The Fifth Amendment's Double Jeopardy clause

The Fifth Amendment's second clause is known as the Double Jeopardy clause. And it provides "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." The Supreme Court has never read "life or limb" literally. The protection covers all felonies and misdemeanors. Stated simply, once you've been acquitted or convicted of a crime the government can't prosecute you again for that crime. Because we have a federal system of government, we have dual sovereigns: the national government and the state governments. This raises the question: if you are convicted or acquitted of a crime in state or federal court, can the other prosecute you for the same crime?

Until recently, this seemed to be a settled question. In 1922, the Supreme Court of the United States explicitly upheld the dual-sovereignties doctrine. In United States v. Lanza, SCOTUS held "we have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory." Under this doctrine, the fact that Lanza had been prosecuted under state law did not bar his subsequent prosecution by the federal government. The Court recognizes that each sovereign has different interests in making certain acts crimes and in deciding whether to prosecute crimes. Here, I'll detour from the question at hand to mention another important development in the law of double jeopardy. 

Until 1969--unless a state constitution or state law prohibited it--a state could prosecute a person after an acquittal. In Benton v. Maryland, the state indicted Benton for larceny and burglary; the jury acquitted Benton on the larceny charge but convicted him of burglary. Because Benton's grand and petite juries were selected under an invalid law, his case was remanded to the trial court. Benton exercised his right to be indicted and tried all over again. The state indicted him on the burglary charge and decided to take another shot at the larceny count too. The case worked its way to SCOTUS where the Court held that the Fifth Amendment's double jeopardy clause applied to the states. Thus, Maryland couldn't retry Benton on the larceny charge because of his acquittal. Now, back to the dual-sovereignties question.


In Abbate v. United States, the defendants asked SCOTUS to overrule Lanza and abandon the dual-sovereignties doctrine. The defendants were convicted in Illinois for violating an Illinois statute that made it a crime to conspire to destroy the property of another. Abbate and his confederates met in Chicago as part of a conspiracy to bomb South Central Telephone & Telegraph facilities in Mississippi, Tennessee, and Louisiana. Abbate and his fellows changed their minds and did not go through with the bombing. But it was too late to avoid prosecution for conspiring to bomb the facilities. They pleaded guilty to state charges in Illinois and got sentences of three months each. Not to be outdone, the federal government indicted Abbate and friends in Mississippi. And this set in motion the failed effort to convince the Supreme Court to overrule Lanza. There have been other attempts by those convicted in state and federal courts and those convicted in the courts of two states to convince the Court to abandon the dual-sovereignties doctrine. These attempts have failed. On December 6, 2018, the Court heard arguments in the most recent attempt: Gamble v. United States.

Our friend Gamble was convicted of second degree robbery in Mobile County, Alabama, in
2008. This made Gamble a felon. Both state and federal law make it a crime for a felon to possess a gun. In 2015, Gamble was driving in Mobile with a burned out headlight. He was stopped by a police officer who smelled--you guessed it--marijuana. This led to probable cause to search Gamble's car, and the officer found two baggies of marijuana, digital scales, and a 9mm handgun. Alabama indicted Gamble for violating state law. An eager beaver in the U.S. Attorney's office saw a chance for an easy indictment and quick conviction so the U.S. Attorney could issue a press release about its war on drugs. Double jeopardy was Gamble's only objection to his federal indictment. The district court and the Eleventh United States Cirucuit Court of Appeals rejected Gamble's argument because of the dual-sovereignties doctrine. This led Gamble to ask SCOTUS to review his case. It only takes four justices for the Court to accept the case but five to win. 

The majority of the justices don't seem open to Gamble's arguments in favor of abandoning the dual-sovereignties doctrine. There is concern that this would prevent the United States from prosecuting criminals in the United States if they are acquitted in another country. And it would create a lot of unanswered questions, e.g., which foreign courts will the court apply double jeopardy to and which will it not? There are likely only two justices who will vote to abandon the dual-sovereignties doctrine: Ginsburg and Thomas. In Puerto Rico v. Sanchez-Villa, the Court held that the doctrine did not apply to Puerto Rico because Puerto Rico derives its power from Congress. Therefore, you can't be prosecuted by Puerto Rican authorities and then by the federal government or vice versa. Justice Ginsburg concurred in the decision, but in her concurring opinion she urged the Court to take another look at the dual-sovereignties doctrine; Justice Thomas joined her concurring opinion. Perhaps Gorsuch will join Ginsburg and Thomas, but 6 > 3 so Gamble will lose and the dual-sovereignties doctrine will continue.  

Tell President Trump that Alexander Acosta must go!

This week I read The Miami-Herald's investigative work on Jeffrey Epstein. You can read the articles here, here, and here. These articles detail the horrendous nature of Epstein's criminal acts.  Epstein is a rapist, sex trafficker, and connected politically. (Epstein's connections are to both parties.)  Local law enforcement in Florida investigated Epstein for various sex crimes and discovered that his crimes were probably more than local officials could handle. Because the local prosecutor wasn't being real helpful, the local investigators asked the FBI for help. And together they were able to build quite a case against Epstein. The problem, however, was Alexander Acosta. He was the United States Attorney in charge of the case. 

Acosta cut a deal with the politically connected Epstein. Acosta, in violation of Department of Justice rules, kept the many victims in the dark about this deal. He didn't want them coming to court and persuading an ineffective federal judge not to approve the deal. Under the non-prosecution deal Epstein would serve 18 months in a local jail. With Epstein's connections, he was able to leave jail everyday for six hours "work" at an office that Epstein kept nearby. Epstein's victims were sacrificed by Acosta on the altar of politics. Yes, the prosecutor, who was supposed to seek justice, failed them. 

Today, Acosta is serving as the Secretary of Labor. It is disappointing that the Senate, despite knowing about this, consented to the nomination. What message does this send to the victims? 

Crime victims in general and sex-crime victims in particular must be able to trust that prosecutors will do their jobs. But here the victims learned a lesson as old as humankind: nothing trumps political connections. And the young men and women building political connections will learn from this that by sacrificing honor and integrity you too can get a plumb political appointment. 

Write your Representative and Senators and demand that Congress conduct an investigation into this matter.