Why I don't See Gamble vs. US as the issue

[bitterross]

I'm seeing a lot of posts about this case and Kavanaugh. Frankly, I don't think this is the reason they want him. They may not even need him for the winning vote.

RBG has questioned this doctrine and in a recent case (Puerto Rico v. Sanchez Valle) she wrote a concurrence with Justice Thomas that suggested it was time for a “fresh examination” of this doctrine. Now, when the Venn Diagram of people who support a review has RBG and Clarence Thomas in the intersection of the sets I have to take note.

I believe this separate/dual sovereigns doctrine SHOULD be overruled. I think it DOES violate the Double Jeopardy clause. It's called an "exception" for a reason. It creates an exception to the otherwise plain language of the 5th Amendment.

Take a look at the details in the case that has worked its way up to the court and you might be more sympathetic. Think about the possibility of having your minor marijuana possession charge dismissed at the state level only to have Jeff Sessions' DOJ/DEA charge you AGAIN at the federal level.

BOOM, now you're back in jail, back in court, back in tons of JEOPARDY and spending money you do not have to defend yourself because you just went almost broke defending yourself in state court.

Or, you had a DA who see's the stupidity of marijuana being a Schedule 1 drug who let you off with some probation or dismissed the charges. Jeff Sessions and the tough on crime people don't like that. You need to pay. You need to go to federal prison for that one brownie you had.

THAT is the day-to-day reality of this case and the doctrine. This is actually happening on a more frequent basis. Joint state-federal task forces work together more and more now. When the state DAs lose their cases in state court, they hand it over to the feds for a do-over. Nobody likes to lose. They'll show you!

Trump and his band of criminals are not the people who need this the most. I would suggest that we common people need this far more. As the Federal government and its branches tasked with law enforcement continue to expand under the Republicans we common people need this more.

I don't like that it MIGHT provide a way for Trump to get his cronies out of trouble but I suspect it won't be that cut and dried. The law never is. The feds can choose not to charge people and leave way for the states to bring charges and Trump cannot do a thing about it.

I think, overall, ending the dual/separate sovereigns doctrine is the right thing to do for the country and the Constitution. If it lets some of Trump's cronies get away, then I'll have to live with that. Just as I live with, and fully support, the doctrine that it is better to let a dozen guilty people go free than imprison a single innocent person.

As a liberal and progressive I must look past my contempt for Trump, his cronies, and the current circumstances to the greater good. I must be consistent in my opinions, actions and support. So I, personally, must support the end of the dual/sovereign doctrine. Even if it might, might allow some of Trump's cronies to weasel out of trouble.

https://www.aclu.org/cases/gamble-v-united-states

[hlthe2b]

1. I have been a $ supporting member of ACLU for years, but I don't always agree with them...

even while I agree they need to present the side of the argument with which I disagree... That's how democracies work. That's how "checks and balances" works.

That said, I disagree vehemently, as I likewise disagree with the Federal attempts to destroy CA fuel standards on behalf of a corrupt corporate-driven EPA and to block the state attempts (also CA) to enact strict Net Neutrality laws. The states have to be a bulwark to Federal corruption--never more so than now. There has to be a balance between State and Federal powers and autonomy.

And all that is not to mention that the single tool available to conceivably halt Trump's authoritarian take-over of our Federal Government is something you think expendable? NO

[bitterross]

2. Dual Soveriegn is NOT the only tool to stop Trump

I, like you, do not always side with the ACLU.

Like you, I think it is disgusting that the feds are working to overrule CA. I must also point out that we liberals love it when the feds overrule some stupid TX law but don't see the same process as fair when the feds overrule a law we like in CA. Don't be a hypocrite. It's like being a Republican. You may not have it both ways and pick and choose. You either believe in things like the Commerce Clause when the Democrats invoke it and when the Rethuglicans invoke it too or you should not for either.


I must disagree with you that the dual sovereign doctrine is the single tool available to stop Trump. I think the prosecutors are far more creative than you are giving them credit. They will find ways to charge people under separate and different statutes that will allow them to proceed.

The best tool to stop Trump is GOTV.

