Professor Kiel Brennan-Marquez Takes On Double Jeopardy

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Professor Kiel Brennan-Marquez Takes On Double Jeopardy
January 2, 2019

Professor Kiel Brennan-Marquez sees Gamble v. United States, a new double jeopardy case recently argued before the U.S. Supreme Court, as a chance to eliminate a longstanding misuse of the nation’s criminal justice system.

The case seeks to overturn the conviction of Terance Gamble on a federal charge of being a felon in possession of a firearm. When Gamble was charged by federal prosecutors—which ultimately resulted in an additional three years of prison time—he had already been convicted in Alabama for the same offense under state law.

Normally, the Double Jeopardy Clause prohibits successive prosecutions for the same offense. Yet such prosecutions are allowed under an exception known as the “separate sovereigns” doctrine, which exempts prosecutions carried out by different governmental entities—in Gamble’s case, the State of Alabama and the United States—from double jeopardy protection.   

Brennan-Marquez and three other law professors submitted an amicus brief to the Supreme Court in Gamble, arguing that the “separate sovereigns” exception, at least in federal-state cases like Gamble’s, should be overturned. Their argument is simple. The exception was not intended by the framers of the Constitution; it relies on an erroneous view of the relationship between federal and state power; all past cases supporting it are weakly reasoned; and perhaps most importantly, it is unnecessary to serve the government’s penal interests.

A better approach, they write, would be to focus exclusively, but also more stringently, on what counts as the “same offense.” When a criminal act gives rise to multiple charges—for example, a theft that involves both burglary and the illegal possession of a firearm—separate prosecutions should be allowed. But duplicative prosecutions should not, regardless of whether the federal government or a state government is the one bringing the charges.

Following that analysis would help curb what Brennan-Marquez referred to as “over-criminalization and overzealous prosecutorial decisions.” Furthermore, while the double prosecution and double sentencing of Gamble are unjust, the case of a defendant who is acquitted and then tried again would be even worse.

“Imagine,” Brennan-Marquez said, “if Mr. Gamble had exercised his constitutional right to a jury trial and been acquitted in Alabama, and the very next day, the federal government, unhappy with the result at trial, had decided to put him through the whole ordeal again.” When it comes down to it, he continued, “government currently has two arrows in its quiver”—the “same offense” principle and the “separate sovereigns” doctrine—“when it really should really only have one.”

The Supreme Court heard oral arguments in the case on December 6, 2018. Questions from the justices revealed some doubt about the dual sovereignty exception, but also concern about stare decisis, a principle that defers to the weight of precedent. A decision is expected by June 2019.

Brennan-Marquez co-wrote the brief with professors Stephen E. Henderson of the University of Oklahoma College of Law; George C. Thomas of Rutgers Law School and Michael J. Z. Mannheimer of Northern Kentucky University’s Salmon P. Chase College of Law.