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Amicus Brief in the News
There’s an Exception to the Double-Jeopardy Rule
The Supreme Court will hear a challenge to the “separate sovereigns” doctrine in Gamble v. United States.
by Garrett Epps, The Atlantic
December 5, 2018
In its brief, the Thurgood Marshall Civil Rights Center at Howard University School of Law reminds the Court that a change in the “separate sovereigns” rule, if not carefully managed, might end up making federal civil-rights statutes difficult, or even impossible, to enforce. “Although this case does not concern police misconduct or federal civil rights enforcement, a decision to abolish dual sovereignty inevitably will require reexamination of several interrelated double jeopardy issues that impact on federal criminal civil rights enforcement,” the brief argues. It asks the justices to take care that a decision in Gamble “not adversely affect or otherwise foreshadow any particular outcome when the framework of a civil rights ‘exception’ ultimately arises in future litigation.”
The Howard Law School professor Adam Harris Kurland, who authored the brief, has written a book-length study of double jeopardy and federal-state relations. In an interview, he argued that the issue before the Court is not simply the “intent” or “understanding” of the Framers of the Bill of Rights, but the structure of the post–Civil War Constitution, which envisions a federal role in protecting minority rights. Citing the work of the Yale professor Akhil Reed Amar, Kurland noted that the federal government needs, at a minimum, the power to prosecute state officials, such as police, who use legal authority to violate constitutional rights. Beyond that, hate-crime laws and prohibitions on housing discrimination might be affected by an overbroad opinion that overturns the “separate sovereigns” rule, he said. “I would expect that each member of the Court would not just make the decision in the abstract.” There’s little evidence that the present rule is unworkable, he added; an overbroad ruling might “unravel the complex tapestry of more than 150 years of double-jeopardy jurisprudence and stare decisis.”
Supreme Court to Consider Case that Could Affect Potential Manafort Prosecutions
by Robert Barnes, Washington Post
December 2, 2018
The federal government possesses the solemn obligation to vigorously enforce the nation’s civil rights laws, including the relevant federal criminal civil rights laws,” says a brief filed by the Thurgood Marshall Civil Rights Center at the Howard University School of Law. “Consequently, any modification or abolition of the dual sovereignty doctrine will necessarily impact the future direction of federal criminal civil rights enforcement.
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