University of Utah S.J. Quinney College of Law Professor Paul Cassell has filed an amicus brief with the U.S. Supreme Court in the high-profile Terance Gamble case, in which he urges the high court to reconsider the “dual sovereign” exception to the Double Jeopardy Clause.
Cassell filed the brief with Stuart Banner of the UCLA Law Supreme Court Clinic.
The amicus brief is the latest filing in Gamble’s case, which will be heard by the U.S. Supreme Court in coming months. At issue is whether the double jeopardy clause of the Fifth Amendment bars states and the federal government from separately trying the same person for the same criminal offense.
The brief by Banner and Cassell argues that the “dual sovereign doctrine” – which permitted the prosecution of Gamble by both Alabama and the United States for the same crime of being a felon in possession of a firearm – should be overruled. Banner and Cassell made this argument from an originalist perspective, arguing that the original meaning of the Double Jeopardy Clause does not permit such multiple prosecutions. The brief concludes: “Defendants today have weaker double jeopardy protection than they did at the Founding, when the Double Jeopardy Clause was understood to bar successive prosecutions by all sovereigns, not just the sovereign that prosecuted first. If judges can weaken constitutional protections for policy reasons that seem pressing at the time, one wonders what the Constitution is for.”