The Supreme Court Was Right to Uphold the Dual-Sovereignty Doctrine

(Jonathan Ernst/Reuters)

A venerable exception to double-jeopardy protection lives on.

It was the night of November 5, 1990, in a second-floor conference room at the Marriott East Side Hotel in midtown Manhattan. That is when Sayyid Nosair murdered Meir Kahane.

The Brooklyn-born founder of the Jewish Defense League, Rabbi Kahane was a controversial Israeli politician: a radical ultra-nationalist and anti-Communist. Nosair, an Egyptian-born American, was then 35, an electrician in the New York City courts. It about just 9 p.m. when he wormed his way into a knot of admirers lingering to ask questions at the conclusion of Kahane’s speech. Astride the podium, he shot Kahane at point-blank range, firing two rounds with a .357 magnum revolver.

In the ensuing frenzy, 73-year-old Irving Franklin, waiting by the rear door for his wife to finish saying her goodbyes, realized what had happened. He moved to block Nosair’s egress. But the killer shot his way out of the room, striking Franklin’s leg and bowling by him.

Nosair fled downstairs, out the door, and into the New York night. He expected to be picked up by his friend, Mahmud Abouhalima, whose yellow cab was to be the getaway car. But if Abouhalima was out there, the frenzied Nosair could not pick him out among the raft of taxis. He jumped into a different cab, jabbing the driver’s neck with the barrel of his revolver and ordering him to step on it. As livid Kahane followers pursued, Nosair tried to hide himself by lying across the backseat. The frightened driver screeched to a stop at a red light, jumped out of the cab, and gestured toward its rear. Nosair bolted, brandishing the gun to ward off one pursuer.

Nearing 48th Street, he came face to face with Carlos Acosta, a uniformed postal police officer who happened to be closing the Lexington Avenue office for the night. Acosta’s training took over: He quickly shifted to present a smaller target, while ordering Nosair to freeze. From about nine feet away, the assailant opened fire, striking the officer in the chest area. A second shot whizzed by Acosta’s head, missing by inches. Thankfully, he was wearing his bulletproof vest. The round deflected into his shoulder — painful, but not life-threatening. Acosta returned fire, hitting Nosair in the neck. The wound disabled Nosair, whom Acosta detained on the scene until the NYPD arrived.

The story stunned the City, where it is still remembered as one of the most notorious homicides in the latter half of the 20th century.

Nosair, we now know, was a committed jihadist, as was his friend Abouhalima. They were militant leaders of a cell forged by their fellow native Egyptian, Sheikh Omar Abdel Rahman. The Kahane assassination was a precursor to the wave of terror commenced by the 1993 World Trade Center bombing. In 1995, I led the federal prosecution team that convicted Nosair of murdering Kahane and attempting to murder Franklin and Acosta — in addition to charges arising out of the WTC bombing and a second, foiled plot to bomb New York City landmarks.

But we convicted Nosair only after he was acquitted by a New York State jury of murder and attempted murder. It was a verdict against evidence and reason — an obvious compromise: The same jury convicted Nosair of firearms offenses involving the gun used in the shootings. Yet he was acquitted nonetheless.

That’s why I’ve had cause to remember the Kahane murder over the last few months. This term, the Supreme Court has been considering the venerable “dual sovereignty doctrine,” without which there would have been no federal murder prosecution against Nosair. In Monday’s 7–2 ruling in Gamble v. United States, the justices upheld the principle: The Constitution does not bar a subsequent prosecution after a defendant has been prosecuted for the same conduct by a different government.

The Fifth Amendment’s double-jeopardy clause protects us from being “twice put in jeopardy of life of limb” for “the same offence.” Writing for the Gamble majority, Justice Samuel Alito explained that the extent of this protection boils down to what an offense is. At the time of the Fifth Amendment’s adoption, an offense was understood to be a wrong defined under the law of a particular sovereign; therefore, if there are two sovereigns, and the same act violates the laws of each, there are two offenses. A prosecution by one government that ends in a conviction or acquittal does not protect the defendant from being charged by a different sovereign for the same crime.

We are living in a low-crime era of suspicion against vigorous law enforcement (i.e., the law enforcement that gave us the low-crime era after decades of record crime). We are also living in a time when the federal government has expanded into a behemoth that would be unrecognizable to the Framers, with a criminal code so extensive that there are cognate federal offenses for most state and local crimes.

Consequently, objections to such prosecutorial advantages as dual sovereignty are in vogue. Notwithstanding the plummeting number of inmates in U.S. prisons, now at a nine-year low and still trending downward, we live in a “carceral state,” according to “criminal-justice reform” activists. These include Trump administration progressives and the president himself, currently crusading against a Clinton-era crime bill that New Yorkers of a certain age are quite confident the Donald Trump of 1994 would have backed to the hilt — second in enthusiasm only to the Congressional Black Caucus members who urged President Clinton to sign it as their communities smoldered in gang violence. (See our Rich Lowry’s justification of the 1994 crime bill here.)

