The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..." The four essential protections included are prohibitions against, for the same offense:
retrial after an acquittal;
retrial after a conviction;
retrial after certain mistrials; and
Jeopardy attaches in jury trial when the jury is empaneled and sworn in, in a bench trial when the court begins to hear evidence after the first witness is sworn in, or when a court accepts a defendant's plea unconditionally. Jeopardy does not attach in a retrial of a conviction that was reversed on appeal on procedural grounds (as opposed to evidentiary insufficiency grounds), in a retrial for which "manifest necessity" has been shown following a mistrial, and in the seating of another grand jury if the prior one refuses to return an indictment.
The US Supreme Court is back in session after its summer recess. On the docket this term is Gamble v. US, a case that challenges the “separate sovereign” exception to the Fifth Amendment’s double jeopardy clause, an exception which allows multiple prosecutions stemming from a single offense.
The matter may have important ramifications for criminal defendants, including Donald Trump’s former campaign chairman Paul Manafort.
But the separate sovereign exception, introduced in the 1922 Supreme Court case US v. Lanza, undermines that protection by allowing different governmental entities to prosecute a person for the same actions and to impose independent sentences for the same crime. Each state and the federal government are all different “sovereigns.”
“[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each,” the court wrote.
He pleaded guilty in Alabama state court and served a one-year sentence for the offense. The Alabama US Attorney’s Office also charged Gamble with the same crime, involving the same conduct, under federal law. Gamble challenged the charge as violating the Fifth Amendment’s double jeopardy protections and was denied in the lower courts. He reserved the right to appeal the denial and again pleaded guilty; he was sentenced to 46 months in prison, a punishment he is serving now and which was run concurrently with the state sentence.
Under the “separate sovereign” exception, different ruling entities don’t violate double jeopardy when prosecuting the same offense. But Gamble argues that this undermines the original intent of the Fifth Amendment and violates Supreme Court precedent holding that the double jeopardy clause applies to states via the Fourteenth Amendment’s incorporation principles.
Gamble vs. U.S. deals with the “separate sovereigns” exception to the double jeopardy clause and, if overruled, will allow a sitting president to pardon both federal and state-level crimes.