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.