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Decades ago, the Supreme Court developed an exception to the double jeopardy clause of the Fifth Amendment and is now asked to rethink the precedent.
The so-called "distinct sovereign exception" provides that a person may be tried twice for the same offense if the proceedings are brought in federal and state courts. The reason is that states and the federal government are different rulers.
Critics argue that, nowadays, this leads to the harassment of the accused – especially the poor – who can not afford to fight on two fronts. They also point to a recent trend that they believe has led to an increase in federal prosecutions in areas traditionally left to the states.
In addition, this could also have an impact on the presidential pardon power, which would raise the question of what would happen if the president pardoned a person such as his former campaign president, Paul Manafort, for federal offenses. . Under this exception, a state could possibly prosecute the same crimes. This might not happen if the court removed the exception.
In court, the judges were concerned that the exception has existed for about 170 years.
Judge Elena Kagan pointed out that "30" judges had approved it. Justice Brett Kavanaugh pointed out the instability of the system that can arise when judges change course. It seemed like the dominant feeling on the ground.
At the same time, some judges have recognized the complexity of the debate and the criticisms made by academics and judges who fear that this may be, as Judge Ruth Bader Ginsburg put it, a "double blow" for some accused. Judge Neil Gorsuch emphasized that successive prosecutions are a "problem".
A Justice Department attorney pointed out that, if the court were to lift the exception, this would pose "practical" problems, deter co-operation and incite the accused to play the federal government's role. States.
The case before judges Thursday was introduced by Terance Gamble, who was convicted of second-degree theft in Alabama in 2008 and 2013. He was later arrested in 2015 and found with a weapon In his car. Federal and state laws prohibit a convicted criminal from owning a firearm. After convictions in federal and state courts, Gamble said his two convictions extended his incarceration for three years.
A court of appeal ruled, citing a precedent of the Supreme Court, which "decided that prosecutions would be brought in federal courts court for the same conduct does not violate the double Clause peril, because the state and federal governments are separate rulers. "
Gamble appealed the decision of the Supreme Court, urging it to overturn the doctrine of separate sovereignty.
In court documents, Gamble's lawyers argued that "for centuries" federal and state criminal justice systems operated with little or no overlap and that the state's criminal law was dominant.
Today, it is said, this has changed.
Limits of presidential pardon power?
Although the case does not relate to the investigation of the special advocate and that the power of presidential pardon has not been evoked orally, some argue that & # 39; 39 It could have ramifications Manafort. The president has not ruled out the possibility of a pardon. If the Supreme Court overrules the exception, a state could in principle sue it.
"There is nothing wrong with the fact that, if the Court quashes the doctrine of separate sovereignty, a state can not prosecute then someone like Paul Manafort for federal crimes. for which he could be pardoned, "said Steve Vladeck, a CNN legal analyst and professor at the University of Texas Law School.
"But the criminal jurisdiction of states tends to be so much broader than that of the federal government that such an approach would not remove potential criminal liability in such cases," added Vladeck.
Adam Kurland, a law professor at Howard University Law School, doubts the case has an impact on the Mueller inquiry.
"New York law already has a law that limits prosecutions against states for the same facts as previous federal prosecutions," he said in a statement.
The Department of Justice urged the court to uphold the exception of sovereign states, citing the authors' intent.
"The drafters wrote the Constitution to demonstrate the sovereign power of the United States and the states, including the power to enforce their own criminal laws," said Senior Attorney General Jeff Wall in court documents .
Wall also supported. that, as part of a longstanding policy, the federal government only prosecutes cases where the state's case has left a "substantial federal interest manifestly unproven".
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