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SCOTUS Again Upholds Double Prosecution and Punishment for the Same Crime (6-3 Gorsuch teams with Kagan and Sotomayor)
Townhall ^ | 6/22/22 | Jacob Sullum

Posted on 06/22/2022 12:43:06 PM PDT by Michael.SF.

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To: GreenLanternCorps

I understand the issue related to crossing a state line, but a “federal interest” shouldn’t necessarily mean “federal jurisdiction.” The only role of the federal government in a case like that should be to ensure that a fugitive who flees from a state where he is being charged with a crime is returned to face a trial. That’s it.


81 posted on 06/22/2022 3:49:24 PM PDT by Alberta's Child ("It's midnight in Manhattan. This is no time to get cute; it's a mad dog's promenade.")
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To: Michael.SF.
If the Founders had set up the Nation as a Constitutional Republic, this type of tyrannical judgement (cojoining the powers of the States and the Federal governments in order to violate the former 5th Amendment) would not have been possible...

Oh wait...

82 posted on 06/22/2022 3:51:53 PM PDT by SuperLuminal
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To: Skywise
Keep in mind that the U.S. Department of Justice didn't even exist until 1870. This country got along fine without it for about 80 years.

Before 1870, the U.S. Attorney General and the District Attorneys assigned to each Federal district were organized under the U.S. Treasury Department. They had the authority to prosecute crimes, but there weren't many Federal crimes on the books at the time (mainly treason and tax evasion). They worked mostly in civil law, representing the U.S. government in real estate dealings with the states involving Federal lands.

83 posted on 06/22/2022 3:52:26 PM PDT by Alberta's Child ("It's midnight in Manhattan. This is no time to get cute; it's a mad dog's promenade.")
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To: Alberta's Child

Hallelujah, brother... or sister...


84 posted on 06/22/2022 3:57:42 PM PDT by Blurp2
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To: Flash Bazbeaux

We could write a treatise on this; bet there are a bunch of law reviews that are already half-written.

On the criminal side of this, the “dual sovereignty” makes a lot of sense going back to the time the Constitution was ratified. Strong lines between states and the federal. BUT, the federal (without constitutional amendment) became a feral givernment leaving behind constitutional limitations that it is a givernment of enumerated powers - specific, limited. Had the feral givernment stayed inside that enumerated powers box, this would be really a non-issue. But because the ferals have basically expanded its power into everything, including criminal laws, and with judicial blessing for past 80 years, my instincts tell me that dual sovereignty justification is much weaker doctrine and the double jeopardy position is stronger. I need to read the court opinions nonetheless to see where I come down on this and how expansive the ruling is. Many times the court likes to limit itself to the facts and law at hand ... except when they do things like advance leftists causes, homo marriage, etc.


85 posted on 06/22/2022 4:05:21 PM PDT by Susquehanna Patriot
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To: Michael.SF.

This was a very bad decision.

It could wreak havoc with first and second amendment rights.

Bad decision.


86 posted on 06/22/2022 4:05:29 PM PDT by P-Marlowe (I got the <ΙΧΘΥΣ>< variant. Catch it. John 3:16)
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To: Lazamataz

Well hell. We might as well go WHOLE EFFIN’ HOG.

- World Court prosecution.
- Federal US Court prosecution.
- State Court prosecution.
- County Court prosecution.
- City Court prosecution.
- Precinct Court prosecution.

I mean hell, we GOTTA be able to nail someone with six separate prosecutions!!!!


You would think it should be obvious, right? A straightforward reading of the Bill of Rights clearly indicates that it applies to all levels of government unless it states otherwise.

For example, when the 2nd Amendment says that the right to bear arms “shall not be infringed” it means that it cannot be infringed by any level of government: the state, county, city, nor federal. A clear reading of the 5th Amendment should work the same way: no person “shall be subject for the same offense to be twice put in jeopardy of life or limb”. The level of jurisdiction should not be relevant. It takes a really twisted and tortured interpretation of the constitutional text to think otherwise.


87 posted on 06/22/2022 4:08:26 PM PDT by Gideon7
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To: Lazamataz
I mean hell, we GOTTA be able to nail someone with six seperate prosecutions!!!!

Gotta have a backup plan in case of a “not guilty” that you REALLY don’t like. Gives you the opportunity to at least pressure a man into a plea deal.
88 posted on 06/22/2022 4:11:08 PM PDT by mmichaels1970
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To: Flash Bazbeaux
The difference is State vs. Federal. The State can try you for violating state criminal law. The Feds can try to a second time for violation of Federal criminal statutes, if the act you did was a federal crime as well as a state crime.

But the amendment does not refer to statutes, it simply says no person shall be subject for the same offence to be twice put in jeopardy. The "offence" is the action, not the "violation of a statute." Else one can be tried any number of times for a crime, in any number of courts. If they'd meant violation of a statute they'd have said that, wouldn't they?

