By Eric Allen Kauk*
On November 20, 2015, around 11:00 p.m. Terance Gamble was pulled over in Mobile, Alabama by a local police officer for having a busted light on his car. As the officer walked up to the car, he smelled marijuana, so he removed Mr. Gamble from the car while he searched the vehicle. The officer found a small amount of marijuana and a firearm. Marijuana is still illegal in Alabama, but the gun was the bigger issue for Mr. Gamble. In addition to numerous other legal issues, Mr. Gamble had been convicted of robbery 8 years earlier. So, having a gun in his car was conduct that violated both Alabama state law and the federal law that both forbid convicted felons from possessing a firearm.
In Gamble v. United States, the Supreme Court is deciding whether a person can be prosecuted under both federal law and state law for the same specific conduct. This is not a new question. Long-standing precedent in case after case says “yes.”
The Double Jeopardy Clause of the Fifth Amendment states: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .” However, for about 150 years, courts have regularly and repeatedly reinforced that a state government and the federal government can both prosecute an individual for singular conduct that that violates both state law and federal law. (Abbate v. United States, Heath v. Alabama, Puerto Rico v. Sanchez Valle, United States v. Dixon)
The rationale underlying these decisions is that the state and federal governments are separate sovereign entities, each deriving their authority from different groups of governed people. An individual state derives its sovereign authority from the citizens of that state, while the federal government’s power is granted by the citizens of the entire United States. Therefore, a single action or instance of conduct can be two “offence[s]” against the laws of separate sovereign entities: one offence against a state law and one offence against federal law. Since there are two offences, a person that is prosecuted by both state and federal authorities is not being prosecuted for the same “offence” and is thus not being put in “double-jeopardy.”
Although the “separate sovereigns” doctrine seems like settled law, the nine Supreme Court Justices took their time to consider Gamble’s case at 11 consecutive conferences before finally agreeing to hear the case. With so much precedent and such a long history, why did SCOTUS agree to consider Gamble’s case now? The numerous cases asking this same question is certainly an important reason, but the current political climate is likely not a coincidence.
Political pundits on the left and the right have postulated that if SCOTUS overturns the separate sovereigns doctrine at issue in Gamble, there could be high-profile effects. For example, Paul Manafort, Roger Stone, and potentially President Trump could be prosecuted at the federal level, and then pardoned by the sitting President, which would protect them from being prosecuted at the state level.
While this is certainly a concern, a more damaging issue must be considered: state governors abusing the power of the pardon.
If SCOTUS overturns the separate sovereigns doctrine, a state could prosecute an individual under state law and that state’s governor could pardon the individual—which would (under a conduct-centric interpretation of double jeopardy protections) then bar any subsequent federal prosecution. It’s also important to consider that the governors of most states enjoy absolute and unquestioned authority to grant pardons. With no limitations or oversight, such a massive expansion of state governors’ power to pardon could lead to unintended outcomes across the country.
This issue is not about Trump. Trump has granted only 7 presidential pardons out of 869 applications in the first 25 months of his presidency. This is a historically low rate of .8%, compared to Obama’s 212 pardons out of 3,395 applications (a rate of 6.24%). But, If SCOTUS overturns the separate sovereigns doctrine, we could see a “race-to-the courthouse” mentality across the country where a governor’s political allies can seek favor from a state pardon process that is already shrouded in mystery and rife with inconsistencies. By overturning the separate sovereigns doctrine, the Supreme Court could be granting completely unchecked pardon authority to state governors across the country.
*Eric Allen Kauk is a fully restored individual in his third year at Stetson University College of Law. He can be reached at firstname.lastname@example.org.