The Fifth Amendment to the U.S. Constitution includes a guarantee that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The U.S. Supreme Court decided by a 7 to 2 vote, announced on Monday, that this double jeopardy clause does not apply to an individual who is prosecuted for the same alleged criminal conduct in the courts of different sovereigns, including federal and state courts. In the case before the Court, the defendant had pleaded guilty to violating a state law against gun possession by someone previously convicted of “a crime of violence.” After his guilty plea to the state offense, federal prosecutors indicted the defendant for the same instance of gun possession under a federal law, presumably to exact a longer sentence than was imposed by the state court for the same thing.
Trump-haters are likely salivating because of this decision. They are relishing the prospect of Trump associates, pardoned in the future by the president for federal crimes, facing criminal trial in state courts for the same underlying criminal conduct, not to mention the increased jeopardy that Mr. Trump himself will face for his own alleged conduct after he leaves office. Even if he resigns before the end of his term so that Vice President Mike Pence can assume the presidency in time to pardon Mr. Trump for any federal criminal violations, he will still be subject to prosecution for state crime violations based on the same alleged conduct for which he was pardoned at the federal level. There are plenty of state prosecutors itching for the chance to put Mr. Trump in jail, egged on by Trump-hating Democrats and the media.
However, whatever impact the Supreme Court double jeopardy decision may have on Mr. Trump and his associates, the longer-term impact of the decision for Americans’ civil liberties should be of significant concern to all freedom-loving Americans. Under the Supreme Court’s reasoning taken to its extreme, an individual could be tried for the same criminal conduct at the federal level and in 49 states where he or she is repeatedly acquitted, but still found guilty in the 50th state so long as it has its own law covering the same conduct.
The majority opinion, written by Justice Samuel A. Alito Jr., reasoned that since the federal and state governments constitute separate sovereigns, each with its own separate law that may cover the same underlying conduct, each sovereign can prosecute for an “offence” against its own law. This is known as the separate-sovereigns doctrine. Justice Alito wrote that there was support for this conclusion from the text of the Fifth Amendment itself, and from the history surrounding the meaning of the word “offence” as it was understood under centuries-old English law and materials that were contemporaneous with the founding of the United States and the drafting of the Constitution. Most importantly, Justice Alito wrote, there was “a chain of precedent linking dozens of cases over 170 years” that have interpreted the Fifth Amendment’s double jeopardy clause as inapplicable to successive prosecutions for the same conduct at the federal and state levels of government.
The Court’s most liberal justice, Justice Ruth Bader Ginsburg, and one of the Court’s most conservative justices, Neil M. Gorsuch, filed dissents. Although Justice Clarence Thomas ultimately decided to side with the majority despite his earlier skepticism regarding the separate-sovereigns doctrine, he warned against giving too much weight to precedents if they were wrongly decided. This is one case in which the majority, including Justice Thomas himself, should have taken Justice Thomas’s advice and overruled the bad precedents rather than perpetuate them.
After noting that the double jeopardy clause of the Fifth Amendment protects individuals from being “twice put in jeopardy” “for the same offence,” Justice Alito wrote that “same offence” does not mean the same thing as “the same conduct or actions,” quoting from a dissent by the late Justice Scalia. What is more, Justice Alito argued, “the same offence” is a legal term that is “sovereign-specific.” Violations of a federal law and of a state law covering the same underlying criminal conduct are not the same “offence” because there are separate violations of separate sovereigns’ laws.
“As originally understood…an ‘offence’ is defined by a law,” Justice Alito wrote, “and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two ‘offences.’” Justice Alito devoted an inordinate amount of space in his opinion to reciting ancient history and Supreme Court precedent in support of this interpretation. However, Justice Alito has led himself and the majority of the other justices into a classic case of circular reasoning. Since he starts with the premise that an “offence” is defined as a violation of an individual sovereign’s law and the United States and each state are defined as separate sovereigns, he naturally concludes that successive state and federal prosecutions cannot properly place a defendant in “jeopardy . . . for the same offence.” The problem is that Justice Alito and the precedents on which he relied assume a definition of the single word “offence” as inherently sovereign specific, without any support for that proposition in the text of the Constitution.
Justice Alito could have avoided this circular reasoning and corrected the error of past precedents if he had not quoted the text of the Fifth Amendment referring to “Offences” in isolation. He should have considered it alongside the text of the president’s pardoning power in Article II, Section 2, which states that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” (Emphasis added) When the framers wanted to use the term “offence” in a sovereign-specific sense, they did so. Thus, the president could only pardon for “Offences against the United States,” not for “offences” against any sovereign state. However, the framers made no distinction in the text of the Fifth Amendment between a sovereign specific federal “offence” and a sovereign-specific state “offence” in the Fifth Amendment’s double jeopardy clause.
Justice Alito mistakenly analogized the question of successive federal and state prosecutions for the same underlying conduct to successive prosecutions in the United States and a foreign country. Surely, he argued, the United States should be able to prosecute an individual who killed a U.S. national in another country even if the other country goes after the same killer for committing an act of violence within its territory. “The murder of a U. S. national is an offense to the United States as much as it is to the country where the murder occurred and to which the victim is a stranger,” he wrote.
Justice Alito’s analogy of successive prosecutions by a foreign country and the United States for the same criminal conduct to successive federal and state prosecutions for the same criminal conduct within the United States itself is a bad analogy. In fact, it is irrelevant. As Justice Ginsburg noted in her dissent, the defendant in the case before the Court “was convicted in both Alabama and the United States, jurisdictions that are not foreign to each other.” The United States and its constituent states, Justice Ginsburg wrote, “compose one people, bound by an overriding Federal Constitution.” Citing Federalist No. 51, Justice Ginsburg added that “the division of authority between the United States and the States was meant to operate as ‘a double security [for] the rights of the people’… The separate-sovereigns doctrine, however, scarcely shores up people’s rights. Instead, it invokes federalism to withhold liberty.” She emphasized that the ultimate source of sovereignty in the United States lies with the people themselves. “Under our Constitution, the federal and state governments are but two expressions of a single and sovereign people,” she wrote.
Justice Gorsuch articulated a simple, common sense observation on the dangerous implications of the majority opinion. “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result,” he wrote. “Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy. My colleagues say that the federal government and each State are ‘separate sovereigns’ entitled to try the same person for the same crime. So if all the might of one ‘sovereign’ cannot succeed against the presumptively free individual, another may insist on the chance to try again. And if both manage to succeed, so much the better; they can add one punishment on top of the other.” Justice Gorsuch worried about “the capacity of the state to bring charges repeatedly until it wins the result it wants, and what little would be left of human liberty if that power remained unchecked.”
In this case, two justices from the opposite sides of the ideological spectrum reached what should have been the guiding rule for protecting individuals against unchecked multiple prosecutions for the same criminal act. They both sought to shield the Constitution’s protection against double jeopardy from a legalistic distinction without a difference. Unfortunately, the majority of the Supreme Court justices – liberals and conservatives – were not prepared to discard the patently unfair separate-sovereigns doctrine.