Gorsuch and Ginsburg Join in on a Dissent
Article from Reason by Jacob Sullum.
Yesterday the Supreme Court declined to reconsider the “dual sovereignty” doctrine, which allows serial state and federal prosecutions for the same crime. Justice Neil Gorsuch dissented, arguing that historical evidence shows the practice is contrary to the original public understanding of the Fifth Amendment’s Double Jeopardy Clause. By parting company with all of his colleagues except Ruth Bader Ginsburg, Gorsuch shows once again that he does not hesitate to take a stand in defense of civil liberties and the rights of the accused, even when it means reversing longstanding precedent.
In Gamble v. United States, a man with a felony record who was prosecuted under both state and federal law for illegally possessing a gun argued that convicting and punishing him twice for the same offense qualified as double jeopardy. Seven members of the Court disagreed, citing the familiar but puzzling logic of the dual sovereignty doctrine: Since two “separate sovereigns” had criminalized Gamble’s conduct, it constituted two distinct offenses under the Double Jeopardy Clause. Notwithstanding appearances, then, he was not prosecuted twice “for the same offense.”
Gorsuch gives that dodge the respect it deserves. “The government identifies no evidence suggesting that the framers understood the term ‘same offence’ to bear such a lawyerly sovereign-specific meaning,” he notes. To the contrary, he says, British common law, the Fifth Amendment’s history, contemporaneous legal commentary, and early court cases all indicate otherwise.
“Viewed from the perspective of an ordinary reader of the Fifth Amendment, whether at the time of its adoption or in our own time, none of this can come as a surprise,” Gorsuch writes. “Imagine trying to explain the Court’s separate sovereigns rule to a criminal defendant, then or now. Yes, you were sentenced to state prison for being a felon in possession of a firearm. And don’t worry—the State can’t prosecute you again. But a federal prosecutor can send you to prison again for exactly the same thing. What’s more, that federal prosecutor may work hand-in-hand with the same state prosecutor who already went after you. They can share evidence and discuss what worked and what didn’t the first time around. And the federal prosecutor can pursue you even if you were acquitted in the state case. None of that offends the Constitution’s plain words protecting a person from being placed ‘twice…in jeopardy of life or limb’ for ‘the same offence.’ Really?”
Read the entire article at Reason.