It’s Time to Close a Loophole in the Constitution’s Double Jeopardy Rule

Update: On Dec. 6, 2018, the Supreme Court hears oral argument in Gamble v. United States, which seeks to eliminate the so-called “dual sovereignty” exception to the Double Jeopardy Clause.  The ACLU and ACLU of Alabama co-authored an amicus brief with the Cato Institute and Constitutional Accountability Center to support Mr. Gamble and close the unconstitutional loophole. Other amici from across the ideological spectrum, including Sen. Orrin Hatch (R-Utah) and the National Association of Criminal Defense Lawyers, agree with ACLU’s position.

The Double Jeopardy Clause of the Fifth Amendment states that no one can be tried more than once for the same crime. The clause is designed to protect people from the danger of multiple prosecutions by overzealous prosecutors. Yet, since 1922, the Supreme Court has undermined this clause with an exception that allows state and federal prosecutors to bring separate charges for the same alleged crime. As a result, people can be prosecuted twice for the same offense — so long as the prosecutors are from separate “sovereigns.”   

This “dual-sovereignty” loophole should be closed. On Tuesday, the ACLU and ACLU of Alabama, alongside the Cato Institute and the Constitutional Accountability Center, filed an amicus brief in Gamble v. United States urging the Supreme Court to end the exception for good. The case involves Terance Gamble, who was convicted in 2016 by a federal court for weapons possession when he had already been tried and convicted in Alabama state court for the same exact crime. The federal conviction added years to his prison term.

For nearly a century, the Supreme Court has operated under the questionable logic that having state and federal prosecutors bring the same case against the same person for the same offense in two different jurisdictions somehow makes it permissible.

So, under the current rules, if a defendant like Gamble is found guilty in state court, federal prosecutors, whose criminal statutes generally carry far heavier sentences, can still pursue a second case and substitute their sentencing judgment for that of the state. Even worse, if a defendant is found not guilty in state court — meaning she is legally innocent — federal prosecutors can still prosecute. This is a betrayal of both the spirit and letter of the Double Jeopardy Clause, which was supposed to protect people from just such successive prosecutions.

The framers knew that to a defendant accused of a crime, it doesn’t matter who’s doing the prosecuting — only that it should not happen more than once. The Double Jeopardy Clause was derived from a British common law rule that applied to prosecutions by separate sovereigns. And developments over the last 50 years only support closing of the loophole.

First, in 1969, the Supreme Court made the Double Jeopardy Clause applicable to the states as well as the federal government. Therefore, no single state can prosecute a person twice for the same crime. Neither can the federal government. There is no reason to let them do together what they cannot do alone — prosecute a person twice for the same crime. The court has not revisited the dual-sovereignty exception since this development in 1969.

Second, with the ever-metastasizing federal criminal law — there are now over 4,500 federal crimes on the books — there is tremendous overlap with state law on everything from drug possession to tampering with an odometer. This greatly increases the threat of duplicative prosecutions for a vast and increasing amount of conduct.

Third, the use of joint state-federal task forces for investigating and prosecuting crime has been on the rise, roughly since President Richard Nixon initiated the war on drugs in the early 1970s. Under the aegis of these forces, state authorities may lose a case and then hand the file to federal prosecutors the very next day. This prosecutorial piggybacking undermines the claim that separate sovereigns occasionally need to investigate the same crime with separate interests. Often, they are simply prosecuting the same case, twice over.

It is true that the federal Justice Department has a standing policy discouraging such follow-on prosecutions. But that federal policy doesn’t stop state prosecutors from following federal cases with their own prosecutions. And in any event, we should not have to rely on the grace of federal or state prosecutors when it comes to fundamental rights. The Constitution bars double jeopardy, period.

Of course, a key question in this arena — debated vigorously in the wake of the Rodney King beating and Trayvon Martin killing — is whether elimination of the dual-sovereignty exception will hinder the ability of the Justice Department’s Civil Rights Division to rectify state court failures to hold police officers accountable by bringing federal civil rights prosecutions for the same incidents. This question matters greatly to communities of color reeling from unaccountable police abuse. It is also one the ACLU has wrestled with in the past. But we believe the answer in most cases is no. 

