we will heal our argument this morning in case seventeen six forty six gamble versus united states was a train thank you mr chief justice and may it please the court the separate sovereigns exception to the double jeopardy clause is inconsistent with the text and original riginal meaning of the double jeopardy clause there is no dispute that the text of the clause was understood to incorporate english practice and there was no practice in our sovereign success of prosecutions in all of english history argument the other side which has some traction i think is that it would be quite unusual for surprising for the new american republic to look to europe in a question like that because the one concern in applies both in the english situation as well is that it would be a significant intrusion on sovereignty of particular concern of the new new american republic to allow a foreign prosecution to limit the authority of the united states it and frankly it's surprising even in the english case i mean the relations between spain and england were not exactly the the best and why i mean if it were a spanish case involving the murder of englishman would the english court really have said well we tried in spain so we're our hands are tied well there's overwhelming evidence as i said that that is the english rule and there's no dispute that the framers were incorporating count so so there are a few requirements one it would have to be the same offense so you would often be anguished standard which is in fact the standard of this court today isn't clear i mean i thought when i read your brief well you're absolutely right but then i read the old the saw it over practice and now i don't going to say you're absolutely wrong but three times the court has considered your argument looked at those cases the english case hutchinson you know report later cases refer to it there was a complexity involving a special commission designed to tr people who had committed murder outside the country the king's bench didn't have authority the king's bench referred to that commission and that commission said well he was acquitted in portugal and therefore we will not try him in this special commission designed to dogma and does not reflect a principle of law that reflects something about the commission as it reflects something about the individual circumstances so far it seems to be no one has any idea so if you read gage you'll discover the other side's argument and the same is true of the early cases i won't go through all of them here it's purely cases we find some so no support you and some don't so i do we do they all support us al i do believe they all support us in the one the one case you mentioned that is potentially leans the other way is gage but it's a civil case and it's analogizing to hodgkinson for the purposes of of how a rule about recognition of civil judgments and there is no ancient rule rooted in talmud in roman law in greek law and canon law in ancient english common law to have your civil judgments recognized by another court so i'd b was i would say yes that is but there are three important qualifications on the rule first it does have to be the same offense so there is no dispute in in the case of the murder in portugal and the trial in england or the murder in  cape of good hope in the trial in england that those were the same offense they were both murder but sometimes that's a little more complex because it has to be the same elements that's the that's the meaning of s secondly and this is very important the second court has to recognise the competent incur concurrent jurisdiction of the first court that that's part of the english rule and there's no dispute whatever may arise in the international context there's no dispute that alabama and this the federal government have competent in concurrent jurisdiction over the offense of being a felon in possession so it least in this country the answer so today let's say a group of american tourists are murdered by terrorists in a foreign country and there is a prosecution in the foreign country for murder the same offense in a court of competent jurisdiction there and it's not a sham prosecution but is that a fairly inept prosecution lack of prosecutorial investigative resources in a poor country and it results in an acquittal or a conviction with a very light sentence and your position is that there could not be a prosecution here in the united states under the statute and acted by congress to permit the prosecution  individuals who murder americans abroad so let me address that in a few different ways what one the original understanding was that it plied between countries yeah well could you just answer whether that's correct or not and if it's not correct why  under the original understanding it would be up to the u s court to determine whether it's going to recognize the competent and concurrent jurisdiction of that other country what i'm saying is in the case of federal and state relations there is no dispute about that but i  mean i don't think this is a surprise question or a particularly difficult one it is a court of competent jurisdiction it is the court that in that case in that country has jurisdiction to try offenses for murder no question about that what you're answer murder of a british subject by a british subject on a british ship and for a long says it's pretty doubtful that england would actually recognize a u s acquittal in that case because england would say you have no basis for concurrent jurisdiction over that crime so that's the determination the u s court would make you don't have to reach that question in this case our point is that if that was the rule at the at that if that was the original understanding of the time of logan we do have to really just we do have to reach that question because your position logically would extend to justice alito hypothetical and if prosecution is part of the national security efforts of the united states federal prosecution in your position would suit stanch really hamper those national security efforts so am saying the reason you have did reach the questions obviously this is a case involving an alabama crime and and a federal crime but the logic of your position logic of our position though but but the point is whatever whatever the court's ruling in that case word ever i wonder whether you have perhaps exaggerated in saying there's a mountain of support for your position but your main support is a a rumor of a decision involving a prior prosecution in portugal and then the possibility of the subsequent prosecution in england so it's a foreign prosecution he said it's true that's not what's involved here but your your argument is based on foreign prosecutions the original understanding was based on foreign prosecutions the point is and on the question presented here a force of lies between federal and state government there is a principled basis for limiting this to governments bound by the double jeopardy clause if the court wanted to do that and mr cheney did that in inc i think the point is that you're asking us to write an opinion which is based on this it original understanding and the original understanding as you put it applies between foreign countries and it must be that our decision would apply between foreign countries the original understanding is it would and there are a few waterfront admission that's what your brief is all about that's what you were asking us to say that the original understanding was that there would be no jep double jeopardy bar between different sovereigns when those sovereigns are foreign countries so how could we avoid that consequence well of first