The United States Supreme Court has granted Certiorari in the case of Gamble v. United States that raises the issue of whether the Double Jeopardy Clause precludes prosecution for the same offense by the federal and State Government.
The case of Terrance Gamble involves a 2008 conviction from Alabama where he was convicted of second degree armed robbery. Both federal and state law barred him from possessing a firearm. Gamble was found in possession of a handgun. He was prosecuted by both the federal and state governments for being a felony in possession of a firearm. The defendant moved to dismiss the federal indictment on Double Jeopardy Grounds, as the federal charge was taken out after the State case was already pending. Relying on the separate sovereign doctrine, the court denied the motion to dismiss. The defendant entered a conditional plea preserving this issue for review.
The defendant argued that the plain meaning of the Double Jeopardy Clause is that no person should be punished for the same crime twice. The defense argued that cases prior to the formation of the Constitution from England rejected the separate sovereign doctrine. The defense argued that the separate sovereign doctrine came about from a prohibition case, United States v. Lanza, 260 U.S. 377 (1922) that was driven by policy considerations with the court not looking into the original intent behind the Double Jeopardy Clause. The defense argued that the doctrine was wrong from the start and the Court was deeply divided when the doctrine was formed.
The defense argued that the separate sovereign doctrine was formulated on a theory that the Double Jeopardy Clause did not apply to the States. You can read the filings from the Gamble case on the Scotus Blog.
The defense argued now that the Double Jeopardy Clause has been incorporated; it warrants reviewing this doctrine.
The Double Jeopardy Clause provides in absolute terms that no person shall be twice put in jeopardy for the same offense. The defense points to a proposed amendment to the double jeopardy clause which would have made it less absolute by saying that it is limited to the Untied States Government, but that amendment was rejected.
The Double Jeopardy Clause was put into the Constitution and was derived from English Common law that followed the maxim that no person should be punished twice for the same crime.
I would expect the court to overrule the separate sovereign doctrine and find that the Double Jeopardy Clause precludes successive prosecution by the State or federal government. This reading of the Double Jeopardy Clause is consistent with the plain meaning of the clause. Further, given the expansion of federal criminal law, the separate sovereign doctrine is inconsistent with the Double Jeopardy Clause. I would expect the Supreme Court to reverse the federal conviction of the defendant in this case.