A man has been sentenced to jail twice for the same offense – possessing a gun following a felony conviction – and now a legal team of civil rights experts is urging the Supreme Court to end the practice.
Terence Gamble was stopped by police in 2015 while driving with a faulty headlight.
A search of the vehicle turned up a handgun, and since he had a felony, 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. He raised the Fifth Amendment ban on double jeopardy, but the federal court rejected the argument, sentencing him to 46 months in prison.
The sentence technically was allowed because the Supreme Court has created an exception to the double jeopardy rule, allowing successive prosecutions by “separate sovereigns.”
But now it’s time for the practice and precedent to go, argues the Rutherford Institute.
“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 be[en] acquitted by a jury for that same crime,” said Rutherford President John Whitehead.
“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 Fifth Amendment requires that no one shall “be subject for the same offense to be twice put in jeopardy of life or limb.”
Whitehead explained the amendment represents 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.”
The dual trials by state and federal prosecutors were allowed, however, because of the high court’s precedent, dating back more than a century, that the state and federal governments are separate.
The court should, contends the institute, overrule that 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.”
The friend-of-the-court brief explains that the supremacy clause gives the federal government a superior claim to the prosecution.
“In this situation, states must be procedurally preempted from prosecuting an individual when the same offense has been proscribed by the United States, as the state voluntarily ceded its general police powers pursuant to Article 1, [paragraph] 8 of the United States Constitution, the Supremacy Clause, and the 14th Amendment.”
The brief says the Constitution “makes a single sovereign responsible for maintain a comprehensive and unified system to prosecute infractions against the United States when Congress has chosen to proscribe conduct pursuant to its enumerated powers.”
“When Congress does not choose to proscribe this conduct, the states’ police powers remain unencumbered.”