United States: Gamble v. United States: Supreme Court Upholds Double Jeopardy Clause's "Separate Sovereigns" Doctrine

Last Updated: July 12 2019
Article by Paul J. Fishman, Murad Hussain, Kirk Ogrosky and Cole Kroshus

On June 17, 2019, the US Supreme Court issued a 7-2 decision in Gamble v. United States,1 reaffirming the Court's longstanding "separate sovereigns" doctrine under the Double Jeopardy Clause of the Fifth Amendment to the US Constitution. First announced more than 170 years ago,2 the separate sovereigns doctrine permits the federal government and a state government to bring separate criminal prosecutions against the same person for the same conduct. Justice Alito's majority opinion relied on the Double Jeopardy Clause's text, which prohibits only duplicative prosecutions for "the same offence"—i.e., the violation of a particular law. Because each sovereign can define its own offenses, the Court explained that a single act can qualify as two separate "offences," because a person can violate different sovereigns' laws at the same time.

The concurring and dissenting opinions presage future fights about stare decisisi.e., how much deference the Court should and will give its own precedents. Although Justice Thomas joined the majority, he also wrote a concurring opinion calling on the Court to reconsider precedent that it deems inconsistent with the "original understanding" of the relevant constitutional or statutory text. Justice Gorsuch similarly criticized the Court's stare decisis approach, but dissented because he would have rejected the separate sovereigns doctrine even under the existing stare decisis framework. Justice Ginsburg wrote a separate dissent that also noted how the rationale for stare decisis is weakest in cases concerning how procedural rules implicate fundamental constitutional protections.

Months ago, when the Court granted review in Gamble, commentators seized on how an end to the separate sovereigns doctrine could effectively expand the scope of presidential pardons, so that they would also protect defendants from state prosecution for the same crime.3 By upholding the status quo and leaving the separate sovereigns doctrine intact, the Court has kept alive the intrigue surrounding current events. And for companies and individuals facing increased regulatory enforcement by state attorneys general, Gamble's approach confirms that regulated entities should consider state and local prosecutorial priorities nationwide before agreeing to any pretrial resolution of federal criminal charges.


In 2008, Terance Gamble was convicted under Alabama law of second-degree robbery, a felony. Years after his release, an Alabama police officer pulled Gamble over for driving with a broken headlight. After smelling marijuana, the officer searched Gamble's car and found two baggies of marijuana, a digital scale, and a handgun. Gamble was arrested and charged in state court with violating, inter alia, Alabama's prohibition against felons in possession of firearms.4 Gamble pled guilty and was sentenced to one year in jail.

Soon after, the federal government also charged Gamble with violating the parallel federal prohibition on felons' possession of firearms.5 Gamble moved to dismiss the federal indictment, arguing that the dual prosecution violated the Double Jeopardy Clause, which provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."6

The trial court rejected the argument under controlling precedent because the separate sovereigns doctrine did not bar duplicative state and federal prosecutions.7 The court concluded that "unless and until the Supreme Court overturns" the separate sovereign doctrine, it must reject Gamble's Double Jeopardy claim.8 The Eleventh Circuit affirmed in a short per curiam opinion, "based on Supreme Court precedent."9 The Supreme Court granted certiorari to consider "[w]hether the Court should overrule the 'separate sovereigns' exception to the Double Jeopardy Clause."10


Justice Alito's opinion for the Court began with the text of the Fifth Amendment.11 He first clarified that the "separate sovereigns" doctrine is not an "exception" to the Double Jeopardy Clause, but rather flows from the explicit textual reference to an "offence."12 The Court explained that, because the term "offence" was originally understood as the transgression or violation of a law, "'offence' is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two 'offences.'"13 The Court also expressed reluctance to reject its prior approach to this issue, writing that "even in constitutional cases, a departure from precedent demands special justification," and "that something more than ambiguous historical evidence is required before we will flatly overrule a number of major decisions of this Court."14

Not surprisingly, the Court emphasized that its reading of the Double Jeopardy Clause respects the possibility that two sovereigns could have different interests "in punishing the same act."15 But in doing so, the Court did not suggest that Alabama and the United States actually had different interests in prosecuting Gamble. Instead, the Court cited—among others—the more provocative and compelling example of "a prosecution in this country for crimes committed abroad."16 The Court suggested that if, as Gamble had argued, "only one sovereign may prosecute for a single act," then "no American court—state or federal—could prosecute conduct already tried in a foreign court." Yet, the Court wrote, "[t]he murder of a U.S. national is an offense to the United States as much as it is to the country where the murder occurred and to which the victim is a stranger. That is why the killing of an American abroad is a federal offense that can be prosecuted in our courts, and why customary international law allows this exercise of jurisdiction."17

Justice Thomas joined the Court's opinion on the merits, but also concurred separately to criticize the majority's view of stare decisis. While he "agree[d] that the historical record does not bear out [his] initial skepticism of the dual-sovereignty doctrine,"18 he faulted stare decisis for "elevat[ing] demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law."19 Instead, Justice Thomas proposed that "[w]hen faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it."20 In other words, Justice Thomas parted company with Justice Alito's formulation for the majority that overruling prior precedent requires "special justification."

