Gamble v. United States: Brief of Amici Curiae Criminal Procedure Professors

42 Pages Posted: 16 Oct 2018

See all articles by Kiel Brennan-Marquez

Kiel Brennan-Marquez

University of Connecticut - School of Law

Stephen E. Henderson

University of Oklahoma - College of Law

Michael Mannheimer

Northern Kentucky University - Salmon P. Chase College of Law

George C. Thomas

Rutgers, The State University of New Jersey - Rutgers Law School

Date Written: September 22, 2018

Abstract

Gamble v. United States is an invitation for the Supreme Court to reconsider the "dual sovereignty" rule in double jeopardy law, which permits federal and state authorities to engage in parallel or successive prosecutions of the same defendant for the same offense. In this amicus brief — in support of petitioner — we urge the Court to abolish the dual sovereignty rule. The argument develops in four parts. First, we show that the rule clashes with the original understanding of the Double Jeopardy Clause, especially in light of its drafting history. Second, we argue that under the Court's own test (reaffirmed as recently as the 2015 term) for determining which sovereigns are, in fact, "dual," the sovereignty of the federal government is best understood as derivative of — not separate from — the sovereignty of the states. Third, we explain why every policy rationale behind double jeopardy protection counsels against the dual sovereignty rule, particularly given the existence of other doctrines (most notably, the Blockburger "same offense" rule) that already limit the scope of double jeopardy protection in practice. Finally, we suggest that the key precedents appearing to bolster the dual sovereignty approach are, on scrutiny, weaker than many have assumed — and in some instances, may not support the rule at all.

Keywords: Double Jeopardy, Dual Sovereignty, Criminal Procedure

Suggested Citation

Brennan-Marquez, Kiel and Henderson, Stephen E. and Mannheimer, Michael and Thomas, George C., Gamble v. United States: Brief of Amici Curiae Criminal Procedure Professors (September 22, 2018). Available at SSRN: https://ssrn.com/abstract=3253663 or http://dx.doi.org/10.2139/ssrn.3253663

Kiel Brennan-Marquez (Contact Author)

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

Stephen E. Henderson

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States
405.325.7127 (Phone)

HOME PAGE: http://www.law.ou.edu/directory/stephen-e-henderson

Michael Mannheimer

Northern Kentucky University - Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States

George C. Thomas

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

Newark, NJ
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
28
Abstract Views
439
PlumX Metrics