Hate Crimes Bill Double Jeopardy: Hate Crimes Bill Dual Sovereignty

The Hate Crimes Bill was stuffed inside the military appropriations bill, in honor of deceased Senator Ted Kennedy, and passed into Law today. Now our government has the legal authority to retry cases that resolved without a guilty verdict. I had to read it twice. Actually I read that several more times. This law actually will allow the DOJ to retry cases that were adjudged “innocent” or “not guilty.” It’s not about double jeopardy. It is all about dual sovereignty. See update 10-27-09 below.

Lady Justice – Dual Sovereignty

Hans Bader writing for Stop the ACLU explains how this happens:

…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.

The double jeopardy clause lives within the The 5th Amendment. Dual Sovereignty is a legal doctrine. As I’ve read some examples of how dual sovereignty can inject itself and remain constitutional, the example of Timothy McVeigh, the Oklahoma City Murrah Building bomber, is often mentioned. McVeigh could be tried both in Oklahoma and in Federal Court, but he was tried in federal court for the murder of 8 federal employees, rather than the 168 people he murdered in Oklahoma.

This article gives some good examples of how dual sovereignty is used, but says this:

The dual sovereignty doctrine is controversial, but there are not very
many instances of successive state and federal prosecutions. Both the
federal and state governments have imposed limits on their ability to
re-prosecute the same conduct. The federal limit is found in a
Department of Justice policy that generally forbids prosecuting conduct
that has already been prosecuted.

There are exceptions for cases in which justice
was not done in the prior prosecution—for example, the judge or
prosecutor was corrupt or the jury entered an acquittal that was
clearly against the evidence.

So apparently this DOJ and Barack Obama believe that justice is not done often enough, and that courts often do not punish those who commit hate crimes?

No discussion is necessary of the fact that any violent act against anyone is hateful. No matter your color, your gender, your sexual persuasion, your ethnicity – a violent act is criminal and should be punished, but here is a closing question: is it possible for a straight white person to have a crime of “hate” perpetrated against him/her?

Update 10-27-09:
A commenter mentioned that he read the Bill and saw nothing to indicate “double jeopardy.” I think the real issue is “dual sovereignty” which negates the double jeopardy. The text of the Bill is here.

Here is a portion that I believe gives the DOJ the opportunity to retry a hate crime:
(b) (1) IN GENERAL – No prosecution of any offense described in the subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or his designee, that- (C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or (D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

(b) (2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to limit the authority of Federal officers, or a Federal grand jury, to investigate possible violations of this section.

In addition, NationalReviewOnline has published a letter from the U.S. Commission on Civil Rights to Senate leaders including Senator’s Byrd, Reid, McConnell, Kyl, Sessions and Coburn. A snippet of the letter follows, or read the entire letter here.

We believe that MSHCPA [Matthew Shepard hate Crimes Prevention Act] will do little good and a great deal of harm.  Its
most important effect will be to allow federal authorities to
re-prosecute a broad category of defendants who have already been
acquitted by state juries—as in the Rodney King and Crown Heights cases
more than a decade ago

Due to the exception for prosecutions by “dual sovereigns,” such double
prosecutions are technically not violations of the Double Jeopardy
Clause of the U.S. Constitution 
But they are very much a violation of the spirit that drove the framers
of the Bill of Rights, who never dreamed that federal criminal
jurisdiction would be expanded to the point where an astonishing
proportion of crimes are now both state and federal offenses.  We
regard the broad federalization of crime as a menace to civil
liberties.  There is no better place to draw the line on that process
than with a bill that purports to protect civil rights.

The text of the Bill states that its purpose is to eliminate “the badges…and relics of slavery and involuntary servitude.” (7)

Another mission of the Bill is give the States a total of $5 million dollars in 2010 and again in 2011 to aid in their investigations and prosecutions. This, in my opinion, violates the “sham and cover” limit on dual sovereignty – meaning that the Feds cannot encourage a state, or aid a state with assistance or funds to bring about a guilty verdict. I’m not an attorney, but the information from TheFreeLibrary cited below addresses this.

The text of the Bill in (6)(E) says the Feds have a right to become involved in many cases because “Such violence is committed using articles that have traveled in interstate commerce.” In otherwords, the killer brought a knife from his homestead state, or a state he/she traveled through, and used it in a murder.

Update 10-27-09:

This article and this subject has garnered a lot of interest and many opinions. First, I am looking for the text of the Dual Sovereignty Doctrine. It shouldn’t be that difficult to find, but so far I have not found it.

I’m going to post information here, or maybe “opinions” is a better term, on how the doctrine works with the 5th Amendment and the double jeopardy clause. This will be a spot to drop documents that may provide answers. Maybe we will eventually see clearly why the Obama administration might want to retry cases already tried.

Keep in mind this thought: Dual sovereignty can be used when a resident of a U.S. State commits a crime that affect a federal interest – maybe a federal building, or institution or federal employee.

So what part does a “hate crime” have if nothing “federal” is involved. For instance, the recent murder of Bill Sparkman, a part time off-duty census taker in Kentucky, could allow the mudererers, if caught, to be tried by both a federal and a state court. What if the person found in the woods that day, where Mr. Sparkman was found, had no connection to the feds, other than being a resident of the United States. What if it was clearly a murder based on the person’s ethnicity or sexual persuasion? The answer is, it no longer matters.

Can the feds, now with the new law, try everyone deemed to be guilty of a hate crime?

While I understand that the Dual Sovereignty Doctrine does allow for prosecution by both Federal and State court in some instances, that would probably affect crimes committed but not yet tried, or crimes still yet to be committed.

But the administration now has the authority to try those already adjudged not guilty or innocent. Would that be for trials that have just currently been completed? Or can the administration go through the files searching for crimes against gays, transgenders and ethnicities, and go back as many years as they want? Is there a statute of limitations with the new hate crime bill?

Document Drop 1:

C – The Dual Sovereignty Doctrine
The principles underlying the dual sovereignty doctrine are not explicitly or implicitly expressed in the federal Constitution or in the constitution of any state, but are rather the product of judicial construction.

The doctrine arose primarily to accommodate the demands of concurrent state-federal jurisdiction in our unique system of federalism. Under a federalist system, governmental power is divided between two separate and independent entities: a central government responsible for national affairs and local governments responsible for local affairs….

While the foundation for the dual sovereignty doctrine can be
traced to a number of early Supreme Court cases,(90) the Court did not
actually employ the doctrine in its reasoning until United States v.
Lanza in 1922.(91) In Lanza, the defendants were prosecuted and
convicted in the state of Washington for manufacturing, transporting,
and possessing liquor in violation of the prohibition laws.(92)
Subsequently, the federal government sought to prosecute the defendants
for violating the National Prohibition Act.(93)…

The court did not, however, fully eliminate the double jeopardy prohibition from this context. The dual sovereignty doctrine continues to be limited by what is referred to as the “sham” exception, which was described by the Bartkus Court.

The sham exception provides that a prosecution by one sovereign cannot be used as a “sham and a cover” for another sovereign’s re-prosecution of the same defendant.

This doctrine would operate to prevent, on double jeopardy grounds, a prosecution brought by one sovereign with the encouragement and support of another sovereign that has already failed in its attempt to prosecute the same defendant.

The doctrine is founded on the rationale that the two sovereigns are acting as one. Unfortunately, this exception has been construed so narrowly as to make it difficult to be utilized successfully.

End TheFreeLibrary excerpt