It was 45 years ago, but I still remember sitting in my law school criminal procedure class feeling deeply disturbed. At issue: The Supreme Court’s decision that a person could be tried, convicted and sentenced twice for the same criminal act – first in a state court and then again, in federal. How possibly, I wondered, could two sequential prosecutions for the same criminal act not violate the Fifth Amendment prohibition against double jeopardy which provides, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb?” I wished the case had been decided differently.
But my initial misgivings about this case may soon be vindicated. The Supreme Court could change the rule – albeit with consequences that were unimaginable then or for that matter any time prior to the pre-Donald Trump, Neil Gorsuch, and Brett Kavanaugh era. Here’s the story.
With Prohibition in full force, Vito Lanza was prosecuted and convicted of violating the Prohibition Act of Washington state and then prosecuted in federal court for the same acts, in violation of the National Prohibition Act. Lanza’s claim of a double jeopardy prohibition went before the Supreme Court in 1922. He lost. Citing cases going back to the 19th Century, the Supreme Court held that, “An act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.”
Since 1922, the Supreme Court has not changed its mind about its perceived wisdom of its holding in Lanza. Indeed, the court has pretty much enshrined this exception to the double jeopardy prohibition into our constitutional jurisprudence, affirming the holding both in 1959 and again in 1985.
In the 1985 case, the high court held that a person could be convicted by two different states of the same murder of one person as long as some part of the homicide was committed in both states. In Georgia, in exchange for his guilty plea, the defendant received a life without parole sentence. Later in Alabama he was sentenced to death.
Fast forward to 2016 when the Supreme Court, in Puerto Rico v. Sanchez Valle, held that Puerto Rico’s Commonwealth status meant that the federal government and Puerto Rico were one entity for purposes of criminal law, and therefore the doctrine of separate sovereigns “did not apply.” In making this ruling, the Court accepted the continued viability of the separate sovereigns doctrine. Here comes the amazing part:
In that case the most unlikely pairing of justices, Clarence Thomas and Ruth Bader Ginsburg, wrote a joint concurring opinion. (A concurring opinion means the justices agreed with the result but had more to say.) What they said was that the dual sovereignty theory should be revisited by the court, clearly indicating that they would overrule it if they had the chance and the votes.
They are about to have that chance, and they may well have the votes. This term the Court will decide the case of Terance Gamble, who was pulled over in 2015 for a broken taillight and subjected to a police search of his car, which yielded marijuana paraphernalia and a firearm. Gamble was convicted in state court and then indicted in federal for essentially the same crimes. Gamble’s challenge to his indictment, on double jeopardy grounds, brings before the Court the precise challenge to the dual sovereigns rule that Justices Ginsburg and Thomas had invited.
Gamble may well win. The liberal justices presumably would vote to reject the exception to the double jeopardy guarantee. And the other justices, notwithstanding their law and order bent, could well say they find nothing in the text of the Fifth Amendment that allowed this exception to be judicially created in the first place.
Back to unintended consequences. This doctrine of dual sovereigns has been accepted as settled law. “Settled law” is the phrase that Brett Kavanaugh used to describe Roe v Wade when he met with Maine’s Republican senator Susan Collins, a characterization that she says she construed to mean that Kavanaugh would not disturb Roe. However, as New York Senator Chuck Schumer pointed out, a case is settled law only until it is unsettled
In theory, the Supreme Court doesn’t overrule its own precedents just because a new justice has political beliefs and a judicial philosophy at odds with the person he replaced. Rather there needs to be some special reason to reverse a prior decision based on considerations of a change in underlying facts and legal doctrines and weighing whether the rule has worked and the public has relied on it. As a practical matter, however, the court can change any law it wants for any reason a majority of justices deem sufficient.
The pending double jeopardy case, which should overturn the precedent, unfortunately could supply Donald Trump with get-out-of-jail-free cards to hand out to his friends and cronies. That’s because Trump advisers convicted under federal law and later pardoned by the President would – under the new jeopardy law – enjoy immunity from state prosecutions. In addition, that new decision could well provide an updated roadmap for reversing prior cases and a basis for gutting precedent that we once thought had enshrined fundamental rights, including Roe v. Wade.
Memo to self: Careful what you wish for.
William Newman is a western Mass. civil rights lawyer.