State crimes like murder and assault, which law enforcement officers sometimes commit, are generally different from the federal statutes the Justice Department uses to later prosecute those officers. If the criminal laws are different, the crimes would not be considered the “same offense,” and a second prosecution would not violate double jeopardy, which bars successive prosecutions only for the “same offense.” The Justice Department would often be free to prosecute if it believes justice was not done.

Moreover, the Justice Department and private citizens alike may — and should — institute civil actions against bad state and local actors and the offices that harbor them. And public pressure and the election of reform-minded prosecutors can help ensure that state prosecutions of police brutality and prosecutorial misconduct are done, and done right, the first time, obviating the need for a second trial. 

In other words, the right decision in Gamble would likely not let Rodney King’s or Trayvon Martin’s assailants off the hook. But it would save countless others from being on the hook twice for the same offense — a recurring injustice that is an affront to marginalized communities and the Constitution alike.

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Many, if not most, Americans today view the entire Justice System as a Kangaroo Court. It's no longer Equal Justice Under Law". Loss of faith in government institutions is extremely dangerous. Maybe the greater crisis is the loss our co-equal Independent Judiciary to "check & balance" the other two branches.


This loophole would let Rodney King's and Trayvon Martin's assailants off the hook, as it would protect them from criminal civil rights prosecutions.


I was too young to really keep up with the legal matters surrounding the Rodney King murders but the Federal Government, in 2015, closed the case against Zimmerman saying their wasn't enough evidence. I believe he's been in more legal trouble since then, though, so maybe he landed in jail for some of that.


police charged with assaulting Rodney King were acquited in state court. Riots ensued. Under much pressure,
Bush Justice Department prosecuted police in Federal Court on substantially same charges, relying on the dual sovereignties exception. Conviction.

At the time Federal prosecution began, some comment was made in the press (national review I believe) that the ACLU was abandoning its traditional opposition to the dual sovereignty exception. The term PC may not yet have been in vogue but that was a case-specific policy shift that triggered my first disillusionment with ACLU. Shameful acts by police defendants probably, but ACLU caved on policy shift.

Bad as first verdict was second (Federal) prosecution was the type of act the 6th was meant to prevent. By all means DS exception needs to go. Eliminate it before ACLU and others are tempted to weaken again.


This loophole should most definitely be closed. The Constitution should be upheld and this only undermines it. Double Jeopardy is just that. ACLU's position to close it is right on.


it is not double jeoprady.
Some crimes violate both state and federal laws. It makes sense you can face charges in both federal and state level. THe ACLU is wrong.


You concluded that the ACLU was right based solely on their own argument that they were right. I bet you don't have a problem with Meuller enlisting the States to prosecute the people he investigates if he fails to get Federal Convictions.

Robert E. Kilgore

Before we meddle with this rule, which I grant is inappropriate, let's fix another legal mess which depends on double jeopardy for possible justice. Trump is in position to pardon current malefactors, or to be pardoned by his successor if he is removed from office for crimes against the United States. Currently, as many potential charges as are appropriate are being charged by New York State as well as the federal government, to prevent the "get out of jail free" conundrum being proposed by Republicans for federal crimes.

Republicans have availed themselves of every conceivable loophole to gerrymander, suppress voting, etc. throughout "The Trump Cycle". It's time to do some work on our legal infrastructure as well as our physical infrastructure in the rotting USA.


I am not convinced that closing the "loophole" would not lead to states quickly trying people to protect them from federal prosecution and then either not trying very hard to get conviction and/or imposing a much lighter sentence. As the article acknowledges the expansion of federal criminal law is substantial, and that means there will often situations where the actions involved the same "offense."


This is my concern as well. Seeing how partisan some states have become, what is to stop a friendly state prosecutor from charging someone of a crime and intentionally doing a bad job or prosecuting the case to protect a wealthy/powerful person? Are corruption charges different enough to bring them to court at a Federal level? I know the State must have jurisdiction first, but that is still a major loophole.


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