Michael Mannheimer (Northern Kentucky University – Salmon P. Chase College of Law) has posted Three-Dimensional Dual Sovereignty: Observations on the Shortcomings of Gamble v. United States (52 Tex. Tech. L. Rev. ___ (forthcoming 2020)) on SSRN. Here is the abstract:
In Gamble v. United States, the Supreme Court reaffirmed the dual sovereignty doctrine, which provides that the Double Jeopardy Clause does not bar successive prosecutions where they are brought by different sovereigns. Both the majority and the dissenters in Gamble treated the dual sovereignty doctrine as monolithic. However, the doctrine has been invoked in essentially three different contexts: as in Gamble itself, the federal government might prosecute following a state prosecution; or a state might prosecute following a federal prosecution; or a state might prosecute after another state prosecution. The Justices in Gamble failed to pay adequate attention to how the potential justifications for a bar to successive domestic inter-sovereign prosecutions might differ by context.
Much of the debate in Gamble centered around the meaning of the pre-1791 common law on cross-national successive prosecutions. But that common-law tradition is most closely analogous to, and therefore most relevant to, successive state-state prosecutions, in which sovereignty is truly separate rather than overlapping. That history is less relevant to successive state-federal prosecutions, which are at the heart of the Double Jeopardy prohibition because they raise the specter of an all-powerful central government pre-empting state and local decisions on crime and punishment. And successive federal-state prosecutions must be viewed through the lens of the framers and ratifiers of the Fourteenth Amendment, who were primarily concerned with arbitrary and discriminatory conduct by state executive and judicial officials.
In short, when it comes to successive state-federal prosecutions, federalism is the primary value. With regard to successive federal-state prosecutions, the separation of powers inherent in the concept of due process is paramount. And with regard to successive state-state prosecutions, interstate comity is the principal value. The Gamble Court’s failure to focus on the federalism constraint implicit in the Double Jeopardy Clause led it to hold incorrectly that the Clause permits successive state-federal prosecutions. But that is not to say that the dual sovereignty doctrine is unjustified in the other two contexts. The dual sovereignty doctrine is highly contextual, multi-layered, and nuanced, and the Justices in Gamble erred by treating this three-dimensional doctrine as if it exists in only a single dimension.