"Double jeopardy" was never in serious jeopardy.
As unfair as it may seem on the surface, the U.S. Constitution's prohibition against double jeopardy — being tried twice for the same offense — has survived a legal challenge.
In a decision issued Monday, the U.S. Supreme Court ruled 7-2 that trying an individual for what amounts to the same crime in both the state and federal courts is legally permissible because of the "separate sovereigns" principle. That means the 50 states and the federal government are independent of each other and compose dual jurisdictions.
These kinds of prosecutions are relatively rare. That does not, however, make it any easier for critics of the practice to swallow.
Justice Neil Gorsuch undoubtedly spoke for them when he wrote in his dissent, "A free society does not allow its government to try the same individual for the same crime until it's happy with the result. Unfortunately, the court today endorses a colossal exception to this ancient rule against double jeopardy."
The case involves an Alabama man — Terance Gamble — who was prosecuted in state court for being a convicted felon in possession of a firearm. He was convicted and sentenced to a year in prison.
Although it's unclear why, federal prosecutors charged Gamble with the federal version of the state offense.
He was again convicted, but this time was sentenced to 46 months in prison. The only break Gamble got was that the federal judge ordered his two prison terms to be served at the same time, not consecutively.
Still, the apparent unfairness of two trials, two convictions and two sentences was sufficient for Gamble's lawyers to target the practice as a violation of the constitutional prohibition against double jeopardy.
This issue does not involve the average person's concept of fairness. It raised a legal issue that has hundreds of years of precedent behind it.
Gamble lost challenges in the lower courts because the "separate sovereigns" principle valid law.
That did not mean, however, that the U.S. Supreme Court would again embrace it. But it did.
Justice Samuel Alito, writing for the court's majority, found Gamble failed to make a sufficiently persuasive case for overturning 170 years of precedents upholding "separate sovereigns."
Noting this is not just a matter of state and federal government in the United States, Alito pointed out that the issue could arise in matters involving the United States and a foreign government.
For example, when a U.S. citizen is murdered abroad, it's an issue both for the country where the murder occurred as well as for this country.
"That is why the killing of an American abroad is a federal offense that can be prosecuted by our courts, and why customary international law allows this exercise of jurisdiction," he wrote.
The issue generated a lot of paper.
Justice Clarence Thomas wrote a separate concurring opinion. Thought to be leaning toward striking down dual prosecutions, he concluded "the historical record does not bear out my initial skepticism of the dual-sovereignty doctrine."
Justice Ruth Ginsburg, like Gorsuch, wrote a separate dissent in which she challenged the majority's reliance on historical practice and theoretical discussions about murder abroad.
"Gamble was convicted in both Alabama and the United States that are not foreign to each other. English court decisions regarding the respect due to a foreign nation's judgment are therefore inapposite," she said.
While legally permissible, this practice by state and federal prosecutors is — and should be — rare. There may be those occasions when invoking "separate sovereigns" prosecutions makes sense, but only under strict guidelines that set out, as the legislature has done in Illinois, where, when and how.