Restoring the Double Jeopardy Clause

Today the Supreme Court granted certiorari in Gamble v. United States, which asks the Court to overrule its 1958 decision in Bartkus v. Illinois. Bartkus was a deeply flawed opinion, written by Justice Frankfurter, which held that a state prosecution for the same criminal act that led to an acquittal in federal court (or vice versa) did not violate the Double Jeopardy Clause of the Fifth Amendment. The Court’s theory was that a state and the United States were “separate sovereigns” and that the Double Jeopardy Clause bars only the same sovereign from trying someone again for a crime after an acquittal.

Bartkus is inconsistent with the history of the Double Jeopardy Clause and the case law underlying that important protection to criminal defendants. I certainly hope that the Court will send Bartkus into the trash can next Term.

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2 Responses

  1. Joe says:

    “Bartkus is inconsistent with the history of the Double Jeopardy Clause”

    I am quite open to overturning the separate sovereign rule but not really sure about this statement. Fox v. Ohio (1847) rejected that the argument that offences falling within the competency of different authorities to restrain or punish them would not properly be subjected to the consequences which those authorities might ordain and affix to their perpetration.”

    How much the 14A changed this principle is fairly open to debate though the test of history warrants a steady rule now that federalism concerns in criminal justice etc. are more limited when basic liberty is involved.

  2. I would be thrilled if the Court decided to overturn Bartkus. No where in the text of the Fifth Amendment is the separate sovereign rule implied. Although, in fairness, the drafters of the Fifth Amendment likely did not envision such extensive federal criminal law to begin with.

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