of all i'm not sure the case is ever going to arise but in this is state of alabama and federal government and it's undisputed concurrent jurisdiction the rules are rule so which one is the u s going to recognize the current could concurrent jurisdiction of another country and again i want just wanted to say that murphy the waterfront commission is a case where the court held that the self improvement ation privilege applies cross jurisdictionally the court subsequently limited that to parties bound by the double jeopardy clause so there is a principled way of doing this if the court ever gets such a case and wants to do that and i would play to emphasize that is it would be x no one in any of these briefs has pointed to a pattern of inner sovereign successive prosecutions between nations that is going to be disrupted by our rule even if the court were to suggest that it's it would also apply between four and  differently through all this and barkus right i don't think the court has been ever given this question a full and fair opportunity certainly posting corporation and it's important to understand how the holding of this court arose there was of course a suggestion and fox feel heigho in eight hundred forty seven that there might be a separate sovereigns exception it was based on a non incorporation national but no one actually dictates the purest dictum because there were no inner sovereign successive prosecutions not only not in that case but no practice of them the first time the court had a chance to actually hold whether that's permissible was lanza and i think it's worth reading the respondents brief and real in lands lands as proof that there was no representation of the position we're incoherent in the court so i think what counsel is arguing is that this separate sovereigns exception doesn't apply in the particular context of the eighteenth amendment given the concurrent powers of the states and the  right excuse me none of the concerns you've been talking about there were presented in part because so so i'm just just darkness was decided at the same time as a body about these the case that answers this particular question about a remarkably says we're just going to hear it to a landslide because none of the issues that are presented today are different from what was presented lanza which is a really remarkable statement and abati is also pretty incorporation mark this obviously is a due process case under the burden of connecticut and the evidence that we're presenting here was not fully presented in barker's the court could use a little bit more about why you think incorporation or the lack of them cooperation had anything to do with this quest yes  honestly makes no sense that incorporation would be the basis of the doctrine because if a corporation were the basis of the doctrine you would have a doctrine that only cuts one way and other words it would it would the court would have held that the federal government can't prosecute an individual for the same offense after a state prosecution but not the other way around so the fact that there's not a one ray ratchet but that in fact it's a symmetrical rule suggests that incorporation has nothing to do with it at all i think what the court was getting at was the i think it was the the baronial logic of it was that offense must be in federal offense because the double jeopardy clause only applies to the federal government that's what the court was getting at that's what was picked up in a way and land and that's what's no longer true so as a as a pure i don't think is a legitimate rationale to begin with because it conflates two things that are different to which government does the clause apply and what prior offenses count for double jeopardy purposes because that was the rationale it's interesting i don't know matter but you know this is an one hundred seventy year old rule and it's a one hundred seventy year old rule that's been relied on close on thirty justices have voted at one time or another specifically for this rule not in application of this for this rule and you know i'm part of what starry decisis is is a kind of doctrine of humility where we say we are really uncomfortable throwing over hundred seventy  rules the thirty justices have approved just because we think we could kind of do it better well i mean i disagree with one hundred seventy years because again it's it's dicta in dicta and fox feel heigho and i think it is important to look at the rationale when the court finally had an opportunity to decide this and make a holding on it and that is lands and there's nothing resembling an argument for the original understanding the double jeopardy clause was presented in l uniqueness of our system of government because there wasn't and isn't a comparable suits system in england at the time there were not separate sovereigns there was one sovereign in england and one of the cases you rely on involved wales and so the application of the rule there makes absolute sense in that context but the lancia of all of her cases relied on a simple theory  of what the sovereignty between the states and the and the federal government are and you haven't really explained why that logic is not sensible well the logic of the english rule as reported in numerous treatises from the early eighteenth century through the twentieth century still the rule today is that where there is a court of current current jurisdiction even if it's i and other government that has concurrent characteristics and then an acquittal there bars a subsequent process and the logic only current case that describes the english rule that way current case a current case something so i refer the court to two things one the famous professor grant article success of prosecutions tracks the law of england and the british empire through through the into the latter half of the twentieth century there was a case in  understand it i mean a case i'm asking i have spent a certain amount of time in these old cases i think that barcus in this court says there were three four with you three against you two undecided i don't find it quite as clear but i'll go back and look at them again but suppose you are right maybe marbury vs madison was wrong maybe there myside to all kinds of things look at the door we're opening up and here you've read the briefs there are there are briefs that say remember the civil rights world where people were with victims of a different race simply killing them or worse and the state would just raw don't worry they'll never convict and they didn't or think of the brief here with the indian tribes were saying that we need this kind of thing for abuse of women and think of the case of prohibition and think of the cases that you've seen now what i look for in your briefs which i haven't found yet but for the military is is it really the case or not that as a practical matter if you go back the last ten years or five or whatever it is you found a whole lot of cases where people were prosecuted twice by different sovereigns for what was the same thing because i didn't see them listed here in any brief but for the military and therefore to me that's an important question well well we can't know for sure how many successive product course i don't expect you know i'm sure they will and i well and i want to say the reason i'm saying we can't know for sure is because the government's petite policy is a state secretive policy that they implement and they don't really share data on it other dictate what the constitutional rule is there's no minimum number of constitutional violations that triggers this court's duty to enforce the constitution but i think