Under the doctrine of “dual sovereignty,” the Supreme Court has long held that a successive prosecution of an individual for the same act will not trigger the Fifth Amendment’s protections against double jeopardy if it is brought by a “separate sovereign”—that is, an entity that derives its power to prosecute from a wholly independent source.
Because the states’ authority to prosecute originally derived not from the federal government but rather from the “inherent sovereignty” belonging to them before their admission to the Union, the High Court has deemed states separate sovereigns from the federal government (and from one another) under this doctrine, which is seemingly alive and well. See, e.g., United States v. Morales.
But is it?
Last Thursday the Supreme Court granted certiorari in Gamble v. United States to squarely address whether the Court should overrule the “separate sovereigns” exception to the Fifth Amendment’s safeguard against double jeopardy. The murmurs have already begun to reverberate that the Court is poised to overrule the exception. Indeed, the groundwork has been laid for the Court to do just that. Most recently, in Puerto Rico v. Sanchez Valle, Justice Ginsburg wrote a concurrence, in which Justice Thomas joined, to express concern that the separate-sovereigns exception “hardly serves” the double jeopardy’s proscription “to shield individuals from the harassment of multiple prosecutions for the same misconduct.”
Perhaps soon, at least when it comes to state and federal courts, the Fifth Amendment will again mean what the Framers intended--that no person shall be “twice put in jeopardy of life or limb” for “the same offence.”