With the phrase
nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;
the Fifth Amendment protects us from being put on trial twice for the same criminal action, or does it?
In the Fifth Amendment the term "offence" is considered the act of breaking a law. Under our dual sovereignty system, there are times federal and state laws covering the same action. In this case there is an exception to the double jeopardy clause because a single action can break the laws of a sovereign state and the laws of a sovereign federal government. So a defendant can be tried, convicted and sentenced in the state courts and then tried, convicted, and sentenced in the federal courts.
A man named Terrence Gamble is currently facing this problem. Gamble was convicted of robbery in Alabama in 2008. In 2015 during a traffic stop, Gamble was found to be in possession of a firearm. The state of Alabama and the Federal government have laws against convicted felons having possession of a firearm. Gamble was sentenced to one year in prison in Alabama for having this firearm and then sentenced to four years in prison in federal courts. Gamble has appealed and the case is currently being heard by the Supreme Court.
Gamble's argument is that the dual sovereignty system of applying laws is inconsistent with the double jeopardy clause in the Fifth Amendment. This is a tough argument for Gamble to make work for him. Our legal system makes judgements using a doctrine of "stare decisis" (sta·re de·ci·sis) which is Latin for "that which has been decided". Under this system, the decision reached in previous cases are used in current cases to make the decision easier. In addition, it provides a level of continuity to our legal system keeping the judgements of cases consistent over time. Obviously, judges can ignore precedent if the precedent can be shown to be grievously wrong, but for the most part precedent is followed maintaining a level of consistency in our legal system.
The exception of the double jeopardy clause for dual sovereignty has been established for 170 years and has had 30 Supreme Court Justices over the years vote to back it up. With the make-up of the current Supreme Court, it's hard for me to believe the court will go against 170 years of precedents. This is especially true when the underlying principle of the case (dual sovereignty) is such a fundamental part of our system of government.
Part of Gamble's argument to the Supreme Court is the dual sovereignty system was intended for each sovereignty to protect citizens from the other sovereignty, to in effect have dual protection. I think what Mr. Gamble is going to find is that he has placed himself in a position of having the dual sovereigns protect the citizens from felons carrying guns.
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