The Supreme Court recently, and for the first time in a hundred years, issued a definitive opinion on Double Jeopardy. A close reading, however, leaves an impression that the opinion was about more. As privacy issues (such as the “right” to an abortion) make their way back to the Court, this case may provide a road map as to how the Court may reach different conclusions than in the past.
But first the basics about Double Jeopardy.
In 1991 four LAPD officers were filmed using force to subdue Rodney King. The video convinced a large portion of the public that the force used was excessive and that Mr. King was beaten unnecessarily. Criminal Charges were filed against the officers in State court and, after a trial, they were acquitted. The acquittal led to wide spread rioting resulting in significant property damage as well as loss of life. The Federal Government then brought charges against the officers in Federal court based upon the same conduct. The officers were again tried for beating Rodney King, but this time under federal civil rights statues. While two of the officers were acquitted, two were convicted.
The Fifth Amendment states no person “shall be twice for the same offence to be twice put in jeopardy of life or limb.”
Which in law means they cannot be twice tried for the same offense.
As an aside I have always been struck by the inclusion of the phrase “or limb”. Did that mean the framers contemplated that a criminal’s limb, i.e. his hand, foot or arm, could be cut off as punishment for a criminal offense? Hmmm?
But back to the meaning of the Fifth Amendment. Rodney King’s police assailants could be tried twice for the same offense because one trial was conducted in State Court for offenses against the state penal code, and the other in Federal Court for offenses against the federal penal code. Same acts. Same conduct. Why shouldn’t the officers have prevailed in arguing the Federal government’s prosecution was twice placing them in jeopardy? A plain reading of the amendment would seem to indicate the government doesn’t get two bites of the apple. But then that is the key to understanding Double Jeopardy. The cases were prosecuted by two different governments. State and Federal.
It’s one of those places in the Constitution where the principles of Federalism (specific powers delegated to State and Federal government- the horizontal Separation of Powers) live on. Each of the government entities, State and Federal Government, is considered a separate sovereign.
The Supreme Court calls this the “dual sovereignty” doctrine. Under the doctrine, a State may prosecute an individual under state law even if the federal government has prosecuted him for the same conduct under a federal statue. And, of course, vice versa. The key to understanding is to focus on the use of the term “offence” in the Fifth Amendment.
The amendment does not refer to an act or conduct. Instead, it uses the term “offense” which by definition must be proscribed by a government, (a sovereign). Therefore, the Federal government and the State government, two separate sovereigns under our Federalist system, can outlaw the same conduct as different “offenses” under two separate system of laws, Federal and State.
This principle was re-visited (for the first time in over a hundred years) in the case of Gamble vs. the United States. Gamble was convicted in Alabama state court of being a felon in possession of a firearm. Then the Federal Government brought charges under the Federal “felon in possession of a gun” statue. Gamble moved to set aside the Federal indictment on Federal gun charges for the same conduct which led to his conviction in Alabama’s State court. Gamble’s appeal argued that the Dual Sovereignty doctrine should be overruled as being contrary to the intent of the framers.
In an opinion by Justice Samuel Alito, the Dual Sovereignty Doctrine was re-affirmed.
Does the doctrine have application in a modern context? As I like to point out, our Constitution is constantly in play both on a local scene like when a criminal violates a gun law, but also in situations of national significance.
Consider for a moment the plight of Paul Manafort, who for a brief time served as the President’s Campaign Manager. From public comments, one can extrapolate that the President believes Mr. Manafort has been unfairly persecuted by government agents. In his view the authorities are using every tool at their disposal in order to break Manafort down and force him to provide damaging testimony against the President. In similar situations in the past, Presidents, including Bush, Clinton, Obama and others have pardoned the offender. But in this case, because of the Dual Sovereignty doctrine, Manafort cannot be saved from State authorities by a Presidential Pardon which only applies to Federal crimes. Double Jeopardy would not apply.
Okay. But these principles are well-established. There is nothing of landmark significance in the Gamble holding. Why did the Court take it for review at all?
I’ll use a phrase that has been repeatedly used by nominees to the Supreme Court when facing questioning by Senators on issues like abortion and the future viability of cases like Roe v. Wade and its progeny. “It is settled law.”
So why?
The legal team in Gamble case got their case heard, in my opinion, due to their efforts to trace back hundreds of years through dusty musty past to old English common law cases to argue that the framers never intended to preserve the Dual Sovereignty doctrine to defeat the Double Jeopardy rule.
In swatting down the arguments as “feeble” and “dubious” Justice Samuel Alito penned an extensive decision on the value of Stare Decisis and Precedent. He wrote a detailed and lengthy analysis of the arguments made by the Gamble legal team only to come to the conclusion that the cases they had dug up where of no value as Precedent. That is, Stare Decisis which is the legal principle by which a Court is compelled to follow the decisions of a prior Court which has already ruled on the same issue.
When batting aside Gamble’s stare decisis arguments based on ancient law, he wrote, “this objection obviously assumes that precedent was erroneous form the start, so it is only as strong as the historical arguments found wanting.” If the proposition is stated from the other way, however, if the underpinning of precedent is found wanting, then the principle may not stand. In more concrete terms if the underpinnings of a case like Roe v Wade is found to be incorrect, its value as precedent is at an end.
The Gamble case at its heart is more about the proper role of the Judiciary and legal precedent than it is about Double Jeopardy.
Justice Clarence Thomas, in a concurring opinion, wrote a remarkable paragraph which calls out the Federal Judiciary for its activism. He urges federal judges to return to their proper role. He said, “I write to address the proper role of the doctrine of stare decisis.”
He states, “It is always tempting for judges to confuse our own preferences with the requirements of the law . . . and the Court’s stare decisis doctrine exacerbates that temptation by giving the venire of respectability to our continued application of demonstrably incorrect precedents.”
Thomas signals that if past cases went beyond the proper role of the Courts and were decided wrongly, they must be overruled. Even if “settled law.”
“By applying demonstrably erroneous precedent instead of the relevant law’s text–as the Court is particularly prone to do when expanding federal power or crafting new individual rights–the Court exercises “force” and “will”, two attributes the People did not give it.” In support Thomas cites passages from the Federalist papers. By “force” the framers meant the power to execute the law and by “will” they meant the power to legislate. Those powers are vested in the President and the Congress. Not the Courts!
He goes on to say, “We should restore our stare decisis jurisprudence to ensure we exercise ‘mere judgement’ which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying. In my view, anything less invites arbitrariness into judging.”
One only has to follow the arrogant and daily intervention of federal judges into every attempt to govern the country (and its borders) by the Executive and Congressional branches.
After describing how our judiciary acts differently under our system than the judges under common law, he makes no bones about how precedent if based on faulty reasoning or wrong facts must be overruled no matter how “settled.”
“A demonstrably incorrect judicial decision, by contrast, is tantamount to making law, and adhering to it both disregards the Supremacy of the Constitution and perpetuates a usurpation of the legislative power.”
He concludes by stating, “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.” Following it, he says, is an unconstitutional usurpation of the powers vested in the other branches of government. “This view of stare decisis follows directly from the Constitutions’ supremacy over other sources of law—including our own precedents.”
As we look back over a panoply of new “rights”, including abortion, recognized by the Court since the 1960s, if the precedent those cases established are found at some future point to have been based on incorrect premises, then those cases may be found unconstitutional.
So, yes, Roe v Wade, and its progeny, is “settled law.” Does that mean it couldn’t be changed if the argument could be made the cases were wrongly decided in the first place; if the scientific basis for the decision is proved wrong? As “settled law” is Roe v Wade inviolate?
I wouldn’t bet on it.