Earlier this month, U.S. Supreme Court Justice Neil Gorsuch cited research by S.J. Quinney College of Law Professor Paul Cassell in his dissenting opinion in Gamble v. United States. Gorsuch called Cassell work part of “persuasive academic support” for the conclusion that the Double Jeopardy Clause forbids both the federal and state governments from prosecuting a defendant for the same crime.
At issue in Gamble’s case was 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. Gamble was pulled over by police in 2015 for a broken tail light and a firearm and marijuana paraphernalia were found in the vehicle during the stop. Gamble was barred from owning a firearm because of a prior robbery conviction for which he served a year in prison. He also had a prior conviction in Alabama for drug possession stemming from a traffic stop. The federal government charged Gamble for the same crime, and he’s currently incarcerated in a federal facility awaiting the high court to hear his case.
In this month’s 7-2 opinion, the high court declined to overturn its long “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. The court noted that its prior precedents allowed such prosecutions, and that no special justification had been shown for departing from those precedents.
Gorsuch dissented, explaining that he found the court’s earlier rulings to be questionable, particularly because they had triggered “an avalanche of persuasive academic support” against the dual sovereign doctrine. Among several other articles, Gorsuch cited Cassell’s article, “The Rodney King Trials and the Double Jeopardy Clause: Some Observations on Original Meaning and the ACLU’s Schizophrenic Views of the Dual Sovereign Doctrine, 41 UCLA L. Rev.693 (1994).
Along with UCLA law professor Stuart Banner, Cassell has previously filed an amicus brief in the case.