there's every reason to believe that the use of this inner sovereign prosecution particularly federal after state deborah jeopardy if each has a different element the other doesn't have than yes that's enough to take it out of double jeopardy and that's that act that makes sense when you're talking about federal and state government because if the federal government has made a considered decision that there's some substantial federal interest here they can write they can define the crime in a way that's probably going to be different than that and then crimes that states prosecute which are local crimes  yes yes so so so one i want to note that the the on the civil rights concern the a c l u supported also other progressive organizations who supported us the howard civil rights clinic the howard university thurgood marshall's civil rights clinic has filed a eighteen u s c two forty one and eighteen u s c two forty two well that would be the case of the block program rule holds but your interpretation of the term offense in the fifth amendment is perhaps inconsistent with the way this court has interpreted that that concept in block berger cases isn't that true i don't think it's the least bit inconsistent i think if you look at if you look at the current understanding the defined by a particular sovereign i don't believe he actually said that and gravy corban and i don't think the court said that in dickson there was nothing sovereign specific about it the government tries to say that it's it did it's necessarily a rule of legislative intent which makes it sovereign specific but that is not what there is not with the english the word he said and i go back to the way you began when you told us that there is a mountain of evidence supporting your interpretation of the original meaning of the double jeopardy clause put aside hutchinson and put aside the case involving welsh law that just the sort of mine were referred to can you cite any seventeenth any sixteenth or seventeenth or eighteenth century british case in which a foreign judgment actually barring a prosecution in great britain or in great britain will it that it's its hutchinson the actual holding of roche was that the conviction would be a bar it's true the mother says and there are questions about roche what in the version of the opinion that was available at the time of the founding was hutchinson even cited hutchinson wasn't cited but roche on its own on its own adopted it so that when that was the way the originalist inquiry happened if you want to know what the public understanding of the rules you have any evidence of that most of these three that these treatises with the exception of blackstone which was a real lawyer bible at the time of the founding but there's almost nothing in blackstone about this these other treatises were well known to the members of the first congress and to the the members of the state ratifying conventions they had these treatises on their bookshelves and that was what they look to you have any evidence of that yes these traditions were all in all the traditions we cite were available in america they're well known treatises the polar treatise which the government seems to enjoy taking potshots at the bully treatise it was written by sir francis butler who was a member of the king's bench at the a bail notation and that is the only thing that survived in the scholars scholarship is wong noted that that was from one phase of the case but it doesn't matter it doesn't matter because we have the king's bench repeatedly saying this is the rule this is the  rule and the government cites not a single authority to the contrary stating an opposite rule apologize for ping pong you from the from the framing back to the present but i'd like to return you to justice briar's question  about the impact this might have on civil rights organizations and and others you know the start decisis considerations one of which would be are we up setting settled expectations currently well i don't think that would have  forty one to forty two to forty one is conspiracy to deprive someone of their constitutional rights under color of law to forty two years actually doing it those aren't going to be the same offenses as so murder or an assault now now i also know that girds may be less clear than you think but maybe not that this court several times is looked at the history and they said it's inconclusive and therefore and now we have a rule that's been there a long long time and if we're going to go back and look to whether this court got the history right in cases i have my own candidate is that so i don't really know the seventy so i will i'm problem is that big my problem is is this a basis for going back the same one that the same question but i haven't heard the answer to justice kagan so so so to two responses one could i fit if i could finish on the civil rights issue i just wanted to add that the federal government can take control in all manner of ways in a particular case they can take custody of someone via an ad bridge if congress if states were becoming uncooperative in the area of civil rights in this were really a problem which it doesn't seem to be today the federal government could pre amps certain state crimes or any number of ways that the federal government could take control if in the future there were these problems that we can't forsee this court has made over the years but why this one why should we care about this one well well we should care because there is an ancient right not to be tried twice for the same crime and the regional understanding of the double interrupt but i think i think we've got that ok i think it's just a practical question it took until last year for this court to over why is this case practically today important it is it is important for the it is important because we currently have a rule that allows the federal government to come in and decide they didn't like the way a state prosecuted someone or the result of the prosecution of the sentence they got and re prosecute them it's precisely what happened in this case there's every reason to believe that it happens with some regularity and the court can put an end to it but i guess i'll guess  the the question that underlies justice briar's question about civil rights is something along the lines of you know that's consistent with our structure of government we have  regulation and dual regulation often means dual punishment and if we were to adopt the rule that you suggest it might very well be that either the federal government would have to subordinate its interests to the states  or that the states would have to subordinate their interests to the federal government and one of the things about our constitutional structure makes which makes it unusual is that is that both sovereigns are understood to have significant interests that they have the capacity to pursue but where they have this concurrent jurisdiction over something that is the same offense that is illegitimate for reasons that were understood at the framing take the cases of take take for long that's a case where multiple saw friends have concurrent jurisdiction over robbery at sea and it was well understood that a prosecution by one would bar across you know you for a long a little bit differently as actually separating out the offense of piracy which was an offense that sort of was in common versus the offense of murder which for long says yes each different jurisdiction can prosecute the if the murder of a british subject by a british subject on a british ship i guess they want they weren't they weren't they weren't drawing they were they were just applying