Suppose you are tried for a crime. If you are acquitted, by law you cannot be charged with that same crime again. The law that protects you from being hounded by the government with repeated trials for the same offense is the Fifth Amendment to the Constitution, which says, among other things:nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.To the Framers of the Constitution, the fairness of this law seemed obvious. Legal systems since the Code of Hammurabi had guaranteed people found innocent by a Court the right not to have their judgment of innocence changed to a judgment of guilty.
In 1959, however, the Supreme Court decided in Bartkus v. Illinois that a person could be tried for the identical offense both by his or her state or territory and by the federal government.
Enter the Democrat-heavy 111th Congress and President Barack Obama. From Hans Bader of the New York Examiner:
October 28, 12:27 PM
Today, President Obama signed into law a bill that will dramatically expand the federal hate crimes law, enabling prosecutors to bring federal charges against many more people who were previously found innocent of hate crimes in state court. The hate-crimes provisions were added to a defense appropriations bill, which the President signed in a White House signing ceremony this afternoon.[snip]
The hate-crimes bill was opposed by the U.S. Commission on Civil Rights for allowing the reprosecution in federal court of people found innocent in state court. The Commission called the new law a "menace to civil liberties" because it is an end-run around constitutional double-jeopardy protections.
As explained earlier, the bill’s sponsors seek to use it to reprosecute people in federal court who have already been found innocent of hate crimes in state court, taking advantage of the “dual sovereignty” loophole in constitutional protections against double jeopardy. Civil libertarians like Nat Hentoff and Wendy Kaminer thus object to the bill on double-jeopardy grounds. Backers of the bill, like the Leadership Conference on Civil Rights and Commissioner Michael Yaki, supported the bill partly as a way of prosecuting all over again people who were either found not guilty, or who were convicted only of ordinary crimes, while being acquitted of hate-crimes (like the teenagers acquitted of hate crimes in the Shenandoah incident, and the California case of Joseph Silva and George Silva).
Such re-prosecutions can be an enormous waste of money, and grossly unfair to the people who are reprosecuted, driving them into bankruptcy to pay lawyers to represent them all over again when they have already been found innocent in state court after an expensive trial. When the government re-prosecutes someone, it gains an enormous tactical advantage over the defendant from using the prior prosecution as a test-run, even if the defendant is innocent — making a guilty verdict possible even if the defendant is in fact innocent.
The bill also raises serious constitutional federalism issues under the Supreme Court’s Morrison decision.
[snip]
Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.
[snip]
Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.
As law professor Gail Heriot notes, “Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.” Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded (and DNA evidence showed), and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.
The new hate-crime legislation adds new identifying characteristics to the specially protected, more-equal-than-others list. A crime against someone having one or more of these characteristics is subject to prosecution by both state and federal governments. If a state doesn't do a good enough job of proving guilt, well, that's what Big Government is for.
Back in 1959, Justice Hugo L. Black dissented to the Supreme Court majority ruling in Bartkus v. Illinois, the decision that made possible yesterday's enactment of double jeopardy for hate crimes. Justice Black observed, "Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas in Western civilization."
Some 12 years earlier, in 1947, Black, a former Democrat senator, wrote what he considered to be his "most significant opinion," in Adamson v. California:
I cannot consider the Bill of Rights to be an outworn 18th century 'strait jacket.' ... Its provisions may be thought outdated abstractions by some. And it is true that they were designed to meet ancient evils. But they are the same kind of human evils that have emerged from century to century wherever excessive power is sought by the few at the expense of the many. In my judgment the people of no nation can lose their liberty so long as a Bill of Rights like ours survives and its basic purposes are conscientiously interpreted, enforced, and respected... I would follow what I believe was the original intention of the Fourteenth Amendment - to extend to all the people the complete protection of the Bill of Rights. To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution.
A Democrat strict constructionist. How times have changed.
Hat tip: Ann Coulter
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