Supreme Court ruled on Monday that criminal defendants may be prosecuted for the same offenses in both federal and state court. Since Mr. Trump’s pardon power extends only to federal crimes, the ruling leaves people he pardons subject to state prosecutions.
The vote was 7 to 2, with Justices Ruth Bader Ginsburg and Neil M. Gorsuch each filing dissents.
Writing for the majority, Justice Samuel A. Alito Jr. said there was no good reason to overrule 170 years of precedents allowing separate prosecutions.
The Constitution’s double jeopardy clause generally forbids subsequent prosecutions. But the Supreme Court has made one exception. Saying that the federal government and the states are independent sovereigns, the court has allowed separate prosecutions of the same conduct in state and federal courts.
The case before the court concerned an Alabama man, Terance Gamble, who was prosecuted by state authorities for possessing a gun after having been convicted of a felony. He was convicted and sentenced to a year in prison.
As the state case moved forward, federal prosecutors charged Mr. Gamble with the same conduct. This time, he was sentenced to 46 months, with the two prison terms to run concurrently.
Mr. Gamble argued that this violated the double jeopardy clause, but lower courts said the dual prosecutions were permissible under Supreme Court precedents.
Justice Alito wrote that Mr. Gamble had failed to make the case for overruling those precedents. “The historical evidence assembled by Gamble is feeble,” he wrote. “Pointing the other way are the clause’s text, other historical evidence and 170 years of precedent.”
Justice Alito wrote that states are separate sovereigns much as foreign nations are. “If, as Gamble suggests, only one sovereign may prosecute for a single act, no American court — state or federal — could prosecute conduct already tried in a foreign court,” he wrote.
“Imagine, for example,” Justice Alito wrote, “that a U.S. national has been murdered in another country.” Both nations, he wrote, would have an interest in prosecuting the murderer.
“The murder of a U.S. national is an offense to the United States as much as it is to the country where the murder occurred and to which the victim is a stranger,” he wrote. “That is why the killing of an American abroad is a federal offense that can be prosecuted in our courts, and why customary international law allows this exercise of jurisdiction.”
Much of Justice Alito’s majority opinion was a detailed account of old English decisions, treatises and founding-era materials. He said Mr. Gamble had failed to make a compelling case based on those documents for overruling the court’s longstanding interpretation of the Fifth Amendment’s double jeopardy clause.
“The English cases are a muddle,” Justice Alito wrote. “Treatises offer spotty support. And early state and federal cases are by turns equivocal and downright harmful to Gamble’s position. All told, this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns’ laws — much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years.”
There had been signs that at least some justices were uneasy with that line of cases. In 2016, Justice Ginsburg, joined by Justice Clarence Thomas, called for a new look at whether the exception makes sense. “The matter warrants attention in a future case in which a defendant faces successive prosecutions by parts of the whole U.S.A.,” she wrote.
As that alliance suggested, the issue did not divide the justices across the usual ideological lines. But Justice Thomas reversed course in a 17-page concurring opinion on Monday, writing that “the historical record does not bear out my initial skepticism of the dual-sovereignty doctrine.”
Justice Thomas’s opinion was also notable for its extended critique of the court’s general approach to how much respect to give precedents. He said the court should not hesitate to overrule “demonstrably erroneous precedents.”
In dissent, Justice Ginsburg said the court should have overturned the double jeopardy decisions at issue in Mr. Gamble’s case, saying they had “been subject to relentless criticism by members of the bench, bar and academy.”
She was also critical of the majority’s historical approach to the question.
“This case,” she wrote, “does not call for an inquiry into whether and when an 18th-century English court would have credited a foreign court’s judgment in a criminal case. Gamble was convicted in both Alabama and the United States, jurisdictions that are not foreign to each other. English court decisions regarding the respect due to a foreign nation’s judgment are therefore inapposite.”
In his own dissent, Justice Gorsuch said the majority had violated fundamental fairness.
“A free society does not allow its government to try the same individual for the same crime until it’s happy with the result,” he wrote. “Unfortunately, the court today endorses a colossal exception to this ancient rule against double jeopardy.”
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Originally Posted by Borderland
