Posts Tagged ‘states’ rights’

dual sovereigntyWhen I was growing up, I was fascinated by the fact that the United States government could, in certain narrow circumstances, prosecute people who had been acquitted in state courts.

These cases often involved white people in the southern United States who had been accused of grave assault or even murder of black people. The local, often all-white jury may have let the alleged perpetrators go. But the feds would charge the same people with some crime such as “violating” the victims’ “civil rights.”

I’ll admit that I appreciated the outcome, with those victims finally receiving a modicum of justice. At the same time, my political science major part of me was asking, “Isn’t that double jeopardy?”

Double jeopardy is a procedural defense “that prevents an accused person from being tried again on the same (or similar) charges and on the same facts, following a valid acquittal or conviction.” It is a feature in many countries’ jurisprudence. In the United States, “The Fifth Amendment to the Constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”

Here’s the odd American twist: “Under the dual sovereignty doctrine, multiple sovereigns can indict a defendant for the same crime. The federal and state governments can have overlapping criminal laws, so a criminal offender may be convicted in individual states and federal courts for exactly the same crime or for different crimes arising out of the same facts.”

Suddenly, Republicans are very, very interested in double jeopardy law. “At this moment, a case making its way through the court system is garnering an unusual amount of attention. It’s a case about a convicted robber in Alabama who was found in possession of a gun and charged by both state and federal authorities.

“For 150 years, the Supreme Court has held that these kinds of cases… don’t violate the Constitution’s prohibition against double jeopardy… But The Atlantic reports: “Utah lawmaker Orrin Hatch, who sits on the Senate Judiciary Committee, filed a 44-page amicus brief [in September] in Gamble v. United States, a case that will consider whether the dual-sovereignty doctrine should be put to rest.

“Republicans, always talk a good game about promoting the sovereign right of states … so long as what the states are doing agrees with them. But here Hatch is willing to take a power away from every state. And why would that be? Two words: Mueller investigation.”

Go see what Arthur has to say about this angle because there’s another example I want to show.

Per the Los Angeles Times, California lawmakers passed a net neutrality proposal at the end of August, responding to the repeal at the federal level. The bill “would prevent broadband providers from hindering or manipulating access to the internet, bringing the state closer to enacting the strongest net neutrality protections in the country.” It was signed by Gov. Jerry Brown.

“Justice Department officials… announced soon afterward that they were suing California to block the regulations. The state law prohibits broadband and wireless companies from blocking, throttling or otherwise hindering access to internet content, and from favoring some websites over others by charging for faster speeds.”

The federal government has also pushed back against California’s more stringent car pollution standards.

However you feel about dual sovereignty, there’s little doubt that it’s under attack.

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