Under the Double Jeopardy Clause, neither the federal government nor a state government can try a person twice for the same offense. But if the same act is a crime under both state and federal law, can each government try the person once, for a total of two?
Longstanding U.S. Supreme Court precedent says yes. Today the high court reaffirmed the "dual sovereignty doctrine" by a vote of 7-2 in Gamble v. United States, No. 17-646. Justice Alito wrote the opinion of the Court. Justices Ginsburg and Gorsuch wrote separate dissents.
Successive prosecutions are fairly rare. They were used (properly, in my opinion) at the height of the civil rights struggle when KKK intimidation prevented the conviction of murdering Klansmen in state courts of the deep South. On the other hand, the doctrine was used as a simple do-over, exactly the abuse the Double Jeopardy Clause was intended to prevent, after police officers were acquitted in a fair trial in the Rodney King beating case.
States can reject the doctrine by statute. California has, which is why the Unabomber could not be retried and sentenced to death by California after the feds let him plead and receive a life sentence.
The doctrine is a mixed bag. It is subject to abuse, yet the old KKK cases should give us pause about dropping it altogether.
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