[hlthe2b]

3. THEY ARE separate statutes...

by definition, even if you consider so only to be a technicality.

But even where State and Federal laws overlap and are charging the same crime, there are differences in the laws. Even where both State and Federal murder charges are being levied for the same crime, there are differences in those statutes. If you think what could happen if one or the other jurisdiction decides they don't want to enforce the law against a political figure, the checks and balances of having the other able to do so is paramount. We would NEVER have any justice for so many civil rights era murders and other attrocities, had Federal law not been able to come into play when state officials refused to do so. The opposite may be the ONLY way we have to ensure that NO ONE is above the law in the time of Trump.

[bitterross]

4. Do you want Sessions to charge you Federally for the same State crime?

There are state statutes that prohibit the possession of marijuana. If you are charged and either found guilty of possession or a jury acquits, the dual sovereign doctrine allows Jeff Sessions and his DEA to charge you again if the state finds you not guilty.

Many state DAs are more than happy to hand their failed prosecutions over to the feds for this sort of do-over because they do not like to lose.

Now, expand that sort of thing to anything the Republicans want to regulate according to their ideology. They will charge you in the state first for your posting articles unfavorable to the state. You will spend all of your resources defending yourself and be acquitted. Then they will charge you again in the federal courts for your posting articles unfavorable to the state.

You are now broke from defending yourself in state court. You have to take a plea deal in federal court to leave your family with what little you still have.

I'm pretty sure overruling the dual sovereign doctrine is a loss for them.

[hlthe2b]

5. Do I want to lose our democracy over this? Do I want murderers to go free because racist

jurisdictions refuse to charge them? Do I want rapists to go free because misogynistic theocratic states decide that women are expendable at a minimum and worst, responsible for their own assaults with no ability--with no Federal review of that state's lack of enforcement of laws-- in violation of civil rights?

I think your concerns over judicial "purity" are certainly an academic argument, but belies the biggest risk of all.

[bitterross]

7. You cannot have read my entire post.

Did you read more than the title of my OP?

The things you are saying are not in the least relevant or related to anything I said. You are off in the weeds.

Read my entire post and then make some arguments.

Until then. I'm done with you and not going to respond to you.

[hlthe2b]

8. Fine...

[onenote]

6. The specific facts of the Gamble case

(and why the court likely will rule in favor of Gamble -- with or without Kavanaugh).



In 2008, Terance Gamble was convicted of second-degree robbery in Mobile County, Alabama, resulting in his being barred under federal and state law from possessing a firearm in the future.

More than seven years later, Gamble was driving in Mobile when a police officer pulled him over for a faulty tail light. Smelling marijuana coming from Gamble’s car, the officer searched the vehicle and discovered two baggies of marijuana, a digital scale, and a 9mm handgun.

The state of Alabama prosecuted Gamble for possessing marijuana and for being a previously convicted felon in possession of a firearm. Gamble received a one-year sentence, which he finished serving on May 14, 2017.

While the Alabama prosecution was ongoing, the federal government charged Gamble for the same offense under federal law: being a felon in possession of a firearm. In other words, the federal government based its prosecution on the same November 29, 2015 event that gave rise to his state court conviction. Gamble thereupon was convicted and sentenced to nearly four years in prison -- meaning that he now faced the prospect of being imprisoned for around three more years after he had served his one year state conviction sentence.

Because this is a clear cut case of the same facts being the basis of two separate prosecutions for the same offense, the resolution of the case will not necessarily resolve is the more difficult question of when two prosecutions are considered to arise from the same facts and be based on identically (or nearly identically) defined offenses.

Finally, as has been pointed out several times on other threads, the impetus for the SCOTUS to take this case came from Justice Ginsburg who, together with Justice Thomas, has suggested that the time has come to re-examine the separate (or dual) sovereigns exception to the double jeopardy clause. For anyone who thinks that Kavanaugh's vote will be essential to creating a five justice majority I put the following question: how do you think each of the other Justices (Roberts, Alito, Gorsuch, Sotomayor, Kagan, and Breyer) will rule: with Ginsburg and Thomas or against them?