a concurrent jurisdiction rule and they were saying why would the us have concurrent jurisdiction over that i suppose my main question which actually goes back to just discourse at this question because just such has been trying to lead you away from something and i'm a little bit also confused as to why you are arguments seems frankly a little bit one note you know your brief and now your argument just all about the original jurisdiction and there are some people on this bench that think that that is the alpha and omega of every constitutional question but there are other people on this bench who do not who think that one hundred seventy years of significant practice w thirty justices have signed on to a rule that you're going to have to give me more than the fact that you know actually pretty early on in the republic they decided that that was not what the original ger understanding was even if they're wrong and so this is your opportunity to give me more ok one thousand nine hundred twenty two i would say but my opportunity and response to your you're offering me an opportunity to give you more i would tell you incorporation incorporation incorporation of corporations the court has said its own precedents are that incorporation makes a big difference for purposes of stari decisis so look at elkins and look at look at murphy we waterfront commission after incorporation the federal government and the state government should be able to combine to do that which they can't do alone part of part of the original understanding as well was start decisis them start decisis is a principle in my view rooted in article three as federal seventy eight points out in this justice kagan points out it's a doctrine of stability humility that we take very seriously and the reason that what the bar that you have to clear i believe is not just to show that it's wrong but to show that it's grievously wrong agreed to slee wrong something meeting a very high bar because starr decisis is itself a constitutional principle and given as justice alito says the uncertainty about the history can you clear that bar so two questions is that the right way to look at it grievously wrong and and two how can you clear that given some of the uncertainty so so i am not sure grievously wrong is the right way to look at it when you're talking about in unconstitutional law enforcement practice because this court has never upheld it and that's a big let's begin the question the whole point is that their prior decisions going back as justice kagan says many years reaffirming the stock train and the question is when are we going to upset that stability when are we going to depart from the humility of respecting precedent and over rule a bit socially it has to be your brief uses agree just a wrong i use the term grievously wrong and i agree this this rule is agreed just lee wrong if it's a rule that there was no practice for all of english history no practice for the first century in this republic that alone i think speaks volumes and the i think the going back to incorporation i think in addition to just how wrong the rule is as explained by many jurists in many scholars over many decades i think incorporation that the court has never had a full and fair opportunity post incorporation to revisit this rule but i guess how is a practical matter is this is it a race to the courthouse i mean if prosecution bars the subsequent one the state and federal government may have different perspectives is that whoever can impanel a jury first is going to block the others so i don't think so so first of all the norm in the country is cooperation between federal and state authorities there are just speaking of one agency in one area well it surely wasn't at this entirely true at the time of the civil rights actions in the in the sixty's and seventy's it wasn't true at the time of the fugitive slave law well as a practical matter i think it is true today secondly blocker has been subject to enormous criticism because it is a defendant friendly enough when you apply bra block or oftentimes these are going to be the same  this is a critical critical point we have had an experiment in this rule the experiment is that between twenty and thirty seven states already bar successive prosecutions after a federal prosecution or by another state as a matter of state law and we're is the rates to the courthouse concern in those states where are the law enforcement problems in those states they don't exist and i don't think texas and the government of everett's ever even really respond to that point if i may mr chief justice i'd like to reserve the ring for my time thank you counsel you mr chief justice may it please the court throughout its history this court has correctly recognized that the distinct and separate sovereign powers of the state and federal governments make state and federal crimes different offenses under the double jeopardy clause petitioner provides no reason for this court suddenly to conclude that it's been wrong all this time and overturning one hundred seventy years of precedent on this issue is going to invite a whole host of problems that this court has thus far been able to one hundred seventy years i think i think your friend is right isn't it that we have not had a full consideration an exposition of the issue in any of our precedents i don't think that's correct your honor i think as you yourself pointed out earlier in the argument the historical point that he is making here and that is the centerpiece of his argument that even prosecutions by a foreign sovereign can bar domestic prosecution by this state or by the united states was fully before the court and barkus the grant article that is all over the petitioners brief and that petitioners counsel cited argument today was cited by justice black in his dissent in and all the authorities on which is are lying with the exception of roche which correctly understood doesn't actually announced this rule were identified by justice frankfurter for the majority in footnote nine and the court found these authorities to be successive prosecutions and separate prosecutions are sometimes necessary to vindicate particular sovereign interests to take the civil rights brief that my friend was just mentioning they think that this court if it goes for the position the petitioners honor those aren't the only civil rights charges we bring so in the recent shootings by the recent shootings of the synagogue in pittsburgh and of the african american church in charleston we've charged those with offenses that  can get into the details if you like but they're essentially murder plus a bunch of elements and those would be know your honor murder would be able to considered a lesser included offense of those offenses if the offenses defined by different sovereigns were considered the same as petitioners erging but that's not even the only consequence even the there are a number of categories of cases that would be put issue here and i can get into more detail on those in a moment but before i get to that even the possibility of claims like this creates adverse consequences for law enforcement for legislatures and for courts where you would you must think that there's some problem or you wouldn't have the policy i mean that's that's an odd defense of this of the the position to say well we take care of it somewhere else so don't worry about it well no your honor i think there are a number of instances including the double jeopardy clause just last term we're  constitution doesn't solve every potential policy problem that may arise and we leave those a lot of those questions for legislators or for the