In an article by that title in “The Crime Report,” Matthew Mangino examines the issue of the Double Jeopardy Clause in the case of  José Ines Garcia Zarate, who was acquitted in a California court of Kate Steinle’s murder but convicted of being a felon in possession of a firearm. Garcia Zarate has now been indicted on two federal charges similar to those he was convicted of in state court.  The state conviction and new federal charges raise the issue of violating the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution.

As Mangino points out, this issue is virtually identical to Gamble v. United States, a case that the Supreme Court is currently considering for certiorari. Gamble was pulled over in 2015 by an Alabama police officer for a broken taillight. During the stop, the officer discovered both a gun and marijuana paraphernalia in Gamble’s car. Gamble, who had been convicted of second-degree felony robbery seven years earlier, was barred from owning a firearm. He was prosecuted for illegal possession of a firearm and served one year in state prison. Subsequently, the federal government also charged Gamble with illegal possession of a firearm for the same incident. Gamble asked the U.S. District Court to dismiss his federal indictment for violating double jeopardy.

The Federal District Court ruled against Gamble under the “dual-sovereignty” exception to the Double Jeopardy Clause, an exception created by the Supreme Court which permits a second prosecution for the same offense by a different “sovereign,” permitted the federal case to proceed. The rule dates back many decades, to a time when there was little federal criminal jurisprudence and so little overlap between federal and state crimes. Gamble and many Amici, including some conservative voices such as the Cato Institute along with traditional criminal justice advocates like the ACLU, are now asking the Supreme Court to reconsider the rule in light of the expansion of federal criminal statutes –  “a stunning expansion of federal criminal jurisdiction into a field traditionally policed by state and local laws,” according to Justice Thomas in 1992.

Justice Hugo Black argued in a 1959 dissent, “If double punishment is what is feared, it hurts no less for two ‘Sovereigns’ to inflict it than for one.”