SLLC Files Supreme Court Amicus Brief in Double Jeopardy Case

In an amicus brief in Gamble v. United States, the State and Local Legal Center (SLLC) asks the Supreme Court not to overrule the “separate sovereigns” exception to the Double Jeopardy Clause. This exception allows states and the federal government to convict and sentence a person for the same conduct.

Gamble was prosecuted for and convicted of possession of a firearm by a convicted felon under both Alabama and United States law. His challenge to the “separate sovereigns” exception is unsurprising given that Justice Thomas joined Justice Ginsburg’s concurring opinion in Puerto Rico v. Sanchez-Valle (2016), which suggested the Court do a “fresh examination” of the “separate sovereigns” exception. These Justices are on opposite ends of the ideological spectrum and typically don’t vote together in close cases. 

In Sanchez-Valle the Court held that the Double Jeopardy Clause bars both Puerto Rico and the United States from prosecuting a person for the same conduct under equivalent criminal laws. Puerto Rico isn’t a sovereign distinct from the United States because it derived its authority from the U.S. Congress.

According to Gamble, the separate-sovereigns exception should be overruled because, among other reasons, it “flunks every test of constitutional interpretation.”

The United States responds that: “[a]n unbroken line of this Court’s decisions, whose origin reaches back nearly two centuries, has correctly understood the violation of a state law and the violation of a federal law as distinct ‘offence[s]’ under the Double Jeopardy Clause.“

The SLLC amicus brief points out that “Tenth Amendment and the federalism principles it enshrines have formed and shaped” the “separate sovereigns” exception. The brief also argues that a number of practical justifications support retaining the “separate sovereigns” exception. Specifically, eliminating it would “unfairly impact state and local prosecutors, who would remain politically accountable for law enforcement outcomes, despite being stripped of the ability to address those problems locally.”

Gordon D. Todd, Josh Fougere, Spencer Driscoll, Audry M. Klossner, of Sidley Austin wrote the SLLC amicus brief which the following organizations joined:  the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association, the National District Attorneys Association, and the National Sheriffs Association.