89 posted on 06/22/2022 4:16:20 PM PDT by Buttons12 ( )
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To: Buttons12

Well done.


90 posted on 06/22/2022 4:31:44 PM PDT by mmichaels1970
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To: Alberta's Child

Spot on. If i were president i would put you on the supreme court, you don’t have to be a lawyer.


91 posted on 06/22/2022 5:01:17 PM PDT by SandwicheGuy ("Man is the only pack animal that will follow an unstable leader." Cesar Chavez)
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To: Alberta's Child
> Federal tax evasion, espionage, and treason are pretty much the only "stand-alone" Federal crimes that are worthy of prosecution. Beyond that, the Federal government should only be involved in the pursuit and apprehension of people charged with state crimes who flee to other jurisdictions.

You are confusing the Constitutional Government that D.C. pretends to be with the Administrative Law based one it has become.

This usurpation of the Founding cannot be fixed at the ballot box, nor with a soap box, thus last night's betrayal by McConnell & The Former Texan known as Cornyn™

92 posted on 06/22/2022 6:20:12 PM PDT by SecondAmendment (This just proves my latest theory ... LEFTISTS RUIN EVERYTHING !!!)
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To: SandwicheGuy

My goodness … that might be the greatest compliment I’ve ever received here! Thank you! :-)


93 posted on 06/22/2022 7:04:01 PM PDT by Alberta's Child ("It's midnight in Manhattan. This is no time to get cute; it's a mad dog's promenade.")
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To: Blurp2

Thank you!! (It’s brother) :-)


94 posted on 06/22/2022 7:23:36 PM PDT by Alberta's Child ("It's midnight in Manhattan. This is no time to get cute; it's a mad dog's promenade.")
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To: Lockbox

Although I usually agree with Justices Thomas and Alito, I think Gorsuch’s dissenting opinion is spot on. He comes from CO, and in the SW part of the state, Indian law is the law. He has more experience with Indian law than the other justices.


95 posted on 06/22/2022 7:41:35 PM PDT by Labyrinthos
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To: Michael.SF.

Sadly, you can always depend upon the ‘conservative’ members to side with the State in instances like this.


96 posted on 06/22/2022 9:01:07 PM PDT by zeugma (Stop deluding yourself that America is still a free country.)
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To: DiogenesLamp; Michael.SF.
Ping.

The author is a serial purveyor of legal bullshit.

Denezpi is distinguished for holding there is no double jeopardy bar to successive prosecutions by the same sovereign, provided there are different offenses being prosecuted. Federal, State and Tribal offenses are separate offenses. Their power to punish derives from wholly independent sources. "An offense defined by one sovereign are necessarily different from an offense defined by another, even when the offenses have identical elements."

https://www.supremecourt.gov/opinions/21pdf/20-7622_ljgm.pdf

Denezpi v. United States, S. Ct. 20-7622 (June 13, 2022)

Slip Op. at 1:

JUSTICE BARRETT delivered the opinion of the Court.

The Double Jeopardy Clause protects a person from being prosecuted twice “for the same offence.” An offense defined by one sovereign is necessarily different from an offense de­fined by another, even when the offenses have identical el­ements. Thus, a person can be successively prosecuted for the two offenses without offending the Clause. We have dubbed this the “dual-sovereignty” doctrine.

This case presents a twist on the usual dual-sovereignty scenario. The mine run of these cases involves two sover­eigns, each enforcing its own law. This case, by contrast, arguably involves a single sovereign (the United States) that enforced its own law (the Major Crimes Act) after hav­ing separately enforced the law of another sovereign (the Code of the Ute Mountain Ute Tribe). Petitioner contends that the second prosecution violated the Double Jeopardy Clause because the dual-sovereignty doctrine requires that the offenses be both enacted and enforced by separate sov­ereigns.

We disagree. By its terms, the Clause prohibits separate prosecutions for the same offense; it does not bar successive prosecutions by the same sovereign. So even assuming that petitioner's first prosecutor exercised federal rather than tribal power, the second prosecution did not violate the Con­stitution's guarantee against double jeopardy.

Slip Op. at 4:

The Double Jeopardy Clause of the Fifth Amendment provides: “No person shall . . . be subject for the same of­fence to be twice put in jeopardy of life or limb.” The Clause by its terms does not prohibit twice placing a person in jeop­ardy “‘for the same conduct or actions.’” Gamble v. United States, 587 U. S. ___, ___ (2019) (slip op., at 3). Instead, it focuses on whether successive prosecutions are for the same “offence.”

