Double jeopardy jeopardy

Friend DP notes a pending Supreme Court petition in Gamble v. United States. It looks like the case was supposed to have been presented at Thursdays conference.

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

If the court grants the petition and if the court rules in the petitioner’s favor this would be a big deal for military accused’s. As we know, there have been quite a few cases over the years (I’ve had a number of them) in which the client was tried in civilian court and the military wants another go at it. The general rule is that if tried in a state court or the District of Columbia that is a “separate sovereign” from the federal government. Petitioner’s brief begins:

The fact that Gamble’s sentences were imposed by separate sovereigns—Alabama and the United States—should make no difference. The courtmanufactured “separate sovereigns” exception—pursuant to which his otherwise plainly unconstitutional duplicative conviction was upheld—is inconsistent with the plain text and original meaning of the Constitution, and outdated in light of incorporation and a vastly expanded system of federal criminal law. For precisely these reasons, Justices Ginsburg and Thomas have called for “fresh examination” of the exception. Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1877 (2016) (Ginsburg, J., concurring); see also id. (“The [validity of the exception] warrants attention in a future case in which a defendant faces successive prosecutions by parts of the whole USA.”). And courts and commentators have agreed that the exception’s time has come.

A second petition on a similar issue appears to be pending.

Bearcomesout v. United States 17-6856 Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

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