WASHINGTON – An unusual coalition of liberal and conservative Supreme Court justices may be ready to stop the federal and state governments from prosecuting suspects twice for the same crime.
If that sounds like a no-brainer, think again: The “dual sovereignty” exception to the Fifth Amendment’s double jeopardy clause enabled Mississippi to convict Edgar Ray Killen of murdering three civil rights workers in 1964 after federal charges didn’t stick.
It helped the federal government convict two Los Angeles police officers for the notorious 1991 beating of Rodney King after a county jury acquitted four officers of nearly all charges.
It helped federal officials win a guilty plea last year from a South Carolina police officer for the 2015 shooting death of Walter Scott, an unarmed black man, after a state jury deadlocked.
And it may even help special counsel Robert Mueller’s probe of Russian interference in the 2016 election. If President Donald Trump pardons former campaign chairman Paul Manafort for federal tax and bank fraud violations, Mueller could set his sights on state courts.
Stack those anecdotes up against the Fifth Amendment’s bar on double trouble “for the same offence,” however, and most legal analysts agree the Constitution may come out on top at the Supreme Court.
Paul Cassell, a law professor at the University of Utah’s S.J. Quinney College of Law, says defenders of federal and state overlap can cite “public policy exigencies of the moment.” But a bar against double jeopardy, he says, represents “core values.”
One crime, two punishments
The case to be heard Thursday is one of the most significant on the court’s thus far underwhelming docket. A ruling against the Trump administration, which is supported by 36 states, would upend 170 years of history and high court precedents dating back nearly 60 years.
It would provide a victory for Terance Gamble, who received a one-year prison sentence from Alabama and 46 months from the federal government for the same firearms offense in 2015. Two lower courts upheld the sentences, citing Supreme Court precedent.
Although the terms are running concurrently, Gamble won’t be released until 2020. Had the federal government been barred from a second prosecution, he would be a free man.
“The purpose of the double jeopardy clause,” his lawyers argue in court papers, “is to protect against this most ancient and basic of evils.”
Two years ago, the court ruled 6-2 that Puerto Rico could not prosecute a suspect following his federal conviction because the territory, unlike states, derived its power from the United States. But Associate Justice Elena Kagan, writing for the majority, said state sovereignty represented “the very bedrock of our union.”
Not so fast, Associate Justice Ruth Bader Ginsburg wrote in a concurrence, joined by Associate Justice Clarence Thomas. The pair suggested that the high court reconsider dual federal-state sovereignty in a future case.
“Ordinarily, a final judgment in a criminal case, just as a final judgment in a civil case, should preclude renewal of the fray anyplace in the nation,” Ginsburg wrote.
Complications for Mueller?
That view has plenty of proponents who argue that the double jeopardy clause prevents abuse by prosecutors. They say it helps in obtaining plea bargains because defendants cannot hope for a second trial.
What’s more, nearly half the states already have bars against double jeopardy. That’s important for Mueller’s prosecution of Manafort, because the special counsel would have to cite different illegal conduct to bring state charges on top of federal charges.
The government’s position, ironically, would help Mueller in the event of a Trump pardon. Clearing Manafort of federal tax charges would leave open the possibility of trying him on state tax charges.
“Even if Trump gave the broadest federal pardon to everybody, there would still be state statutes available,” says Adam Kurland, a law professor at Howard University School of Law, who wrote a friend-of-the-court brief on behalf of its Thurgood Marshall Civil Rights Center.
Jed Shugerman, a law professor at Fordham University School of Law, agrees that the facts and number of co-conspirators in the Mueller investigation make it likely that different charges can be brought in state and federal courts if the court bans identical prosecutions.
On the other side, the federal and state governments cite the nation’s federalist tradition, which empowers the states. If the justices block dual prosecutions, the Justice Department says, it could lead those convicted in the past to challenge “long-final convictions by whichever sovereign happened to go second.”
A coalition of states led by Texas cites examples of cases in which the second prosecution succeeded after the first did not, such as the Rodney King beating.
“Those concerns are not limited to instances of racial bias,” the states argue in court papers. “They could arise whenever there is the potential for jurors to be improperly influenced or swayed, as with prosecutions in cases of political corruption.”