Justice Gorsuch dissented on the merits, concluding that the separate sovereigns doctrine should be rejected even under the Court's current stare decisis standard. However, he also took aim at stare decisis and the majority's view. He acknowledged that in "close cases," the Court "rightly pay[s] heed to the considered views of those who have come before us."21 But he declared that stare decisis "has never been an inexorable command, and it is at its weakest when we interpret the Constitution."22

Justice Ginsburg also dissented on the grounds that stare decisis is "weakest in cases concerning procedural rules that implicate fundamental constitutional protections. Gamble's case fits that bill."23 On the merits, Justice Ginsburg's opinion essentially reasoned that states and the federal government are part of "one whole,"24 and that these "parts of the whole United States should not be positioned to prosecute a defendant a second time for the same offense."25


Whatever the Justices' various views of stare decisis portend for future hot-button cases, Gamble leaves intact the Double Jeopardy Clause's jurisprudence. Part of that status quo is that half of all states already bar re-prosecution of conduct previously prosecuted in federal court. One of those states is New York,26 whose legislature recently passed a bill narrowing the state's double jeopardy protections due to concerns over potential abuses of the presidential pardon power.27 That bill awaits the Governor's signature.

More broadly, Gamble reaffirms that individuals and companies who are exposed to both federal and state enforcement should consider how their approaches to resolving enforcement actions with one sovereign might affect their interactions with another. Multiple separate enforcement actions by federal, state, and local authorities remain permissible, notwithstanding the US Department of Justice's current policy of discouraging "piling on" through excessive overlapping penalties.28 And for regulated entities in particular, the risk of dual prosecution is on the rise, because state attorneys general are increasingly pursuing state law remedies in areas—such as healthcare, life sciences, and antitrust—where federal enforcement has historically been the primary governmental concern. As a result, companies that find themselves in controversial headlines should continue to be mindful of the risks in pursuing non-global resolutions of potential criminal charges.

© Arnold & Porter Kaye Scholer LLP 2019 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

  1. No. 17-646, 2019 WL 2493923 (June 17, 2019).
  2. Fox v. Ohio, 5 How. 410 (1847).
  3. See, e.g., Randall Eliason, Supreme Court to Hear Double Jeopardy Case with Implications for Mueller, Sidebars Blog, July 11, 2018; Natasha Bertrand, A Supreme Court Case Could Liberate Trump to Pardon His Associates, The Atlantic, Sep. 25, 2018.
  4. Ala. Code §§ 13A-11-70(2), 13A-11-72(a).
  5. 18 U.S.C. § 922(g)(1).
  6. U.S. Const. amend. V.
  7. United States v. Gamble, No. 16-00090-KD-B, 2016 WL 3460414, at *2 (S.D. Ala. June 21, 2016).
  8. Id. at *3.
  9. United States v. Gamble, 694 F. App'x 750, 750 (11th Cir. 2017).
  10. Question Presented, United States v. Gamble, No. 17-646 (June 28, 2018).
  11. Gamble v. United States, No. 17-646, 2019 WL 2493923 (June 17, 2019).
  12. Id. at *3.
  13. Id.
  14. Id. at *6 (quotation marks and citations omitted).
  15. Id. at *4.
  16. Id.
  17. Id. (citation omitted).
  18. Gamble, 2019 WL 2493923, at *16 (Thomas, J., concurring).
  19. Id. at *17.
  20. Id. at *20.
  21. Id. at *37 (Gorscuh, J., dissenting).
  22. Id. (quotation marks and footnotes omitted).
  23. Id. at *27 (Ginsburg, J., dissenting) (quotation marks and citations omitted).
  24. Id. at *25 (capitalization omitted).
  25. Id. at *29 (capitalization omitted).
  26. N.Y. Crim. Proc. Law § 40.20.
  27. See S. 4572, 2019-2020 Leg. (N.Y. 2018).
  28. See Rod Rosenstein, Deputy Att'y Gen., Deputy Attorney General Rod Rosenstein Delivers Remarks to the New York City Bar White Collar Crime Institute (May 9, 2018).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions