Updates
July 2019

The Supreme Court issued its final opinions for the 2018–2019 term last Thursday, ending a session of heavily-watched decisions. In one of its last opinions of the term, the Supreme Court upheld the dual-sovereignty doctrine in Gamble v. United States, solidifying long-standing double jeopardy precedent and highlighting the danger of successive and dual prosecutions.

The double jeopardy clause prohibits an individual from being tried twice for the same “offence.” However, as the Court distinguished in its recent opinion, the double jeopardy clause does not protect an individual from being tried twice for the same conduct. This is precisely what happened to the defendant in Gamble. Gamble was first charged with, and eventually pleaded guilty to, violation of an Alabama state law prohibiting possession of a firearm by a convicted felon. During Alabama’s prosecution, federal prosecutors charged Gamble with a violation of the federal statute prohibiting possession of a firearm by a convicted felon. Gamble moved to dismiss the subsequent federal charge, saying it violated the double jeopardy clause. In affirming the Eleventh Circuit’s opinion, the Supreme Court held that the successive prosecution was constitutional under the dual-sovereignty doctrine. Specifically, the Court stated that under the dual-sovereignty doctrine, a crime charged under state law and a crime charged under federal law are not considered the same “offence” for double jeopardy purposes because they arise from separate sovereigns. The same rule applies to multi-state prosecutions.

Although the dual-sovereignty doctrine is not a new legal doctrine, Gamble represents the future of successive and dual proceedings. With more than4,500 federal criminal statutes, there is an expanding amount of overlap with state criminal law—increasing the risk of successive or dual prosecutions. Such risk is only magnified in instances where state prosecutorial priorities are incongruent with federal prosecutorial priorities. For example, the prosecution of marijuana offenses drastically differs at a federal and state level. This common ground between federal and state statutory regimes often leads to joint federal and state task forces, like those under the DEA, which results in highly cooperative investigations between the sovereigns and necessarily increases a defendants’ exposure to successive proceedings.

To curtail the abuse of successive/dual prosecutions, the Department of Justice included what is known as the Petite Policy in the Justice Manual. The Petite Policy only permits these sorts of prosecutions if there is a substantial federal interest that was demonstrably unvindicated by the state prosecution. In addition, the Assistant Attorney General must approve any such prosecution. While the Petite Policy does protect potential defendants against dual/successive federal prosecutions, it does not apply to dual/successive state prosecutions. In the same vein, the Petite Policy only applies to federal charging decisions, not to investigations.

These realities, combined with the Gamble opinion, highlight the significant risks that criminal defendants may face when subjected to dual/successive investigations or indictments. For instance, successive prosecutions run a high risk of incongruent outcomes. If a successive prosecution is permitted, a defendant who is found not guilty in a federal prosecution could still be tried and convicted in a state prosecution later on. Such proceedings can also negatively impact sentencing. If a defendant cooperates and pleads to a state charge to receive a lower sentence, the federal prosecutor can include that prior conviction when sentencing a substantive federal conviction for the exact same conduct. Successive or dual proceedings can also weaken a defendant’s plea negotiation. In successive prosecutions, prosecutors often have access to more information about defendant’s bargaining tactics and limitations, not to mention access to a greater pool of evidence from their state or federal counterpart. Finally, successive or dual proceedings inevitably lead to delayed and time-consuming investigations and trials, resulting in more expensive and exhausting defense efforts.

While successive or dual proceedings remain a threat after Gamble, those under criminal investigation or indictment benefit greatly from qualified and continuous legal representation. Defense attorneys can obtain non-prosecution agreements, negotiate simultaneously with state and federal governments in reaching a comprehensive plea, and prevent unnecessary surprise.