political branches in general i think this is actually been a real success story of that because he was just asked if he could point to any significant practical problems and he couldn't but i can point to a lot of practical problems that are going to rise of the sport adopts his rule so in the law enforcement side just the possibility that this could happen is going to deter cooperation encourage aggressive prosecutions a race to the courthouse and defendants trying to play each sovereign off against the other where one sovereign will have the ability to unilaterally are going to weigh the other sovereigns ability to enforce its interests and i'd like to get  which state and federal interest would be blocked but speaking to this particular case i don't think there's any dispute at least by petitioner that the federal government has a substantial interest in regulating access to the interstate market for firearms by someone who has twice fired weapons that endangered members of his own family and other members of the community the only question is whether that substantial federal interest was vindicated when he entered into  deal with the state where he wound up as a practical matter not receiving any additional time in prison for the firearm offense but i think that's exactly the problem that is practically more apparent today or at least a potential concern that council might have addressed and that is with the proliferation of federal crimes i think over four thousand statutes now and several hundred thousand regulations the opportunity to  for the government to seek a successor prosecution if it's unhappy with even the most routine state prosecution is a problem just as brennan was concerned about it and marcus in that case there was some evidence of manipulation even by federal authorities to secure a second conviction in state court why shouldn't that be a practical concern we ought to be more concerned about today well let me s few things about that your honor i mean the reason we have the pettitte policies we do understand that excessive prosecutions are very often inappropriate and we try to reserve them for circumstances in which the federal interest hasn't been vindicated but i think to the extent that that there's a concern about successful prosecutions it's not so much success of cusins based on a particular law of one sovereign or another it's excessive prosecutions for the same conduct all raised those concerns but everyone agrees that excessive prosecutions for the same conduct don't raise any double jeopardy concerns that's why the public policy mr chief justice is somewhat broader it covers if so is a subsequent federal prosecution following a state or federal disposition for the same act or transaction but to get back to your question just discourse which i think that makes the double jeopardy clause and not necessarily the appropriate vessel vindicating that concern well you know i wonder about that because in our prior cases we hinged on two things and barkus most other places one was incorporation and we were concerned that the federal government would be at a disadvantage compared to states without this rule because states were not bound by the double jeopardy clause and could pursue a second prosecution after a failed federal prosecution so why should the reverse be true we thought that rationale is now disappeared with incorporation and we've since revisited a very similar similar issue in the fourth amendment context in elkins where we used to allow federal prosecutors to use illegally obtained  evidence and now we don't so that rationale seems to have in fact changed over time so that might be one one argument and then and then the other is again with the with the in barcus we relied on the on the and elsewhere on on the promise that prosecutors wouldn't do this in routine cases and you know at least to summarize this might look like a pretty routine case where as did barcus itself and why should we be concerned about those two things when we don't view this as a routine case we don't first of all you have to understand that the set of cases that could even come under the present policy is already a very selective group the federal government doesn't charge very many criminal cases as compared to the states and then we don't number of pettitte policy approvals each year is about one hundred and this case is important to us because it's part of a program called operation safe neighborhoods th case studies have shown by focusing on recidivist offenders like petitioner we've reduced crime in some neighborhoods by up to forty two percent but even if you don't like this prosecution let me give you a few other examples of the kinds of cases that are going to be barred under his rule first there's the foreign judgment problem that the court was discussing with petitioners counsel and that's not just a hypothetical problem that's a real one and let me give you a real example in two thousand and three the fark rebels in colombia kidnapped american journalists and held them hostage for five years and we have open indictments on them and when there was the peace accord between the colombian government and the fark rebels the charges against them in colombian court were dismissed now i'm not certain whether those charges jeopardy actually attached in those cases under colombian law or exactly what the elements of the colombian law were but that's precisely the inquiry we don't want courts to have to have and we certainly don't want to have to file as the government why not  of we do it in civil cases all the time right and we we won't enforce judgments that are shams we won't force judgments when there are different elements we won't enforce judgments when jeopardy equivalent has attached so claim preclusion would apply but why is it that civil defense it's corporations business people get the benefit of this rule but the criminal offense at least amongst us usually are on and there's going to be pretty among the parties here are the colombian government had a perfectly legitimate sovereign reason for giving this conduct once the rubble in return for which the rebels admitted it and got amnesty but the reason doesn't apply to the federal government and the other to this and i can give you other examples as well but just to finish this one up his only solution to this is to ask the federal government to make a filing in u s district court asking that court not to respect the judgment of a colombian court bombers has been tried in pakistan and the us might want to try that bomber as well his rule would preclude that and again his only solution is to ask the u s court to declare that some foreign court is not a court of competent jurisdiction and  can for to your question before about what european countries do it's not correct the european countries all have his rule germany italy france belgium and austria are all countries that follow the same rule we do in two against thomas case that my friend cited it's become apparent recently that they do adhere to that rule although even in regina against thomas the prosecution i believe was allowed to proceed for other reasons our canada supreme court has reserved this question and the idea that there is some international norm that sovereigns can't separately vindicate their own interests when they're implicated is simply not a rule but let me focus just on what let's just turn to domestic  of government state and go federal these a b an individual federalism is usually invoke because it's a protection of the liberty of the individual but here so i think the courts recognized in older cases like cruickshank which was from the