SCOTUS will make big ruling on double jeopordy - Thomas & Ginsburg may agree!

[KLB]

I have always agreed with that.

To be more specific, assuming the federal government has the power to make a certain activity a crime, if it is also a state crime. I do not believe prosecuting both the federl and state crime separately violates the double jeopardy clause.

How do you come to that conclusion? It doesn't say anything about Federal and State being different.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 

[HoughMade]

Because it's the federal Constitution....and nearly 200 years of precedent.

Beyond that, I believe it is, generally, a bad idea for either the states or the feds to have their criminal justice system held hostage to the whims of the other.

 

[KLB]

Because it's the federal Constitution....and nearly 200 years of precedent.

Beyond that, I believe it is, generally, a bad idea for either the states or the feds to have their criminal justice system held hostage to the whims of the other.

The Bill of Rights doesn't apply to the States then? I thought that ship had sailed.

Being tried for the same offense in two different courts is still being tried twice for the same offence.

 

[HoughMade]

The Bill of Rights doesn't apply to the States then? I thought that ship had sailed.

Being tried for the same offense in two different courts is still being tried twice for the same offence.

Not always. However the double jeopardy clause does...to the states prosecuting twice or the feds prosecuting twice.

The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the “peace and dignity” of two sovereigns by breaking the laws of each, he has committed two distinct “offences.” United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922). As the Court explained in Moore v. Illinois, 14 How. 13, 19, 14 L.Ed. 306 (1852), “[a]n offence, in its legal signification, means the transgression of a law.” Consequently, when the same act transgresses the laws of two sovereigns, “it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.” Id., at 20.

Heath v. Alabama, 474 U.S. 82, 88 (1985)

 

[Alamo]

...

To be more specific, assuming the federal government has the power to make a certain activity a crime, if it is also a state crime. I do not believe prosecuting both the federl and state crime separately violates the double jeopardy clause.

Just to stir the pot some more, isn't the Uniform Code of Military Justice yet a third justice system that could prosecute for a crime (assuming the offender is a military member and commits a crime within the jurisdiction of a state, the non-military feds, and the military? Say an active-duty member killing a federal law enforcement officer at a National Guard installation?

Or is there a either/or for acts that are crimes under both the federal law and UCMJ?

 

[KLB]

Not always. However the double jeopardy clause does...to the states prosecuting twice or the feds prosecuting twice.


Heath v. Alabama, 474 U.S. 82, 88 (1985)

Aren't they arguing against just that precedent in this case?

 

[HoughMade]

Aren't they arguing against just that precedent in this case?

Yes. I don't think it should be overturned.

 

[Libertarian01]

This caused me to do some readin'. Perhaps(?) the way we have interpreted the Constitution has been in error. The exact wording, cut out, says, "...nor shall any person be subject for the same offense to be twice put in jeopardy for life or limb..."

In a somewhat strict reading it doesn't say who shall be placing the accused in jeopardy, but only that it shall be done once. As we well know when a person commits a crime there are often many different crimes tied into a single event. However, the criminal event itself is a single action. Say I rob a bank. I will probably break at least 20 different laws doing it, down to driving without a seat belt during my getaway. However, I really only performed the action once. I will have committed many concomitant crimes to the primary.

We already have a practice of serving sentences concurrently (at the same time). This puts the leash on the state of possibly turning every crime into a life sentence, which it could do if it made all sentences run consecutively.

I don't know. I think it would have both positive and negative consequences, with the overall being positive.

It might well push the feds out of drug crimes. If you think about most drug crime that is prosecuted in the US is low level garbage, street dealers and such. Could you imagine the feds wanting to go after thousands of street dealers? I don't think so. The states would scream to high heaven if they weren't allowed to clean up their own streets, so the pressure would be placed on the feds to get out of it and let the states deal with it. Of course, the states could always go after the street dealer for operating a business without a license, but that wouldn't sit well with many.

Regards,

Doug

 

[Denny347]

Yes. I don't think it should be overturned.

My money is that it won't be...we shall see.

 

[Libertarian01]

Yes. I don't think it should be overturned.

My money is that it won't be...we shall see.

So, presuming you are correct and the status quo remains, what will the split be? 9 - 0? 5 -4? Close or far apart?

Doug

 

[KellyinAvon]

Just to stir the pot some more, isn't the Uniform Code of Military Justice yet a third justice system that could prosecute for a crime (assuming the offender is a military member and commits a crime within the jurisdiction of a state, the non-military feds, and the military? Say an active-duty member killing a federal law enforcement officer at a National Guard installation?

Or is there a either/or for acts that are crimes under both the federal law and UCMJ?