That term, we have explained, “‘was commonly under­stood in 1791 to mean “transgression,” that is, “the Viola­tion or Breaking of a Law.” Ibid.; see, e.g., 2 R. Burn & J. Burn, A New Law Dictionary 167 (1792) (“OFFENCE, is an act committed against law, or omitted where the law re­quires it”). An offense, then, is “defined by a law.” Gamble, 587 U. S., at ___ (slip op., at 4); see Moore v. Illinois, 14 How. 13, 19-20 (1852). And a law is defined by the sover­eign that makes it, expressing the interests that the sover­eign wishes to vindicate. Gamble, 587 U. S., at ___ (slip op., at 4); see United States v. Lanza, 260 U. S. 377, 382 (1922) (“Each government in determining what shall be an offense against its peace and dignity is exercising its own sover­eignty, not that of the other”). Because the sovereign source of a law is an inherent and distinctive feature of the law itself, an offense defined by one sovereign is necessarily a different offense from that of another sovereign. See Gam­ble, 587 U. S., at ___ (slip op., at 4); Moore, 14 How., at 20. That means that the two offenses can be separately prose­cuted without offending the Double Jeopardy Clause—even if they have identical elements and could not be separately prosecuted if enacted by a single sovereign. See Gamble, 587 U. S., at ___, n. 1, ___ (slip op., at 3, n. 1, 4); cf. Block­burger v. United States, 284 U. S. 299, 304 (1932) (offenses defined by a single sovereign are distinct offenses only if each “requires proof of a different element”).

This dual-sovereignty principle applies where “two enti­ties derive their power to punish from wholly independent sources.” Puerto Rico v. Sanchez Valle, 579 U. S. 59, 68 (2016). The doctrine has come up most frequently in the context of the States. See, e.g., Heath v. Alabama, 474 U. S. 82, 88-90 (1985) (States are separate sovereigns from one another); Lanza, 260 U. S., at 382 (States are separate sov­ereigns from the United States). It applies, however, to Indian tribes too.

Slip Op. at 9:

We need not sort out whether prosecutors in CFR courts exercise tribal or federal authority because we disagree with Denezpi's premise. The Double Jeopardy Clause does not prohibit successive prosecutions by the same sovereign. It prohibits successive prosecutions “for the same offence.” And as we have already explained, an offense defined by one sovereign is different from an offense defined by an­other. Thus, even if Denezpi is right that the Federal Gov­ernment prosecuted his tribal offense, the Clause did not bar the Federal Government from prosecuting him under the Major Crimes Act too.

[...]

Denezpi does not even try to reconcile his position with the text of the Clause. Instead, he presents the dual­ sovereignty doctrine as “a carveout to the rule against dou­ble jeopardy” and argues that the carveout does not extend to successive prosecutions by a single sovereign. Brief for Petitioner 15-17. But Denezpi is wrong to treat the dual ­sovereignty doctrine as an exception to the Clause. Gamble was very clear on this point: “Although the dual-sovereignty rule is often dubbed an ‘exception' to the double jeopardy right, it is not an exception at all. On the contrary, it fol­lows from the text that defines that right in the first place.” 587 U. S., at ___ (slip op., at 3). The Clause does not ask who puts a person in jeopardy. It zeroes in on what the person is put in jeopardy for: the “offence.” And again, in 1791, “offence” meant the violation of a law. Supra, at 4-5. We have seen no evidence that “offence” was originally un­derstood to encompass both the violation of the law and the identity of the prosecutor.

Treating the identity of the prosecutor as part of the def­inition of “offence” is as odd as it sounds.

Slip Op. at 13:

Denezpi's single act led to separate prosecutions for vio­lations of a tribal ordinance and a federal statute. Because the Tribe and the Federal Government are distinct sover­eigns, those “offence[s]” are not “the same.” Denezpi's sec­ond prosecution therefore did not offend the Double Jeop­ardy Clause. We affirm the judgment of the Court of Appeals.

It is so ordered.


97 posted on 06/22/2022 11:16:59 PM PDT by woodpusher
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To: Michael.SF.

What does this do to “immunity”? If offered immunity from prosecution for what you admit at a state level when you could still be prosecuted in another jurisdiction, why accept the offer of immunity?

As I recall, Linda Tripp was prosecuted in Maryland for something she testified to and was given immunity for in Virginia.


98 posted on 06/23/2022 6:35:15 AM PDT by KrisKrinkle (Blessed be those who know the depth and breadth of ignorance. Cursed be those who don't.)
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To: Michael.SF.

First in state court, then in federal court.

Akin to more then one person can sue somebody like war crimes?


99 posted on 06/23/2022 8:20:38 AM PDT by Vaduz ( )
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To: BillyBoy; AuH2ORepublican; campaignPete R-CT; fieldmarshaldj

Not sure the (2 of 3) libs (and Gorsuch) were wrong on this one.

“That doctrine allows serial state and federal prosecutions for the same crime, opening the door to double punishment or a second trial after an acquittal. Although neither seems just, the Court says both are perfectly constitutional”

I mean....maybe the majority is correct on the law but it sure sounds lame.


100 posted on 06/29/2022 4:31:20 PM PDT by Impy ("We didn't steal the election, we swear!!!" - Sincerely, The Election Thieves )
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