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Tuesday, June 18, 2019

A Losing Gamble

Yesterday the Supreme Court reaffirmed the dual sovereignty exception to the Double Jeopardy Clause.  I think that the Court's decision establishing that exception (in 1959) was incorrect, but stare decisis weighed strongly in favor of retaining the rule as the Court did in Gamble v. United States. But I have two critical comments about the Justice Alito's majority opinion.

First, the Court worked very hard to say that Justice Bushrod Washington did not contradict the dual sovereignty exception in his opinion for the Court in Houston v. Moore. I believe that Justice Alito is simply incorrect on this point (as I'll explain in my book about Justice Washington) though the Court is right in saying that some of the subsequent cases mischaracterized Moore in the same way.

Second, the Court ignores the most obvious defense of the dual sovereignty exception. In egregious cvil rights cases (for instance, the state court acquittal of the police officers who beat Rodney King), there is a broad recognition that a federal prosecution for the same conduct may be necessary. The Supreme Court did not consider this point in 1959, as the Civil Rights Movement was still gathering its strength. Developments afterwards strengthened the rationale of the Court's opinion in Bartkus v. Illinois, or at least cut in favor of retaining that holding. 

Posted by Gerard Magliocca on June 18, 2019 at 10:36 PM | Permalink


I think it wrong too but I think it is wrong for the reasons best articulated by Justice Thomas: it is an atextual innovation. There is nothing in the text of the Constitution that supports duality and there is no evidence that anyone at the Founding even considered the matter. Add that with Justice Gorsuch's emotional plea and I don't even think this is a close call. I recognize that sometimes it is less important what the law says than it be settled but in my mind the mischief that is worked by dual sovereignty isn't worth the candle.

Posted by: James | Jun 19, 2019 10:46:20 AM

Very important indeed. Just worth to note, that the US, is party to the:

"International Covenant on Civil and Political Rights"

Ratified in 1992 ( and at the same year entered into force ) and the Covenant dictates in article 14.7 so, I quote:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

End of quotation:

So, one had to reconcile it with it. But more over, the relevant part in the fifth amendment states clearly, I quote:

"....nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;"

End of quotation:

So, the justices, emphasized offense ( as related to separate sovereigns ) but the constitutional provision, emphasizes also : " be twice put in jeopardy " that is to say, that not only the offense is at issue, but the very harm of being indicted twice ( this is the broad meaning of "jeopardy", not only in connection to offense, but the very derivative harms ). And indeed,just to quote justice Ginsburg ( dissenting ) here:

The Double Jeopardy Clause embodies a principle, “deeply ingrained” in our system of justice,“that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U. S. 184, 187–188 (1957).

One may reach the ruling here:



Posted by: El roam | Jun 19, 2019 7:56:43 AM

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