I see my fellow Blue-ID Mafia Consigliere has brought up an interesting point. The same crime couldn't be prosecuted in a civilian federal court, the in a court-martial since both are federal. However, could the military go after crimes such as AWOL, desertion or "conduct prejudicial to good order and discipline and of a nature to bring discredit to the service" (see Trial of Billy Mitchell) after the state and .gov civilian types get done? I think that's a yes.

 

[Herr Vogel]

[/snip] and instead rely on the civil court system to increase the likelihood that at least some justice would be served. And that's a very bad outcome.

Isn't that kind of what happens anyway?
Hypothetical scenario: Bob tries to forcibly separate Chuck from the contents of his wallet. Chuck is carrying a firearm and shoots Bob dead. Chuck is charged with murder, brought before a court of law, and found not guilty because self defense. Bob's family isn't satisfied with this, so they file a civil suit. Even if they don't have a case, they can still run Chuck through the wringer by dragging it out as long as possible or else hope for a sympathetic jury. How many times have we heard this story before?

 

[Libertarian01]

Isn't that kind of what happens anyway?
Hypothetical scenario: Bob tries to forcibly separate Chuck from the contents of his wallet. Chuck is carrying a firearm and shoots Bob dead. Chuck is charged with murder, brought before a court of law, and found not guilty because self defense. Bob's family isn't satisfied with this, so they file a civil suit. Even if they don't have a case, they can still run Chuck through the wringer by dragging it out as long as possible or else hope for a sympathetic jury. How many times have we heard this story before?

OJ.

 

[CampingJosh]

Isn't that kind of what happens anyway?
Hypothetical scenario: Bob tries to forcibly separate Chuck from the contents of his wallet. Chuck is carrying a firearm and shoots Bob dead. Chuck is charged with murder, brought before a court of law, and found not guilty because self defense. Bob's family isn't satisfied with this, so they file a civil suit. Even if they don't have a case, they can still run Chuck through the wringer by dragging it out as long as possible or else hope for a sympathetic jury. How many times have we heard this story before?

Sometimes. Not usually.

 

[Fargo]

So, presuming you are correct and the status quo remains, what will the split be? 9 - 0? 5 -4? Close or far apart?

Doug

If the ruling is for the status quo, I would say six-three. If it is a reversal, five-four.

 

[T.Lex]

My crystal ball (which has been doing a terrible job lately) tells me unanimous for status quo.

 

[Libertarian01]

My crystal ball (which has been doing a terrible job lately) tells me unanimous for status quo.

Well, your crystal ball problem is due to... umm....




Umm....





Ok...? Are we still blaming Bush for our problems or is it all Obamas fault?

Or is Trump just so... Trump... that we blame him for everything?

Whatever the problem I'm sure you're not the cause of it. It must be one of these guys but I don't know how to figure out which...

Regards,

Doug

 

[T.Lex]

Well, your crystal ball problem is due to... umm....




Umm....





Ok...? Are we still blaming Bush for our problems or is it all Obamas fault?

Or is Trump just so... Trump... that we blame him for everything?

Whatever the problem I'm sure you're not the cause of it. It must be one of these guys but I don't know how to figure out which...

Regards,

Doug

You kinda lost me.

But, suffice to say that I don't blame Trump, Obama, or Bush for my inability to see the future.

 

[SheepDog4Life]

I have always agreed with that.

To be more specific, assuming the federal government has the power to make a certain activity a crime, if it is also a state crime. I do not believe prosecuting both the federl and state crime separately violates the double jeopardy clause.

IANAL, but I'd disagree... just based upon the plain text:

"[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."

When the offense can be prosecuted at both the state and federal levels, if the feds want a bite at the apple, they get the first, and only, bite due to federal supremacy. If they pass, then they pass... no second bite because the state verdict was favorable to the defendant, which is when this most often arises... and the defendant is put into legal jeopardy a second time.

And, on the bigger picture, I agree... exerting un-enumerated powers led to this mess.

 

[T.Lex]

IANAL, but I'd disagree... just based upon the plain text:

"[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."

When the offense can be prosecuted at both the state and federal levels, if the feds want a bite at the apple, they get the first, and only, bite due to federal supremacy. If they pass, then they pass... no second bite because the state verdict was favorable to the defendant, which is when this most often arises... and the defendant is put into legal jeopardy a second time.

And, on the bigger picture, I agree... exerting un-enumerated powers led to this mess.

Interesting.

It is actually the enumerated powers that created the status quo.

As Hough pointed out, the constitution applied to the federal government. States, under the 10th amendment, had/have the power to criminalize whatever they want.

And, at a VERY basic level, it can't be the "same" offense if there are different parties - different sovereigns - prosecuting. They have different definitions of the crime (or at least the statutes are in different books), and different regulations for enforcing them.