UPDATED 4:20 P.M. EST
WASHINGTON — The Supreme Court on Thursday appeared unwilling to overturn an exemption to the Fifth Amendment’s ban on double jeopardy that has allowed state and federal prosecutors to bring charges against the same individual for the same crime.
The case, Gamble v. United States, involved an Alabama inmate who sought to overturn his federal sentence for gun possession. He had previously been sentencing to one year in prison by an Alabama court for the same offense.
The Supreme Court, however, has long allowed a so-called “separate sovereignty exemption” to the double-jeopardy clause. Under the exemption, states and the federal government are recognized as sovereign, with its own unique right to prosecute and sentence a person, even for the same crime.
Associate Justices Ruth Bader Ginsberg and Clarence Thomas have signaled in previous cases a willingness to reverse the double-jeopardy exemption. On Thursday, however, most justices appeared uncomfortable with doing so.
“We have dual sovereigns,” Associate Justice Elena Kagan said, echoing a sentiment shared by others on the bench. “That means dual regulation. And dual regulation often means dual punishment.”
Kagan and other justices appeared reluctant in this case to reverse previous Supreme Court rulings, stretching back to the 1850s, that have upheld the separate sovereignty exemption.
“(T)his is a 170-year-old rule,” Kagan said, “and it’s a 170-year-old rule that’s been relied on by close to 30 justices … who have voted at one time or another specifically for this rule, not an application of this — but for this rule.”
Justice Stephen Breyer appeared concerned about the implications of overturning the exemption, specifically how it would affect the federal government’s check on state and local enforcement in civil rights cases.
Breyer pointed to amicus briefs filed with the court addressing that concern.
“There are briefs that say, ‘Remember the civil rights world where people were — with victims of a different race — simply killing them or worse,’ ” Breyer said, “and the state would just (say), ‘Ah, don’t worry, they’ll never convict.’ And they didn’t.”
Native American groups also have supported the double-jeopardy exemption, Breyer noted, because it allowed the Justice Department to prosecute domestic violence offenses on tribal lands.
On behalf of the plaintiff, attorney Louis Chaiten asked the justices to overturn the sovereignty exemption. Chaiten argued that the double-jeopardy protection was adopted from British law, where persons already tried for a crime in one country would not stand trial for the same crime in England.
That appeared to rub Justices Samuel Alito and Brett Kavanaugh the wrong way.
“Let’s say a group of American tourists are murdered by terrorists in a foreign country and there is a prosecution in the foreign country for murder … and it results in an acquittal or a conviction with a very light sentence,” Alito said to Chaiten. “(Is it) your position that there could not be a prosecution here in the United States under the statute enacted by Congress to permit the prosecution of individuals who murder Americans abroad?”
Chaiten downplayed Alito’s hypothetical scenario, but the implications concerned Kavanaugh.
“If prosecution is part of the national security efforts of the United States,” Kavanaugh said, addressing Chaiten, “then your position would substantially hamper those national security efforts.”
A ruling in the case is expected by the end of June 2019.