From: mnemonic@eff.org (Mike Godwin)
Subject: Re: double jeopardy (facist LA police)
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Date: Mon, 17 Aug 1992 15:30:15 GMT

In article <1992Aug17.041324.15863@panix.com> lkk@panix.com (Larry Kolodney) writes:

>Even if you accept the "seperate sovereigns" doctrine, this still only
>gives the government two chances to convict.  Where does "again and
>again" come from.

From literary license? Well, if you don't buy that, try this: there are
more than jurisdictions one can choose. For example, if you're the feds
and you want to prosecute a distributor of sexually oriented materials,
you can prosecute the the distributor in every federal district in which
the distribution took place, and you can do one prosecution after another
until you either win a conviction or put the defendant out of business.

I can imagine a scenario in which the defendant's alleged violation of
victims' civil rights occurred in more than one federal district.

>the only way for the same sovereign to have multiple prosecutions
>(barring a mistrial) is if the action in question genuinely involves
>more than one substantive offense AND <if I remember correctly> there
>new evidence is discovered which warrants prosecuting the second
>offense after the first acquittal.  

That's a Boolean AND, by the way. New evidence in itself is not enough.

>I'm not so sure it feels like double jeopardy.  The point of the
>double jeopardy clause (in my mind) is to prevent the harrasment of
>unfavored individuals by powerful prosecutors.

Sigh. That is surely one of its points. But recall that "powerful
prosecutors" may in fact be well-meaning, principled individuals.
What you're saying here is that the Double Jeopardy Clause is designed
to bar actions by bad apples; the problem is that no prosecutor perceives
himself as a bad apple--it's always easy to rationalize that the Double
Jeopardy Clause isn't meant to bar subsequent prosecutions when the 
defendants are *really guilty*. Easy and wrong.

One of the hardest things about adhering to restrictions on government
power is that sometimes the bad guys do win. That's the price of living
in a free society.

>Giving the Feds a
>chance to intervene where civil rights have been violated doesn't
>appear to be an abuse the kind of which the jeopardy clause is meant
>to prevent.

It seems so to me. If you don't think the Double Jeopardy Clause was
aimed at well-meaning prosecutors as well as corrupt ones, you don't
understand the thrust of the Bill of Rights: We can *always* justify
a second, or third, or fourth prosecution when we decide that a particular
defendant is just too evil to be allowed to be acquitted.

>Do you feel the same way about Al Capone being convicted for violating
>the section of the IRS code which requires reporting income from
>criminal activities?  

No. Failure to report income is truly separate conduct from bootlegging
and extortion.


--Mike




-- 
Mike Godwin,    |"If there is a bedrock principle underlying the First
mnemonic@eff.org| Amendment, it is that the government may not prohibit 
(617) 864-0665  | the expression of an idea simply because society finds 
EFF, Cambridge  | the idea itself offensive or disagreeable." --W. Brennan
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