By\u00a0Eric Allen Kauk*<\/p>\n
<\/p>\n
On November 20, 2015, around 11:00 p.m. Terance Gamble was pulled over in Mobile, Alabama by a local police officer for having a busted light on his car.\u00a0 As the officer walked up to the car, he smelled marijuana, so he removed Mr. Gamble from the car while he searched the vehicle.\u00a0 The officer found a small amount of marijuana and a firearm.\u00a0 Marijuana is still illegal in Alabama, but the gun was the bigger issue for Mr. Gamble.\u00a0 In addition to numerous other legal issues, Mr. Gamble had been convicted of robbery 8 years earlier.\u00a0 So, having a gun in his car was conduct that violated both Alabama state law<\/a> and the federal law<\/a> that both forbid convicted felons from possessing a firearm.<\/p>\n In Gamble v. United States<\/em><\/a>, the Supreme Court is deciding whether a person can be prosecuted under both federal law and state law for the same specific conduct.\u00a0 This is not a new question.\u00a0 Long-standing precedent in case after case says \u201cyes.\u201d<\/p>\n The Double Jeopardy Clause of the Fifth Amendment states: \u201c[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .\u201d \u00a0However, for about 150 years, courts have regularly and repeatedly reinforced that a state government and the federal government can both prosecute an individual for singular conduct that that violates both state law and federal law.\u00a0 (Abbate v. United States<\/a>, Heath v. Alabama<\/a>, Puerto Rico v. Sanchez Valle<\/a>, United States v. Dixon<\/a>)<\/p>\n The rationale underlying these decisions is that the state and federal governments are separate sovereign entities, each deriving their authority from different groups of governed people. \u00a0An individual state derives its sovereign authority from the citizens of that state, while the federal government\u2019s power is granted by the citizens of the entire United States.\u00a0 Therefore, a single action or instance of conduct can be two \u201coffence[s]\u201d against the laws of separate sovereign entities: one offence against a state law and one offence against federal law.\u00a0 Since there are two offences, a person that is prosecuted by both state and federal authorities is not being prosecuted for the same \u201coffence\u201d and is thus not being put in \u201cdouble-jeopardy.\u201d<\/p>\n Although the \u201cseparate sovereigns\u201d doctrine seems like settled law, the nine Supreme Court Justices took their time to consider Gamble\u2019s case at 11 consecutive conferences before finally agreeing to hear the case.\u00a0 With so much precedent and such a long history, why did SCOTUS agree to consider Gamble\u2019s case now?\u00a0 The numerous cases asking this same question is certainly an important reason, but the current political climate is likely not a coincidence.<\/p>\n Political pundits on the left and the right have postulated that if SCOTUS overturns the separate sovereigns doctrine at issue in Gamble<\/em>, there could be high-profile effects.\u00a0 For example, Paul Manafort<\/a>, Roger Stone<\/a>, and potentially President Trump could be prosecuted at the federal level, and then pardoned by the sitting President, which would protect them from being prosecuted at the state level.<\/p>\n While this is certainly a concern, a more damaging issue must be considered: state governors abusing the power of the pardon.<\/p>\n If SCOTUS overturns the separate sovereigns doctrine, a state could prosecute an individual under state law and that state\u2019s governor could pardon the individual\u2014which would (under a conduct-centric interpretation of double jeopardy protections) then bar any subsequent federal prosecution.\u00a0 It\u2019s also important to consider that the governors of most states<\/a> enjoy absolute and unquestioned authority to grant pardons.\u00a0 With no limitations or oversight, such a massive expansion of state governors\u2019 power to pardon could lead to unintended outcomes across the country.<\/p>\n This issue is not about Trump.\u00a0 Trump has granted only 7 presidential pardons<\/a> out of 869 applications in the first 25 months of his presidency.\u00a0 This is a historically low rate of .8%, compared to Obama\u2019s 212 pardons out of 3,395 applications (a rate of 6.24%). But, If SCOTUS overturns the separate sovereigns doctrine, we could see a \u201crace-to-the courthouse\u201d mentality across the country where a governor\u2019s political allies can seek favor from a state pardon process that is already shrouded in mystery and rife with inconsistencies<\/a>.\u00a0 By overturning the separate sovereigns doctrine, the Supreme Court could be granting completely unchecked pardon authority to state governors across the country.<\/p>\n <\/p>\n *Eric Allen Kauk is a fully restored individual in his third year at Stetson University College of Law.\u00a0 He can be reached at ekauk@law.stetson.edu.<\/p>\n","protected":false},"excerpt":{"rendered":" By\u00a0Eric Allen Kauk* On November 20, 2015, around 11:00 p.m. Terance Gamble was pulled over in Mobile, Alabama by 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