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Double Take on the Fifth Amendment

The Supreme Court heard arguments in a fascinating case about state and federal punishment.

Robin Smith · Dec. 10, 2018

A Supreme Court case is getting a great deal of attention in part because it would be contrary to 170 years of precedent and practice. But more attention-getting, it may have an impact upon Robert Mueller’s case involving Paul Manafort in the vastly overreaching special investigation to determine the extent of Russian interference in the 2016 election.

Oral arguments were heard Thursday in Gamble v U.S. The case involves an Alabama man who was arrested in 2015 for crimes that involved the illegal possession of a handgun. Terrence Gamble, a felon who had already served time in prison for a separate crime, faced both state and federal charges for this second failure to observe laws. The State of Alabama sentenced Gamble to one year in prison while an additional federal charge yielded a 46-month sentence on top of that. Gamble appealed this second sentence to the Eleventh Circuit Court, citing the Fifth Amendment.

The relevant text states, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Known more often for “pleading the Fifth” to avoid self-incrimination, the amendment, ratified with the original 10 in 1791, provides protections for citizens to prevent multiple trials for the same charge or offense. Specifically, one accused cannot be retried following an acquittal, following a conviction (without reversal on appeal), or after certain mistrials.

Gamble’s legal team argues that federalism is permitting the duplication of the conviction and the punishment on the same charge. Yet because American courts have both a state and federal structure, such dual prosecutions are frequent occurrences.

Each legislated body of law — one federal, the other state — governs the structure of the separate courts, their operations, jurisdictions, codes, regulations, and sentencing, and each is treated as a separated sovereign. Hence, the separate sovereigns doctrine permits the offense, in the case of Gamble, to have been acts against two separate sovereigns. Citing legal precedents in the appeals, in pre-Civil War era rulings the Supreme Court held to the standard of two different offenses. The Court, again, ruled in 1922 in United States v. Lanza that “an 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 Wall Street Journal’s analysis of this case further includes Heath v Alabama (1985), which notes, “An offence, in its legal signification, means the transgression of a law. Consequently, when the same act transgresses the laws of two sovereigns, it cannot be truly averred that the offender has been twice punished for the same offence.”

SCOTUSblog reviewed oral arguments and concluded that the “majority appears ready to uphold [the] ‘separate sovereigns’ doctrine.” That analysis offered a bit of a play-by-play description of arguments and verbatims of the justices and the arguing attorneys. The conclusion here was pretty simple: It’s doubtful that the 170-year practice and precedent will be overturned. Yet Justices Ruth Bader Ginsberg and Clarence Thomas spoke in favor of a review of the doctrine. Ginsberg has previously suggested a reconsideration of the sovereigns doctrine, while Thomas voiced support of a “fresh examination” of the almost two-centuries-old legal practice.

Interestingly, all nine of the justices come from Ivy League law schools, where the discussion of double jeopardy is not a new one. Writings such as the Note from The Yale Law Journal, November 2014 edition, strain to separate the question to argue the duplication of punishment: “When the interests of a sovereign state are partially vindicated, the sovereign should be able to impart only as much additional punishment as is necessary to fully vindicate its interests.”

It’s almost amusing to see the mainstream media and the political Left arguing against the cause of a minority stopped for a traffic violation that resulted in a felony gun charge. Why? Because if the Court holds the current observance of the separate sovereigns doctrine regarding the Alabama man’s case, Paul Manafort, the former campaign chairman for Donald Trump who is likely to face charges by Robert Mueller’s federal team for everything except collusion with the Russians, would still likely face state charges on tax evasion or corporate fraud, despite a possible pardon from Trump. The Left can’t abide that.

The Supreme Court ruling is expected sometime in 2019. Based on opinions and analysis, it appears highly unlikely that such longstanding precedent would be overturned. Yet it is causing a double take on the Fifth Amendment and yielding some unlikely allies in wishing for a new look at an old doctrine.

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