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Dec. 4, 2018 / 9:28 AM GMT
By Pete Williams
WASHINGTON — The U.S. Supreme Court hears a challenge Thursday to its long-standing rule that putting someone on trial more than once for the same crime does not violate the Constitution’s protection against double jeopardy.
The Fifth Amendment says no person shall be “twice put in jeopardy of life or limb” for the same offense, and most Americans are familiar with the term double jeopardy. But for more than 160 years, the Supreme Court has ruled that being prosecuted once by a state and again in federal court, or the other way around, for the same crime doesn’t violate the provision because the states and the federal government are “separate sovereigns.”
The case has attracted more than the usual attention because of the prospect that President Trump might pardon Paul Manafort, who faces prison time for violating federal fraud laws. A presidential pardon could keep him out of federal prison, but it would not free him from being prosecuted on similar state charges. Overturning the rule allowing separate prosecutions for the same offenses, however, could work in his favor.
Thursday’s case involves an Alabama man, Terance Gamble, who urges the justices to overturn those earlier decisions. Convicted of robbery in 2008, Gamble was pulled over seven years later for a traffic violation. Police found a handgun in his car, and he was prosecuted under Alabama’s law barring felons from possessing firearms.
Then the local U.S. attorney charged him with violating a similar federal law. Because of the added federal conviction, Gamble’s prison sentence was extended by nearly three years.
His lawyer, Louis Chaiten of Cleveland, says the nation’s founders understood the protection against double jeopardy to ban any second prosecution for the same offense. Under English common law, the roots of American law, there was no “separate sovereigns” exception. A person could not be put on trial in England if already tried for the same offense in another country.
Chaiten also argues that the states and the federal government are not truly independent anyway and are instead part of a complete national system. He quotes Alexander Hamilton, who described them as “kindred systems, part of one whole.”
Congress has made the problem worse by dramatically expanding the number and scope of federal laws in recent years, Chaiten says, creating more duplication with state laws — something never envisioned in earlier court decisions that allowed double prosecutions.
But the Trump administration says past double jeopardy rulings allow the states and the federal government to pursue distinct interests without interfering with each other. Changing the current understanding by barring subsequent prosecutions would allow foreign court actions to preclude U.S. trials for crimes against Americans.
Besides, the Justice Department says, the Fifth Amendment bars more than one prosecution for the same offense, which refers not simply to a criminal act but also to breaking a specific law. Because state and federal laws differ, subsequent prosecutions don’t violate the double jeopardy provision.
Though Gamble is asking the justices to abandon more than a century’s worth of decisions, he has a chance of prevailing. Lower courts ruled against him, because they were bound by Supreme Court precedent. But the fact that the court agreed to take his appeal is a sign in his favor.
His argument also appeals to some of the court’s liberals and conservatives. Two years ago, Justice Clarence Thomas joined Justice Ruth Bader Ginsburg in saying that the court’s past double jeopardy rulings were due for a “fresh examination.”
The court was originally scheduled to hear the case Wednesday, but Chief Justice John Roberts issued an order closing the court that day in observance of the national day of mourning for George H.W. Bush. The justices will issue their decision by late June.