one nine hundred century and it's recent first decision in bond against united states that one of the things that american citizens get by being citizens of both  state and the united states is that there are two sovereigns that can positively legislate that is pass affirmative legislation to protect them so in the civil rights era when the states weren't affirmatively protecting civil rights of their citizens enough they're also american citizens and the united states stepped in to vindicate those entertain at least a different crime n murder so your honor there are civil rights offenses on the books now like eighteen u s c two forty nine which preclude criminalizes causing bodily injury to someone for racially motivated reasons that could be and that sovereignty was divided exercise of sovereignty was divided not multiplied so it was divided between the federal government and the state governments ninth and tenth amendment and that it i awkward isn't it to say that there are two sovereigns who get to multiply offenses against you i can't think of another case where federalism is used as justice ginsburg indicated to allow greater intrusions against the person rather than to protect friends from texas pay both state and federal taxes it's why businesses are regulated by both the federal and state governments and why everyone knows that in act and even petitioner agrees the same act can be both a state and federal crime and what about the it exposes defendants to prosecution for the same acts in both federal court and state court i think that's right your honor would respect the judgments of the legislatures as to how they wanted to craft their crimes block burger more have only because there are two governments then then they would be if they were subject only to one unitary government that's a necessary consequence of our system of the court has repeatedly recognized it may i ask mr fagan do you think that there is a prospect of abuse where two different governments can use the possibility of prosecutions as a bargaining tactic to get defendants to agree to plea deals is is is that something that happens  regularly i'm not really familiar with that being a serious problem under the current system i think the main concern would actually be the opposite under the new unprecedented system that petitioner is asking this court to adopt where someone could go into to the state prosecutors someone let's say someone's caught in california with one hundred kilograms of marijuana which is a misdemeanor in california as the states point out in their brief but it's a felony under federal law and he agrees to plead t state defense and therefore that would bar a federal prosecution for possession with intent to distribute which would be considered under his rule you agree to remember if it is the situation was in d c not so very long ago when we had not separate sovereigns but here's another problem we've run into in puerto rico now that we can't charge seven we can't rely on the separate sovereign understanding of the double jeopardy clause there is that the territorial prosecutors in puerto rico don't do the prosecution of crime in quite the same way as the federal government does they're more concerned with crime of a transactional nature rather than necessarily developing longer term investigations and so one thing that they do is they frequently prosecute  drug conspiracies that last only for one day an agreement just to sell particular drugs from particular cation on a particular day and at least one district court has dismissed a federal indictment for broader drug conspiracy that occurred for over a range of years on the ground that it was simply a greater included offense of the smaller puerto rico drug conspiracy and that's just a consequence of the different ways in which the state and federal government use their resources in the ways in which they want to prosecute crime or another difficulty that's going to rise here is prosecutions by the federal government to follow tribal prosecutions which i think are about two thirds of the of the few hundred successive prosecutions that we bring each year and as this court recognized a couple of terms ago in  united states against bryant the federal government plays a critical role in curbing the serious problem of domestic violence against native american women tribes are limited generally to prosecuting only for mr minors so if they find that someone has been committing domestic abuse the most that they can do is prosecute that person for a misdemeanor under federal law eighteen u s c one seventeen and a we can prosecute for recidivist domestic abusers for a felony and the tribes tribes so the tribes have limited jurisdiction as a consequence of federal law some tribes are allowed to create more serious offenses in exchange for providing more protections in their courts very few have decided they want to make that tradeoff because it would require them to dispense with some of the traditional accrued for months of tribal justice that are important to their traditions as the court noted united states against wheeler justice in tr courts is more focused on restitution between the defendant and the victim and lust focused on incarceration and deterrence and the kinds of treatment programs that they can receive in federal prison but that they're not going to be able  just wonder if you want to see if you words on a slightly different thing which i don't know if you have anything to add to what in my mind but i've never been able to formulate a principle or and i looked at the history it's not just a footnote nine it's the whole discussion in frankfurters opinion which is on your side but they have a pretty strong argument on their side then you've pointed to some problems and i'm sure they're real ones but they don't seem like overwhelming ones in terms of how often they occur then you say well it's one hundred cases where this applies every year in the federal partner also twenty states probably fifty thousand federal prosecutions something like that one hundred cases and this is been around for seventy years at least one hundred seventy possibly or somewhere in between so how much is supposed to decide in your opinion about whether he wouldn't have brown versus board but if it never holds we're really in trouble in terms of the stability of the law ok how wonderful this has occurred to this problem and do you have anything to say that will help me decide this kind of balance your honor i think they need to show a lot more than they have shown here in order to overcome this court's consistent understanding throughout its history of what the double jeopardy clause means as justice cavanagh pointed out earlier i forget what adjective you used but egregiously thank you have to show that this was grievously wrong and they haven't come close to doing that i can talk about the history in a second but just in terms of the consequences there are very serious consequences the consequences are going to multiply if you have if you adopt their rule because everyone understands how to operate under the old rule their rules going to create problems for courts comparing offenses and this issue hasn't come up of course because the court has understood that federal and state crimes are not the same offense under the double jeopardy clause don't don't all your problems go away if you're the first to file if you win the race to the courthouse and ice would assume the same is true with the states and so what's most likely is that you in the states are going to sit down and develop a way of coordinating which cases you're going to file in first and which ones