The recent Gamble v. United States decision reminds us that the house always wins. This is quite a serious case, and horrible precedent, which is rather ironic, consider the Court’s reliance upon stare decisis to justify the ruling. Terrance Gamble was prosecuted in Alabama for being a felon in possession of a weapon, among other charges. He took a plea, and was sentenced accordingly to ten years in prison, of which time, all but year one was suspended. Several states, of which New Mexico is one, have similar criminal statutes, the ostensible purpose of which is to keep weapons out of the hands of potentially violent criminals. The issue in this case is that it is also illegal under federal statute. That means upon pleading guilty to state charges, Mr. Gamble was then charged under the federal statute. He pled guilty to the federal charges, and was sentenced to three more years in prison. He then appealed on grounds of double jeopardy, arguing that he was subjected to two prosecutions for the same conduct. The Court, in an opinion by Justice Alito, ruled that double jeopardy did not apply, under the dual sovereignty doctrine.
The dual sovereignty doctrine is designed to allow different nation-states to prosecute crimes that occur in their territory or committed by or upon their inhabitants. For example, if an American was mugged in Paris, both France and the United States would have an opportunity to prosecute the mugger. This ability stems from their sovereign status; as Justice Ginsburg puts it in her dissent, “for double jeopardy reasons, identical criminal laws enacted by separate sovereigns are different offenses.” In the context of France or the United States, this is compelling; it gives nation-states the flexibility and the capacity to ensure its status as a nation is respected and that its residents are protected by the law the State enacts. Importantly, these States are distinct and separate from one another. More pointedly, they have equal power to each other.
It’s this distinction and separateness that renders the dual sovereignty nonsensical in the context of state and federal prosecutions. As Hamilton put it, “ the national and State systems are to be regarded as one whole.” The Federalist Papers, No. 82. The majority opinion heavily relied on adherence to stare decisis, specifically to U.S v. Lanza, Abbate v. United States, and Barkus v. Illinois. Precedent is, without doubt, valuable to a functioning legal system because it creates legal predictability. However, precedent that has no basis in the Constitution, as Justice Gorsuch acerbically noted, leads to poor, often subsequently illegal results. Korematsu and Plessy v. Fergusson come to mind. Further, as Justice Ginsburg notes, following her mot juste, “I would not cling to those ill-advised decisions,” referencing Lanza, Abbate, and Barkus, the policy rationales for upholding dual sovereignty have become obsolete. To wit, the idea that double jeopardy only restrained the federal government, rather than the state government, became immaterial following incorporation to the states through the 14th Amendment. Further, dual sovereignty was voted down by the First Congress, to specifically bar prosecution by both the federal government and the state government.
Why does this matter in New Mexico? For starters, New Mexico “explicitly adopted the dual sovereignty doctrine.” Consequently, New Mexico maintains that “the law is well established in both federal and state courts that where the same act is prohibited by the laws of the separate jurisdictions, a prior acquittal or conviction by one sovereign does not necessarily operate as a bar to a subsequent prosecution for the same act or transaction by the other sovereign.” The Gamble ruling cements that approach, which is troubling when one considers, among other concerns, how much of New Mexico remains federal land. Given the Court’s struggle this term with how stare decisis fits in constitutional analysis , and when it should be observed or disregarded, it remains to be seen how this will affect New Mexico in the long run. Stay tuned!