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Can the State and Federal government prosecute same crime under the Double Jeopardy Clause?

Does Double Jeopardy bar prosecution for the Same crime in Federal and State Court?  A series of petition for certiorari before the United States Supreme Court ask the Court to address whether the Double Jeopardy Clause bars either the State or Federal Government from prosecuting a person for the same crime when the other entity has already convicted the individual.

The Double Jeopardy Clause of the Fifth Amendment states that no person shall be subject for the same offense to be twice put in jeopardy life or limb.  The Clause does not distinguish between State versus federal government.  The United States Supreme Court has interpreted this clause as not barring prosecution in State and federal court on the theory that each is a separate sovereign entity.  The three petition for Certiorari all ask the Court to revisit this doctrine.

In support of the petition in Gamble v. United States, the defense argues that at the time of the court decision in it was very rare to have both federal and state prosecutions, but with the expansion of federal law, dual prosecutions have become more common. The dual sovereign doctrine was formed in cases from the 1800s and was reaffirmed in a case called Bartkus v. Illinois, 359 u.S. 121 (1959).  The defense points to the concurring opinion of Justice Ginsburg and Justice Thomas in Puerto Rico v. Sanchez Ville, 136 S.Ct. 1863 (2016) suggesting that the doctrine should be revisited as reason for the Court to grant certiorari.

In its petition, the defense lawyer in Gamble argued that its case was the ideal case to address this issue because other petition present the case with a more complex procedural history.  The defense in Gamble argued that when the Court incorporated the Double Jeopardy Clause as applicable to the States in 1969, the separate sovereign doctrine is now logically inconsistent.  You can read the filing in the Gamble case on the Scotus Blog.

The defense argues that a plain reading of the Fifth Amendment Double Jeopardy Clause would bar more than one prosecution for the same crime regardless of if its by a different sovereign, state or federal government.

There are several other petitions that raise this same issue, which are also featured on the Scotus Blog: Ochoa v. United States and Tyler v. United States.  I would expect the United States Supreme Court to grant certiorari in one of these cases or join all three and address this issue of Constitutional Law.  The petition in Gamble has a complex procedural history so the court may prefer to grant certiorari in one of the other cases where the issue is more clearly presented.

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