Is it double jeopardy when states try cases and then the feds do?

The Fifth Amendment to the U.S. Constitution contains the Double Jeopardy clause, which reads, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

The Double Jeopardy clause is meant, in part, to keep prosecutors from getting “two bites at the apple.” In other words, it is meant to keep prosecutors from using a first trial to find out the defense’s strategy and to iron out any difficulties before going forward with a second trial.

But what if the same behavior is considered a crime by the state and the federal government? Can each government get a “bite at the apple” by prosecuting the same defendant for the same event?

Under the current state of law, yes, they can. In the 1922 case of United States v. Lanza, the U.S. Supreme Court ruled that, since the states and the federal government are separate entities, actions taken by one cannot affect the rights of the other. This is called the “dual sovereignty” doctrine.

New case challenges the dual-sovereignty Double Jeopardy doctrine

The dual sovereignty doctrine considers the law from the perspective of the prosecutor, but the Fifth Amendment was written as a list of protections for criminal defendants. The Double Jeopardy clause itself makes no mention of the government’s rights; it simply prohibits defendants from being exposed to legal jeopardy twice for the same offense.

Wasn’t Terance Gamble exposed to jeopardy twice for the same offense? In 2016, he was convicted in federal court of illegal possession of a weapon. He had already been convicted in Alabama of illegal possession of the exact same weapon. The effect was to add years to his prison term.

The American Civil Liberties Union and other groups have filed a friend-of-the-court brief in Gamble’s case. They urge the Supreme Court to end the dual sovereignty doctrine.

To Gamble and similar defendants, it doesn’t matter that two separate, sovereign governments did the prosecuting. What matters is that they were prosecuted twice for the same offense.

The issue becomes more important as states and the federal government work ever more closely together. There is a great deal of overlap between state and federal law, which increases the threat of duplicative prosecutions. Moreover, joint task forces have been on the rise since roughly the 1970s. When two governments collaborate closely on the investigation, are they really acting as separate sovereigns?

The U.S. Supreme Court hasn’t revisited double jeopardy since 1969. Will it consider closing the dual-sovereignty loophole?