Supreme Court says states can continue to prosecute for same crime as federal government

The case could have expanded the president's pardon power.

June 17, 2019, 12:10 PM

In a 7-2 decision, the U.S. Supreme Court on Monday has upheld an exception to the Fifth Amendment's ban on "double jeopardy," allowing a state and the federal government to each prosecute an individual for the same action if it violates both state and federal laws.

The case could have incidentally expanded the presidential pardon power by ending the exception, but the court did not take that step.

"We have long held that a crime under one sovereign's laws is not the 'same offence' as a crime under the laws of another sovereign," Justice Samuel Alito wrote in the majority opinion. "Today we affirm that precedent."

"It is difficult to conclude that the people who ratified the Fifth Amendment understood it to prohibit prosecution by a state and the federal government for the same offense," said Justice Clarence Thomas in a concurring opinion.

The Fifth Amendment to the Constitution says that "no person shall ... be subject for the same offense to be twice put in jeopardy of life of limb," or double jeopardy.

For more than 150 years, however, the Supreme Court has treated state and federal governments as separate -- each with a distinct set of laws that can each be enforced, even when there's overlap. It's known in legal circles as the "separate sovereigns" exception to the Constitution's protection against double jeopardy.

Justices Ruth Bader Ginsburg and Neil Gorsuch dissented in the case.

"When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is 'the poor and the weak,' and the unpopular and controversial, who suffer first -- and there is nothing to stop them from being the last," wrote Justice Gorsuch.

Ginsburg protested that "different parts of the 'WHOLE' Untied States should not be positioned to prosecute a defendant a second time for the same offense."

The decision is a loss for convicted felon Terance Martez Gamble of Alabama, who brought the case. Both state and federal authorities prosecuted him for the same 2015 gun offense. A state judge sentenced him to one year in prison and then a federal judge tacked on three more years. He argued the dual prosecution violated the Fifth Amendment.

Gamble will be behind bars until February 2020.

The case was also closely watched because of implications for presidential power. Presidents have the ability to issue pardons only for federal offenses. If the "separate sovereigns" exception was overturned, a pardon for a federal offense that is also a violation of state law could have potentially been applied to both instances.

President Donald Trump has suggested he might consider a pardon for his former campaign manager Paul Manafort who has been charged in New York state with mortgage fraud, but with Monday’s ruling, his pardon power for federal crimes wouldn’t extend to the state case.

By leaving the exception in place, the justices preserved ability of states to prosecute crimes for which an individual may have received a presidential pardon provided the action is also a crime in the state.

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