One of the more interesting things about criminal law in the U.S. is the concept of dual sovereignty. That means that both state and federal law can apply to individuals at any one time. Both federal and state governments can prosecute someone for the same crime under a different set of laws without infringing on rights protecting against double jeopardy, at least for now.

One recent Supreme Court Case, still pending before the court, dealt with this exception to the Double Jeopardy Clause under the Fifth Amendment in Gamble v. the United States. The doctrine has been around for around 150 years and was affirmed by the Court in 1959. It has come under criticism as there is no explicit mention of it in the text of the Constitution.

In Gamble’s case, Terance Gamble served a prison sentence for a previous crime. He was in possession of a gun after being stopped in 2015 while driving, which happened to be illegal under both state and federal laws because he was a convicted felon. He was found guilty under Alabama state law and sentenced to one year in prison.

He was also prosecuted under federal laws when the district court determined that double jeopardy did not apply. He then pled guilty for a 46-month prison sentence. The 11th Circuit affirmed the decision.

The Supreme Court agreed to hear the case in 2018. The government argues that overturning this doctrine would wreak havoc on the country’s federalist system. There should be a separate federal criminal system for each government to maintain their own ‘sphere of influence’ and prevent federal encroachment on local law enforcement.

The ACLU and others have filed their own amicus briefs, arguing that because there is no basis in the law that Double Jeopardy can be exempted based on dual sovereignty, the doctrine should be overruled.

In light of the increasing codification of crimes under federal law, there is a risk that individuals could face unfair prosecutions and sentencing for the same conduct, in apparent contravention of the intent of the Constitutional clause. The argument was heard in December of 2018, but an opinion has not yet been handed down.

If it were overruled, it could have significant implications for how the criminal system currently operates. Right now, the power for states to prosecute individuals for similar crimes often serves to be a useful check on the executive and legislative branches. Presidential pardons would also only negate federal convictions and not those that came after state prosecution.

If the Court decides to overturn 150-odd years of jurisprudence over based on this case, it will no doubt be an immensely important decision that will be fundamental to our understanding of the Constitution. At oral arguments, the concern from the justices for the practical effects of such an action was palpable. But it bears repeating that the only court which can overturn the Supreme Court is itself – and it has done so before. Desegregation, gender equality, and state’s rights are all things that exist in this country thanks to the Court overruling itself.

Will the exception to double jeopardy follow suit?