they're going to file honor i'm not sure that's true because i'm not sure that we're always going to cooperate and i think the history of this nation has shown that the federal government and states do not always see eye to eye on matters of criminal law enforcement and there are going to be cases in which each has a separate interest of indicate you could imagine federal prosecutors in california as a protest against i'm sorry state prosecutors in california as a protest against federal marijuana laws allowing anyone who's caught with fifty kilograms of marijuana to walk in and plead to a misdemeanor to frustrate federal prosecutions they're also going to be cases where the state prosecutors simply don't have perfect information or maybe the federal prosecutors don't so the state prosecutors might see something and just think it's a simple assault and what they don't realize is that it's actually part of a rocketeer in conspiracy and i'm not making up these examples your honor we see all the pettitte waiver requests and the examples i'm giving the court are real cases that have that you can't cooperate you could solve by getting to the courthouse first well then we're not your honor then if there's a race to the courthouse it deters state and federal prosecutors from cooperating even at the investigation stage you know enough to take my word for it if you look at the state and local government brief that's exactly what they say can i ask one question on and start as i says we haven't explored so far and that's reliance the government doesn't make a reliance argument here as far as i can tell and so this is going to be some systemic trouble if we were to change the rule and confusion but you kids you haven't suggested don't think that a prosecutor has a right to rely on an unconstitutional rule to put someone in prison i mean that wouldn't be a thing would it well your honor i do think that did should weigh heavily on this court that what it would be doing would potentially be letting people out of prison based on  think the rule that is at best if we were can vince though the constitution stood one way against you let me just hypothetically you would you wouldn't argue that the government has a reliance interest to keep people in prison despite an unconstitutional rule would you go on i think if they had shown the kind of monumental or grievously serious evidence that they would need to show in all of the about our decisive let's just say fifty one percent they persuaded us fifty one percent that the constitution's meaning under any sort of interpretation just hypothetically is against the government would it be appropriate in the government's view to keep people in prison in those circumstances well your honor it's hard to put in an exact percentage on it but i do think they would have to show this isn't just a preponderance of the evidence tester sto means nothing there is also something about the reputation of this court and ensuring that this court doesn't lightly overturn its precedents and thus there is some monumental reason to do so and they haven't shown that really they haven't  such reason to do so today i mean one one further point i would make on that is that their entire argument is based on a historical principle well that no court in united  ever adopted which would be this foreign judgment bar and simple and the result that they would reach would be i think frankly unworkable they're not raising any arguments that this court hasn't already considered and and in terms of i'm sorry your honor i had referenced earlier and as the justice kagan the idea of story decisive representing something about judicial humility and i can't think of anything that's more antithetical to the issue of humility than deciding that this court all of a sudden has discovered some historical principle that has eluded its predecessors going back one hundred seventy years these are also not is of course a general principle of individual liberty and we've often said it's just points out that federalism is designed to protect individual liberty i think your basic response to that is that actually that's wrong in certain respects federal system of separate sovereigns means your individual liberties infringed more often by double prosecution double regulation double tax evasion is that your answer do you have an answer other than that in response to the individual liberty concern no your honor i think it's a very narrow and not correct view of liberty only to look at the liberty interests of the defendant there also the limited perspective of negative liberty liberty freedom from government oh pression government regulation your rule strike and this is what they point out as a as an infringement of basic concepts of individual liberty you didn't get me the first time you're going to take another crack at it well your honor i i don't think that's the right way to think about it i think the framers decided that they were honor and they were going to protect liberty in a particular way and the way they were going to do that is by vesting sovereign power in the states and in the united states which could both positively enact laws and protect people who may be victims of crimes and they did not have any understanding that the united states or the states would be precluded from vindicating their distinct sovereign interests in their own sovereign spheres by the unilateral actions of the other sovereign thank you thank you mr fagan general hawkins you mr chief justice and may please the court i'm here today on behalf of a broad and diverse coalition of thirty six states collectively representing over eighty six percent of the u s population the states may disagree with one another about various policy issues but we are united here in urging the court not to overrule its longstanding interpretation of the double jeopardy clause to rule for petitioner the court would have to read offense to mean conduct without regard to sovereignty versus well your honor it's true that there are twenty states that haven't acted a general sort of bar on their ability to bring a prosecution based on conduct that was already prosecuted by another sovereign there are some quirks and differences within those states but i think it's important to note that fourteen of those twenty states are part of our coalition today they have signed on to our am because brief urging the score to leave that decision and those types of policy considerations to the states which are already actively legislating in the syria take the commonwealth of virginia for example the commonwealth of virginia generally bars a prosecution by that state when the federal government has already brought a prosecution based on the same conduct but as recently as two thousand and three following the nine eleven attacks virginia amended its law to make an exception for terrorism cases other parties have spoken about potential exceptions related to civil rights for example i think the virginia example shows that states are capable of recognizing the fairness concerns and the policy concerns that petitioner raises and legislating appropriately in asking the court not to overturn longstanding interpretation we'd like to emphasize a couple of points first petitioners position would create a litany of practical problems that could harm state interests and i'd like to go through a number examples of those first imagine a situation in which a state a has a tougher penalty for a particular type of conduct than does state be that of course is the fact pattern of heathy alabama under petitioners you state a would not be able to vindicate its interest in that st prosecution if