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Double Jeopardy—the protection against repeated attempts by the state to convict a citizen for the same offense—is one of the core constitutional protections against false prosecution and the harassment of political opponents of the government. But we also have a federal system under our Constitution, in which the national and state governments are separate sovereigns who each perform independent functions. Does the separate sovereigns doctrine mean that Double Jeopardy applies to each accusation or to each government? If a state has brought a criminal prosecution, can the federal government do so as well? This question is not at all clear once we consider the principles behind the Double Jeopardy protection and the ramifications of a ruling one way or the other. The Court’s ruling will have long-term influence on the rights of criminal defendants and the ways in which jurisdictional battles are resolved in American law.
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Professor Akhil Reed Amar has written that “Supreme Court case law is full of double jeopardy double talk.” Amar, “Double Jeopardy Law Made Simple,” 106 Yale Law Journal 1087 (1997).
Gamble decision, pages 2, 12.
Ibid., page 28.
Screws v. United States, 325 U.S. 91 (1945); Koon v. United States, 518 U.S. 81 (1996).
Gamble decision, page 7.
32 U.S. 243, 247 (1833).
See the discussion of incorporation in Timbs v. U.S. in Chapter 12.
Benton v. Maryland (1969).
Gamble decision, page 10.
Ibid., page 12 (emphases in original).
See Olmstead v. United States, 277 U.S. 436, 471 (1928, Brandeis dissenting), overruled in Katz v. United States, 389 U.S. 347 (1967); Plessy v. Ferguson, 163 U.S. 537, 552 (1896, Harlan dissenting), overruled in Brown v. Board of Education, 347 U.S. 483 (1954).
See Rory K. Little, “The Federal Death Penalty,” 26 Fordham Urban Law Journal 347, 413 (1999).
See George C. Thomas III, “A Blameworthy Act Approach to the Double Jeopardy Same Offense Problem,” 83 California Law Review 1027 (1995).
Roe v. Wade, 410 U.S. 113 (1973).
Compare Alito writing to overrule a precedent in Janus v. AFSCME (2018) (See SCOTUS 2018), versus Justice Alito dissenting in Arizona v. Gant, 556 U.S. 332 (2009) to bemoan the majority’s overruling of precedent.
Knick v. Township of Scott (2019) Kagan dissenting, page 18.
- Gamble v. U.S. on Double Jeopardy
Rory K. Little
- Springer International Publishing
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