Of course, fads are not a good reason to reimagine the Constitution, no matter how “organic” you may think it is. In our federal republic, the states are deemed to be sovereign, as is the national government. The Fifth Amendment has never been understood to bar federal charges after a state prosecution, or vice versa. As Justice Alito pointed out, the unbroken line of dual sovereignty precedent stretches 170 years. The original meaning of the double-jeopardy clause in this regard is sufficiently clear that Justice Clarence Thomas, the Court’s staunchest originalist, had to concede that his “initial skepticism of the dual-sovereignty doctrine” was not borne out by the historical record. (I note, however, that Justice Thomas’s concurrence rewards attention for its thoughtful consideration of the role of precedent, or stare decisis, in constitutional jurisprudence — check out insightful Bench Memos takes on this by Ed Whelan and Carrie Severino.)

Some observations are in order.

Prosecutions in the dual-sovereignty situation are rare. The Justice Department’s default position is that once state prosecutors have had a full and fair shot at convicting someone, that should usually be the end of the matter. There is a sort of equitable double-jeopardy presumption against successive federal prosecutions, even if there is no strict legal bar.

There are even higher hurdles in the reverse scenario. Some states, such as New York, have equitable double jeopardy written into their law. When I was a federal prosecutor in Manhattan, if we and the FBI or DEA got into a turf battle over a case with the district attorneys and the NYPD, we always held the trump card: If the feds indicted first, New York state law would bar the district attorney from proceeding with a prosecution.

Generally speaking, then, dual sovereignty is an issue only in extraordinarily serious cases, cases in which, even though the crime may be the same, the federal government has legitimate enforcement interests that are different from the state’s.

That is why, if dual sovereignty rubs you the wrong way, the Gamble case was a good vehicle for a challenge. Terance Gamble was convicted by the state of Alabama for being a felon in possession of a firearm. The feds then turned around and prosecuted him for the same crime. There is nothing in the Court’s opinion that implies a unique federal purpose that made a successive prosecution of Gamble worthwhile.

I admit to being surprised by that, surprised that the Justice Department would green-light a second prosecution if there was not more to it than that. In my nearly 20 years as a prosecutor, I believe I had dual-sovereignty situations four times — which is a lot (many prosecutors never have any). We did Nosair’s case not because he beat the main state charges but because the murder was part of an overarching international terrorism enterprise: In our federal terrorism case, we would have had to prove the Kahane murder even if we hadn’t charged it; it was important to show the jury why Nosair became an influential figure in jihadist circles, able to inspire attacks, participate in their secret planning, and help with recruitment and fundraising.

Of my three other dual-sovereignty cases, two involved mafia RICO prosecutions, in which we needed to prove prior state crimes (including acquitted conduct) in order to establish the racketeering enterprise under federal law. Strictly speaking, this was not a double-jeopardy situation because RICO (i.e., running a criminal enterprise through a pattern of crimes) is not the same offense as the state crimes that are RICO’s component parts (e.g., murder, drug trafficking, extortion). But obviously, RICO can trigger the same constitutional and policy issues. Like international terrorism, interstate and international racketeering is a concern for which the national government is uniquely responsible — meaning: A successive prosecution vindicates significant federal interests beyond the state’s interest in the safety of its residents.

My other dual-sovereignty case was a closer call. A local gang of drug dealers in the Bronx lured an undercover NYPD detective into a building with the promise of selling him several ounces of cocaine. Once he was in the apartment, a hooded thug came up from behind, made him kneel down and beg for his life, then shot him twice in the back. The detective miraculously survived (albeit with serious, permanent injuries), but he could not identify the shooter, who was acquitted in Bronx County Court. The Justice Department then agreed to prosecute the case at the behest of the NYPD and DEA. I wish I could say there was a unique federal interest, but the decision to charge the shooter federally with attempted murder in aid of racketeering was made mainly out of outrage over the depravity of the attack, the fact that it was carried out against a police officer in the course of his dangerous duties, and the certainty (based on other evidence) that we had the right culprit and could prove it.

It was the toughest case I ever had: A hard fought nine-week trial, after which the jury hung, 11–1 in favor of conviction. The jurors wept as they were dismissed. While frustrated by the holdout, several of them told me they were also frustrated by federal law: This was a straightforward attempted murder case, so why were they were forced to wrestle with the tough question of whether the shooting, in a two-bit drug deal on Bathgate Avenue, had occurred in interstate commerce — which seemed irrelevant to them but was the jurisdictional hook that rationalized a federal case.

I’m not sorry we prosecuted the shooter (who later pled guilty to drug charges). But the jurors’ reaction stuck with me. People’s common sense will often signal that something just isn’t a federal case, even if the prosecutor is sure he has valid reasons for making it one.

You can conclude, as I do, that the Supreme Court correctly decided the Gamble case, and still wonder whether the Justice Department should have pursued it after Alabama had already prosecuted. Here is what we should bear in mind: Constitutional protections are thresholds, not ceilings. The Fifth Amendment does not bar successive prosecutions in all situations, but that does not mean Congress is powerless to enact additional statutory protections.

As Sayyid Nosair’s night of murder and mayhem shows, there are worthy dual sovereignty cases. My sense is that, over the years, the Justice Department has been appropriately cautious in invoking the doctrine. If Congress doesn’t think so, one solution would be to require the attorney general’s personal approval before the federal government may charge a person who has already been prosecuted for the same conduct by a state.

Dual-sovereignty prosecutions should be rare. It would be a mistake, though, to eliminate entirely the authority to bring them.

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