state b were to go first that could have that situation could also play out if a state has a sterner penalty for a particular act then does the federal government this court of course saw that in the screws case where the state penalty was much stronger the federal police we also see that in for example the area of robbery under federal law a robbery of a us letter carrier carrying us mail is punishable by up to ten years in texas however robbery is punishable by up to twenty years again under petitioners view texas would not be able to vindicate i think what your friends on the other side might say to that is something along the lines of well it's one thing to pick the higher penalty in the you know let the state petitioners theory suppose that a state had a particular interest in prosecuting a drug kingpin in that state suppose you public enemy number one in a given state well unbeknown to the state the u s government is also looking at that kingpin in connection with a different federal prosecution and unbeknown to the state the federal government could enter into a plea agreement with that criminal in exchange for testimony and some other matter that's of great concern to the federal government the states might not know about that until it's three for the same kind your honor i suppose that may be theoretically true but as my friend from the federal government indicated we don't have any evidence that that's the case and i don't believe that petitioner has pointed to any  as was discussed earlier we could also see this play out as to foreign prosecutions imagine a situation involving a international drug lord of our type for example suppose that florida could show that this  individual had trafficked large amounts of drugs into the state of florida and devastated local florida communities well if a local prosecutor and a local met in jury were to try and either acquit  potentially give him a light sentence or something like that that would under petitioners theory forever prevent another country we can certainly imagine that being the case in many scenarios other practical concerns that would arise as my friend from the department of justice indicated would involve races to the courthouse and competition between states and the federal government rather than cooperation all to the detriment of law enforcement and even setting aside these practical problems there are a number of other concerns that petitioners view would raise first under petitioners view  courts around this country would be for the first time asked to apply block berger across the federal and state divide that is no easy thing to do this court has experienced a taste of that in its armed career criminal act jurisprudence where the court has tried to do something similar to that has developed a modified categorical approach and other documents to try to accomplish that it's no easy matter to do that that problem would even be compounded if this court were to declare a ruling for a petitioner to be retroactive retroactive would have to go back through history and apply block berger not just across the federal seat divide but also as a historical matter as to offenses that may have changed over time finally setting all of these practical problems  aside i think it's important to note that petitioner seeks to take us into uncharted waters the rule that he imagines has never been the rule in this country until potentially now the states and the federal government have never had to be concerned about who goes first under the law of unintended consequences surely there are practical problems that would arise from petitioners position that we may not have even thought about today unless there further questions thank you counsel thank your honor mr chaiten four minutes remaining but i just i guess i'll pick up where he thank you mr chief justice i'll pick up where he ended which is that this has never been the rule in the country in this country today it is the rule in at least such twenty states it's the rule in thirty seven states with respect to certain crimes and it all seems to have worked out ok i did want to i would want to return to the issue of stari decisis and respond to what they were saying we we have a legal framework for answering stari decisis questions it's a lot of starry decisis and i think it provides some pretty standard guidance on this we we have to be right on the merits that's true but if we're right for assuming we're right on the second there has been a massive expansion in federal laws this court has recognized that was recognized by this court in murphy and opens as the kind of change factual circumstance that would that would justify revisiting an issue there in another reliance and of course reliance isn't really a relevant issue where you're talking about an unconstitutional law enforcement practice and finally the the this is a constitutional case it is not a statutory case in the courts approach to starry decisis has been different in constitutional cases as you think what is less reliance here than there was on the issue of the miranda rule well the issue is whether or whether you are continuing unconstitutional law enforcement practice and my point is the court has pointed out here is that arizona the fed the court has never allowed continuation of an unconstitutional law enforcement so you just you think that any decision any constitutional decision of this cour imposes any limitation on any right in the bill of rights that affects criminal procedure is always open to reexamination without consideration of stari decisis because doing that would expand the what's wrong with with what i'm thinking which must be something wrong with it the very often this court has said the rule of constitution is x but we're not going to apply it retroactively because to do that would mean vast release of prisoners who have committed crimes you know that sounds like reliance and it sounds like reliance on a law that the court has said is unconstitutional which is the preceding scituate i don't think it's a reliance issue on in dressing the underlying merits question and it's just whether to apply the law retroactively incidentally and i don't don't get i don't think i'm sorry the reason you don't apply the unconscious reason you still apply the unconstitutional law to all those people who are in prison is because the berlin riots in the community on their staying in prison but i think that the reason you don't apply it is because the judgment final but i think it's a separate question from the underlying merits question the underlying constitutional question and incidentally i don't think this rule would be retroactive it's a procedural rule that doesn't go to substitute it's not a watershed rule so i don't think that's a concern here and then and there have been many decisions of this court that have imposed some limits on i have rejected some claims that have been a d under the fourth amendment under the fifth amendment right against self incrimination under the sixth amendment jury trial right in the right to ineffective assistance of counsel on to the eighth amendment right against cruel and unusual punishment and if any of those was challenged you would say there's no role there can never be a reliance and because there's a never can be reliance and because that involves an individual right and put starry decisis aside i'm so i'm not but there is more that goes into starry decisis than reliance that's one factor what i'm saying is the court has said that we will be we will not rely on reliance in the case of an on if you don't want force me practice thank you strategic you counsel the case is submitted