Gamble v. United States: Brief of Amici Curiae Criminal Procedure Professors

Abstract

Gamble v. United States is an invitation for the Supreme Court to reconsider the rule in double jeopardy law, which permits federal and state authorities to engage in parallel or successive prosecutions of the defendant for the offense. In this amicus brief — in support of petitioner — we urge the Court to abolish the dual sovereignty rule. The argument develops in four parts. First, we show that the rule clashes with the original understanding of the Double Jeopardy Clause, especially in light of its drafting history. Second, we argue that under the Court's own test (reaffirmed as recently as the 2015 term) for determining which sovereigns are, in fact, dual, the sovereignty of the federal government is best understood as derivative of — not separate from — the sovereignty of the states. Third, we explain why every policy rationale behind double jeopardy protection counsels against the dual sovereignty rule, particularly given the existence of other doctrines (most notably, the Blockburger same offense rule) that already limit the scope of double jeopardy protection in practice. Finally, we suggest that the key precedents appearing to bolster the dual sovereignty approach are, on scrutiny, weaker than many have assumed — and in some instances, may not support the rule at all.