Federal and State Governments are ‘Separate Sovereigns’.  If they Prosecute a Person for the Same Act, is that UnconstitutionalDouble Jeopardy’?

Double Jeopardy and the Fifth Amendment

The Fifth Amendment to the United States Constitution includes the so-called Double Jeopardy Clause, which prohibits the government from trying a person twice for the same crime.  For example, if the federal government put a defendant on trial for a federal crime and a jury found him not guilty, the government could not then put him on trial again for the same crime.  Putting a person on trial again for the same crime would constitute “double jeopardy” and is unconstitutional.


The Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

What about crimes that violate state and federal laws?

Because of federalism there are both federal and state laws in the United States.  As a result, a single unlawful act committed by a defendant could violate both federal and state laws.  For example, if a person robbed a bank, that one robbery could potentially subject him to prosecution in federal and state court.  But if a state puts a defendant on trial for committing a crime, could a federal court try that defendant for the same activity?  Would that be unconstitutional?

The Separate Sovereigns Exception

In 1922, the Supreme Court held (consistent with a line of cases dating back to the mid 1800s) that the Double Jeopardy Clause does not apply to successive prosecutions by state and federal governments.  That is, if a person commits a single act that violates both state and federal laws, he has committed two offenses.  His single act offends the laws of two separate sovereigns – – the state government and the federal government.  This ‘separate sovereigns’ exception means that the federal government can prosecute the person for violating federal law, after the defendant has been tried by a state court, without violating the Fifth Amendment’s Double Jeopardy Clause.


Gamble v. United States: Asking the Supreme Court to Overturn the Separate Sovereigns Exception

This year a defendant is asking the Supreme Court to overturn the separate sovereigns exception.  The appellant is a felon who violated both Alabama state law and federal law by owning a pistol.  After pleading guilty in federal court, the defendant appealed to the Eleventh Circuit Court of Appeals, arguing that the Double Jeopardy Clause prohibited the federal government from prosecuting him for the same act for which the State of Alabama already prosecuted him.  The Eleventh Circuit denied the appeal, stating that the ‘separate sovereigns’ exception is binding precedent of the Supreme Court.

The defendant is now asking the Supreme Court to overturn its own precedent, and hold that successive prosecution by state and federal governments is unconstitutional.

Get a Civ Pro Quiz Ebook!

101 Civ Pro Questions and Explanations

United States Law: An Introduction for International Students