There has been a lot of talk about double jeopardy after Paul Manafort was sentenced for federal crimes and New York followed up by bringing more than a dozen state felony charges against President Trump’s former campaign manager. The new state charges prevent Trump from simply pardoning Manafort for his federal crimes to get him out of serving jail time. Although the Fifth Amendment protects a person from multiple prosecutions, the separate sovereignty exception allows successive state and federal prosecutions.
The conversation is even more important now because the Supreme Court, in Gamble v. United States, is rethinking this exception. But this exception to double jeopardy affects many more people than just Manafort. Gamble, which will likely be decided in the coming months, involves a traffic stop in which a police search of Terance Gamble’s car revealed a pistol. Gamble had a prior felony conviction, making it illegal under both state and federal law for him to possess the weapon. After pleading guilty to the state charge, Gamble received a one-year sentence. However, a subsequent federal prosecution resulted in another 34 months to his prison term for the same crime.
Some liberals are concerned that if the Supreme Court overturns the separate sovereignty exemption in Gamble, Manafort may walk free. They should really be concerned, however, about how this exception acts as a massive hole in our criminal legal protections and puts many lives in danger. Predictably, this huge exception affects people of color the most — making an already biased criminal legal system that much more unforgiving.
To review, the Fifth Amendment states that, “No person shall … be subject for the same offense to be twice put in jeopardy of life and limb.” Essentially, once you’ve been tried for a crime, you can’t just be tried again if the prosecution fails to get a conviction the first time. The separate sovereignty exemption came along when the Supreme Court decided to adopt the point of view of the government instead of the accused when determining if double jeopardy had been violated.
From the perspective of the government, any new prosecution would still be their first bite at the apple. Indeed, the state could even argue that an individual’s singular act, which broke both state and federal law, is in fact two separate offenses — one against the state, and one against the federal government — each of which is justifiably punishable. This exception embraces the idea that the state and federal governments are separate sovereign entities, presumably deriving their sovereign power to try defendants from different sources and thus allowing each their own distinct interest in bringing a prosecution.
The separate sovereign exception has made an already cruel criminal legal system even more anti-defendant. The Double Jeopardy Clause is meant to protect defendants from endless harassment from a government which, despite having tremendous resources, fails to procure a conviction on the first go.
Today, with more than 4,500 crimes enumerated in federal statutes, there is increasing overlap between federal and state criminal law, allowing the government to more readily expend its first chance and drag the accused through multiple rounds of costly defense. Much of this criminal law overlap exists as a result of the war on drugs that has fueled massive increases in U.S. incarceration rates. This war on drugs disproportionately affects people of color, making the separate sovereignty exception to the Double Jeopardy Clause yet another avenue to fuel mass incarceration.
It is also highly unlikely that the separate sovereignty exemption reflects the true right that the Double Jeopardy Clause was originally designed to protect. For one thing, this exception assumes that we should take the perspective of the government. Here, the history behind our Constitution is instructive. The principle of double jeopardy derives from English common law practice where a prosecution by “any court having competent jurisdiction of the offence” would prevent a further prosecution by an English court. This included even foreign governments — a far cry from how the doctrine operates in the U.S. today. Indeed, even the text and location of the Double Jeopardy Clause can help us understand its true purpose.
Of course, the Fifth Amendment finds its home in the Bill of Rights which is, fundamentally, a collection of protections of individual liberty against the government. Additionally, the Clause itself emphasizes that no “person be … twice put in jeopardy of life or limb.” The Clause’s focus on persons, rather than governments, is telling.
Although the Fifth Amendment did not originally apply to the states, the subsequent passage of the 14th Amendment and its guarantee of due process incorporated these individual protections against the states as well. If incorporation means that the Fifth Amendment firmly represents an individual’s liberty, applied against both the states and federal government, why should we take the government’s perspective in deciding whether successive prosecutions are fair? In fact, the 14th Amendment led the Supreme Court to question legal doctrines, one by one, that were based in this principle of dual sovereignty, including Fourth Amendment rights against unreasonable searches and seizures and Fifth Amendment rights against compelled self-incrimination.
Of course, there are serious countervailing policy concerns should the Court decide to ditch its current view of the separate sovereignty exception. The most important of these has to do with the substantial federal interests implicated in civil rights cases. This concern was prominent in the aftermath of the Rodney King beating and, most recently, after the death of Eric Garner.
When state courts fail to hold state officials such as police officers accountable, the Department of Justice can come in to try to rectify that failure. Eliminating the separate sovereign exception could potentially threaten this important goal. However, the same 14th Amendment that incorporated the Fifth Amendment’s Double Jeopardy Clause against the states can offer a powerful tool for the federal government to assert its interests in prosecuting civil rights violations.
The 14th Amendment was designed to protect individuals from abuse by state officials. Section 1 of the 14th Amendment directly prohibits any state from “mak[ing] or enforc[ing] any law which shall abridge the privileges or immunities of citizens of the United States,” and Section 5 acts as Congress’s sword to enable criminal enforcement of Section 1. Legal scholar Akhil Reed Amar argues that this provision would still enable the federal government to pursue criminal prosecution in those cases where it would be necessary to vindicate individual civil rights.
This long exemption to double jeopardy is not only constitutionally misguided, but it has long empowered the government to subject marginalized communities to relentless double prosecutions. Despite the current media worries about what may happen to Manafort’s crimes if the Supreme Court undoes the separate sovereignty exemption in Gamble, this is not a liberal or conservative issue — it has aligned the voices of both Justice Ginsburg and Justice Thomas, the most liberal and most conservative sitting justices on the Court today, respectively.
The Constitution demands that we look past the current political moment to the fairness of the criminal legal system. The Fifth and Sixth Amendments guarantee fair trial rights to the accused. They include the prohibition against Double Jeopardy.