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On The Front Lines

Rutherford Institute Calls on Supreme Court to Uphold Ban on Double Jeopardy, Protect Citizens From Successive Prosecutions by Fed and State

WASHINGTON, DC — In an effort to reform the nation’s harsh and overly-punitive criminal justice system, The Rutherford Institute has asked the U.S. Supreme Court to fully enforce the Constitution’s ban on double jeopardy by overruling precedent allowing a single act by a person to be the basis for successive prosecutions by the states and the federal government, even if the person is found not guilty in the first trial. Weighing in on Gamble v. United States, Institute attorneys have asked the Court to overturn prior rulings that the “separate sovereigns” doctrine, which allows successive prosecutions by a state and the federal government, takes precedence over the Fifth Amendment’s Double Jeopardy Clause.

Attorney Elliott Harding of Charlottesville, Virginia, assisted the Institute in presenting the arguments in the Gamble amicus brief. 

“Despite the clear mandate of the Constitution against double jeopardy, we live in a country where a person can be tried for a crime a second time even after having being acquitted by a jury for that same crime,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “The time is long overdue for the courts to abolish the ‘separate sovereigns’ doctrine and protect the fundamental right to be free from multiple prosecutions for the same offense.”

The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb[.]” This prohibition embodies the fundamental principle that it is unfair and an abuse of power for the government to seek to put a person on trial for a criminal offense after that person has already been tried and acquitted (or convicted) of that same offense. However, in a series of cases dating back to the 1850’s, the U.S. Supreme Court has recognized that, because the states and the federal government are “separate sovereigns,” a person can be put on trial for an offense by the federal government even though the person was tried for the same offense in a state court. 

In 2015, Terence Gamble was stopped by police while driving with a faulty headlight, and a subsequent search of the vehicle turned up a handgun. Because Gamble had previously been convicted of a felony, his possession of the gun was illegal. He was tried and convicted in state court for illegal possession of a firearm and sentenced to one year imprisonment. While his state charge was pending, the federal government also charged Gamble with being a felon in possession of a firearm based on the same event that was the basis for his state court charge. Gamble raised the Fifth Amendment’s Double Jeopardy Clause as a defense to the federal charge, but the federal trial court ruled it was forced to reject the defense because of the U.S. Supreme Court’s “separate sovereigns” decisions. The federal court then sentenced Gamble to 46 months’ imprisonment, meaning that Gamble would be imprisoned for nearly three years more than he would have been if only the state sentence had been imposed.

In its amicus brief in support of Gamble, The Rutherford Institute urged the Supreme Court to overrule the “separate sovereigns” doctrine because it enables a system where federal and state prosecutors and law enforcement officers can work together against a defendant to apply overbearing institutional pressure.

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