In today's orders list from the "clean-up conference," the U.S. Supreme Court took up three criminal and related cases for briefing, argument, and decision next term. The cases and their Questions Presented (as drafted by the party asking the Court to take the case) are:
No. 17-646, Gamble v. United States: "Whether the Court should overrule the 'separate sovereigns' exception to the Double Jeopardy Clause."
No. 17-1174, Nieves v. Bartlett: "In Hartman v. Moore, 54 7 U.S. 250 (2006), this Court held that probable cause defeats a First Amendment retaliatory-prosecution claim under 42 U.S.C. § 1983 as a matter of law. Does probable cause likewise defeat a First Amendment retaliatory-arrest claim under § 1983?"
No. 17-532, Herrera v. Wyoming, "Whether Wyoming's admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians' 1868 federal treaty right to hunt on the 'unoccupied lands of the United States,' thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family."
I don't view the separate sovereignty rule as an "exception" to the jeopardy clause, but a holding that it is applicable to multiple prosecutions brought in the name of the same sovereign --the People of a State, or the United States. Given stare decisis principles, I'm a little surprised they took this. Shows what I know!
I agree. Rules commonly described as "exceptions" are often, on closer examination, better considered as definitions of the limits of the main rule.
There are some serious issues with the idea that double jeopardy would bar prosecution by two sovereigns.
First of all, what is the "same offense"? Federal crimes and state crimes don't line up typically.
Second, how can the actions of one sovereign bar an action of the other?
Just seems "Too hard."
If "same offense" is understood as same act it makes sense.