Thinking About Double Jeopardy

Rory K. Little (UC Hastings College of the Law) has posted Double Jeopardy and the Gamble decision (Forthcoming, SCOTUS 2019) on SSRN. Here is the abstract:

This short book chapter analyses the U.S. Supreme Court’s recent decision in Gamble v. United States (2019), which decided not to overrule “170 years of precedent” allowing the “same sovereigns” to both prosecute an individual for the same crime. Here, the feds prosecuted Gamble as a “felon-in-possession” after Gamble had pled guilty to that same offense under State law. He received an additional three years in prison for the federal conviction, consecutive to a year in Alabama. Justice Alito wrote for 7 Justices that the “separate sovereigns” exception to the Double Jeopardy Clause is backed by reasonable policy as well as precedents dating back to at least 1852. Interestingly, Justices Ginsburg and Gorsuch, ideological opposites to some extent, both dissented, and wrote that “individual liberty” should prevail over “stare decisis.” Doctrinal thoughts on three issues are offered at the end.

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