Thursday, June 20, 2019

The Creeps On the Supreme Court

Earlier this week, the Supreme Court ruled that a person could be prosecuted for the same crime twice, once by the feds and once by the state; and it can also trigger two punishments.

Terance Gamble pleaded guilty in Alabama state court to being a felon in possession of a handgun and began to serve his jail term. Then federal prosecutors sought and obtained an indictment for Gamble’s violation of the federal statute prohibiting felons from possessing firearms. Gamble then pleaded guilty in federal court, reserving his right to challenge his federal conviction on the theory that it constituted double jeopardy. He took the case to the Supreme Court and lost. It is a ruling by the Supreme Court that is tyrannical at its very core.

Judge Napolitano explains:
The Fifth Amendment to the U.S. Constitution provides that no person shall “for the same offense to be twice put in jeopardy of life or limb.” This is commonly referred to as the double jeopardy clause. Like the other initial eight amendments in the Bill of Rights, the Fifth Amendment was written largely in response to government excesses and abuses during the colonial period. In the case of this clause, it was expressly written to prevent repeated attempts to convict.

Notwithstanding the plain language in the Amendment, the trial court dismissed Gamble’s challenge and a federal appellate court upheld that dismissal. Earlier this week, the Supreme Court agreed with the lower courts and permitted the second guilty plea to stand, and the second incarceration to be served.

Isn’t double punishment profoundly un-American and clearly unconstitutional? In a word: Yes...

No crime merits double punishment. We know that because it was a policy judgment made by James Madison & Co. when Congress passed and the states ratified the Bill of Rights. The framers were personally familiar with the British officials’ practice of repeatedly trying defendants — usually folks colonial officials hated or feared — for the same crime, until they got the verdict and the punishment that they wanted.

We fought a revolution over abuses like this, and we wrote a Constitution to prevent those abuses from happening here.

And here we are in 2019 and those abuses are still with us. If the feds fail to convict you, the state has a shot. If the state fails to convict you, the feds have a shot. If both governments want to charge you and try you and punish you for the same offense — the same criminal event and the same crime — they can constitutionally do so.

Why should you care about this? You should care because repeated attempts to convict are hallmarks of tyrants. Yet the Supreme Court, in an obeisance to textualism — the literal adherence to the words of a document no matter the outcome of that adherence — ruled that the Fifth Amendment only prohibits the re-prosecution for the same offense, not for the same crime; and Gamble’s behavior was actually two crimes, one state and one federal, not two offenses.

Come again? Isn’t it obvious from history that all repeated attempts to convict for offenses or crimes are barred by the values that underlie the words the Court has just abused?

This business of double prosecutions for the same event or offense or crime and double punishments is bad law. As Justice Neil Gorsuch wrote in dissent, “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result.”

Compare that clear liberty-loving language with the Court’s tortured idea of the textual differences between offenses and crimes, and one can see that judicial intellectual chicanery can always find a means to an end. The Supreme Court should be in the business of protecting our rights, not upending them.

The benefit of any historical doubt or textual ambiguity should always favor liberty over power, because liberty is inalienable and integral to our humanity and essential for our happiness. Power is whatever the government wants it to be.


  1. It's a good thing the free market would never violate an individual's rights, like freedom of speech or such...

    1. You realize freedom of speech is freedom from government interference with speech, yes? Private individuals and businesses (should) have all the right in the world to tell someone what they can or cannot say on that individual's or business's property

    2. I didn't realize Facebook, Twitter, er al paid for all the initail infrastructure they use to run their private companies. I could have sworn tax dollars were used for that...

    3. Well said. It seems obvious but apparently it can never be stated often enough. The individual right to private property tends to keep free speech alive and civil.

    4. I'm fine with these 'private' companies kicking people off their programs, so long as they stop receiving government libel protections as platforms instead of publishers.

  2. How utterly frightening! The same logic could easily be extended to say that the same act with multiple victims could be tried as separate crimes - one crime for each victim since the same act "offended" - was an "offense" against - multiple persons! The often-used "Shouting 'Fire' in a crowded theater" hypothetical could end up with separate convictions for each person in the theater!

  3. Welcome to the new gestapo same as the old gestapo

  4. Funny how the massive universe of people's and States' rights and privileges left untouched by Federal power in the original Constitution, has been whittled down to the tiny subset contained within the Bill of Rights. The Constitution as written ceded a narrow list of specifically enumerated powers to the States's agent---the Feds---with all else to be left alone and unwieldable by the Feds...and with a Bill of Rights as admonishment or guarantee of what must never, in any case, be interfered with (i.e., Fed power = "Just this, and nothing else---and especially not this!"). Yet here we are 230 years later, with the Bill of Rights being fly-specked by the Feds searching for those few and defined powers that they may NOT wield ("Not this, but all else").

  5. Jefferson warned about the judiciary. Most of the things we see now we were warned about 250 years ago.
    Land of the free, yeah right.

    “Our Constitution . . . intending to establish three departments, co-ordinate and independent that they might check and balance one another, it has given—according to this opinion to one of them alone the right to prescribe rules for the government of others; and to that one, too, which is unelected by and independent of the nation. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” (Letter to Judge Spencer Roane, Sept. 6, 1819)