Tag: double jeopardy

Let States Prosecute Assaults, Regardless of Their Motivations

In January 2015, Randy Metcalf was involved in a bar-fight in Dubuque, Iowa, where he seriously hurt a man. Was he prosecuted for assault under state law? No. Because Metcalf allegedly shouted racial slurs during the fight, federal prosecutors indicted him for one count of violating the Hate Crimes Prevention Act of 2009 (HCPA): causing bodily injury “because of the actual or perceived race, color, religion, or national origin of any person.”

The HCPA was enacted under Section 2 of the Thirteenth Amendment, which authorizes Congress to enforce the Constitution’s ban on slavery—an authority the Supreme Court has extended to eliminating the “badges and incidents” of slavery. Before his trial—and ultimate conviction—Metcalf challenged the constitutionality of the HCPA, arguing that racially motivated violence does not fall within congressional authority.

The district court upheld the HCPA, however, deferring to Congress’s power to “rationally determine” what the badges and incidents of slavery are. Metcalf appealed his case to the U.S. Court of Appeals for the Eighth Circuit, where Cato has now filed an amicus brief that mirrors two previous ones we filed on the same issue in unrelated cases. We argue that the use of hate-crime laws to sweep intra-state criminal activity—here an allegedly racially motivated bar fight—into federal court has nothing to do with stamping out slavery, and therefore does not fall within Congress’s enumerated powers. 

Not only are federal hate-crime laws constitutionally unsound, but, as George Zimmerman’s trial highlighted, they invite people dissatisfied with a state-court outcome to demand that the government retry unpopular defendants. That implicates one of our most fundamental liberties: protection from being prosecuted twice for the same act. Indeed, this protection from being placed in “double jeopardy” is explicitly enshrined in the text of the Fifth Amendment: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

In the 1920s, however, the Supreme Court recognized a “dual sovereignty” exception to the rule, permitting the federal government to prosecute defendants even after they had endured trial at the state level. This exception emanated from the Court’s narrow concern that weak state enforcement of prohibition laws would disrupt the federal government’s ability to bring bootleggers to justice. Once Prohibition ended, however, the dual-sovereignty exception did not. Not only did it survive, it has thrived in the face of the ever-expanding federalization of the criminal law—a body of law that has now grown so large the number of crimes it covers cannot be counted, exposing more and more people to federal criminal penalties for crimes traditionally reserved to the states to enforce through their police power.

The HCPA is a prominent example of the danger federal overcriminalization has wrought, and is indeed even more susceptible to abuse due to the highly emotional nature of the underlying offenses. Moreover, the HPCA’s coverage is so broad that almost any violent crime could be subject to double prosecution by the state and federal government—and indeed any rape could be seen as hating a particular sex.

In United States v. Metcalf, the Eighth Circuit should end this practice, find the HCPA unconstitutional, and let state authorities deal with the Randy Metcalfs of the world.

Try the 9/11 Conspirators in Both Federal Courts and Military Commissions?

That’s the proposal Benjamin Wittes makes in today’s Washington Post. Wittes says that by splitting the legal baby, by “charging the 9/11 case in both military commissions and federal court,” the Obama administration can satisfy political considerations on both sides of the aisle.

This is a path fraught with legal issues. The constitutional bar against double jeopardy would prevent a trial in one forum and re-trial in the other for the same actions. Wittes spells out his proposal in greater detail in this post at the Lawfare blog, and he acknowledges this risk. The same sovereign cannot try someone twice for the same crime and Wittes acknowledges that the “John Allen Muhammed Model,” named after one of the Beltway snipers, used the separate sovereigns doctrine in ways that do not apply to Guantanamo. The Beltway snipers were liable for separate crimes in Maryland and Virginia in a way that does not translate directly to the 9/11 conspirators.

Wittes recognizes these legal issues and proposes that federal prosecutors and military commissions prosecutors clearly separate the crimes they respectively charge.

I’d go further. The clearest way to make this work is not to “charg[e] the 9/11 case in both military commissions and federal court.” This proposal only works if you charge pre-9/11 conduct in an Article III court and the 9/11 attacks in a military commission.

The Double Jeopardy Clause of the Fifth Amendment would prevent “charging the 9/11 case in both military commissions and federal court.” Federal prosecutors charged Khalid Sheikh Mohammed well before 9/11 for his participation in the Bojinka Plot, a plan to blow up airliners over the Pacific Ocean. To the extent that he and other 9/11 co-conspirators can be charged with crimes related to Bojinka or other pre-9/11 attacks, this would pass constitutional muster. Otherwise, this is a not an advisable course of action.

Where Double Jeopardy is a concern, the broad sweep of Material Support of Terrorism (MST) charges works against the government, not for it. If an MST charge is used in federal court in anything 9/11-related, the defendants have an excellent case that it bars any charges related to that attack in a military commission and vice versa. MST charges don’t even belong in a military commission, as Assistant Attorney General David Kris warned Congress before it revised the commissions with the Military Commissions Act of 2009. So if you’ve got MST on your mind, best to keep it in a civilian court. The Court of Military Commissions Review is getting ready to weigh the validity of MST in the commissions in the case of Ali al Bahlul, so stay tuned.

The Double Jeopardy bar in prosecuting before a military commission and then in a civilian court is also grounded in first principles. When Benedict Arnold betrayed General Washington and the fortifications at West Point, he escaped. His co-conspirators did not. British Major John André was tried and hanged by a military commission. Joshua Hett Smith, a citizen of New York and citizen of what would become the United States, was likewise tried by a panel of military officers. The panel found insufficient evidence to convict him. The prosecution failed to establish that he knew the true object of André’s meeting with Arnold, and might have reasonably believed that he was ferrying a British officer to negotiations with an American officer without knowledge of Arnold’s betrayal. When Smith transferred to a local jail, the civilian grand jury found that he could not be tried for treason for the actions that previously subjected him to a military trial; his protection from Double Jeopardy stood firm.

Keep in mind, I’m not endorsing Wittes’ plan. Wittes has a lot of “creative” ideas that I think are destructive of the liberty we’re trying to protect. He says in his book, Law and the Long War, that the “psychological Rubicon” of preventive detention is something “we simply need to cross.” Count me opposed, as I said in this post. But it’s worth noting that, before anyone gets too excited about a bipartisan compromise, there are serious issues with two sets of trials for KSM and the rest of the 9/11 co-conspirators.

One Nation Under Double Jeopardy

The Senate is about to vote on Defense Department funding with an expanded federal “hate crimes” bill. This well-intentioned piece of legislation threatens to make violations of the fundamental right against Double Jeopardy a routine practice, as federal courts will now have the power to re-prosecute defendants for what are traditionally state crimes.

The House removed language that the Senate put in place to ensure that the “hate crimes” provisions did not stretch to encompass free speech, threatening to attach criminal liability to core rights of free expression.

This expansion of federal jurisdiction guarantees that high profile cases will be retried until a guilty verdict is obtained to satisfy political factions. This politicization of justice will only harm our courts and our freedoms. The Senate should vote down this threat to the fundamental rights of all Americans.

Now for some quick background reading: