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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I’d be ok with this if our current POTUS weren’t abusing his Pardon power...


To the person asking about impeachment, impeachment is a political remedy, not a criminal remedy. They are not related. If a president is impeached and then convicted by the Senate he is removed from office. That's it. There are not criminal penalties. He could then be tried in a criminal court. Your comment about Clinton is inaccurate (and confusing). Clinton was impeached by the House but acquitted by the Senate. The Supreme Court wasn't involved.


I always thought that what made something a crime was if it broke a law. A single action can break multiple laws and result in multiple charges. Federal laws are separate from state laws, so it would seem to be that they are separate crimes and it is not double-jeopardy.

Daniel Hoffman

I reread the Fifth Ammendment a couple more times this morning to make sure.
Is "life or limb" being put into double jeopardy?
The ACLU gave us money=speech and enabled the Ayn Rand side of its group enable billionaire sociopaths to take away our democracy under the guise of "freedom of speech".


However, based on your logic, an individual who commits a crime against the United States and is tried by his/her home country , if different from the USA, and found not guilty, could not then be tried by the US. They would constitute separate sovereigns. How would you deal with this situation?


What about a presidential pardon on the federal level, like trump with his buddies, nd then the states couldn’t go after the violators?


I have always had a problem with that! To me it's double jeopardy. Also how can civil court find a person guilty of wrongful death when found innocent of criminal charges.


This is tough. I can see the ACLU's position here. But I disagree.
The inherently impossible and paradoxical notion of 'shared sovereignty' is the absurdity engine that makes the whole thing work at all. It is the crux of the biscuit. The foundational myth - like Romulus and Remus being raised by wolves.
We have the feds to protect us against the states, and the states to protect us against the feds.
The ability of both 'sovereign entities' to launch their own actions against those who violate statutes is part of the price we pay for what's supposed to be a 'check and balance'. Can it be misused? Sure. so can 'qualified immunity', but that doesn't mean we throw it out the window entirely.

Senator Incitatus

How could this change adversely affect Indigenous populations?


The ACLU is WRONG on this one. Civil Rights has proven that states cannot be left to their local laws. This is not "double jeopardy" in the constitutional sense of the term. I would much rather have the authority to take action in place, with judicious application than have it eliminated and choice removed. Consider this: The ACLU and trump are on the same side! That should give you just reason for pause.


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