From: mnemonic@eff.org (Mike Godwin)
Subject: Re: double jeopardy (facist LA police)
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Date: Sun, 23 Aug 1992 13:20:19 GMT

In article <1992Aug23.050823.7813@panix.com> lkk@panix.com (Larry Kolodney) writes:

>Right.  The law as it is written is subject to abuse.  But the reason
>is not because it is double jeopardy.   The reson is because it makes
>it so easy for someone to commit multiple offenses, and not even know
>if they are committing an offense until they are convicted.

Oh, but I think it would be violative of the interest protected by the
Double Jeopardy Clause *even if the defendant knows of the potential for
multiple prosecutions.* I agree that there is some potential for a 
Lambert-type notice problem in the federal statute, but that's not what
I'm getting at.

>You are basically making a kind of "due process" argument, not a
>double jeopardy argument.

There is a substantive due process connection to my argument, but it has
nothing to do with whether the potential defendant might not know whether
he is committing an offense.

>Think about it.  Under the "community standards" doctrine, the act of
>mailing pornography to Cincinatti is a crime if the good citizens of
>that city think it is "without serious artistic value, etc. ... and
><offensive>", and have passed a law banning such material.

Sigh. I'm aware of the argument. I'm aware of the analysis. I keep telling
you this. I will ignore future postings in which you repeat an explanation
of an already well-understood analysis. (And in which you misspell
Cincinnati.)

>Now are you saying that the good citizens of Cincinnati are now
>absolutely powerless to prevent this vile smut from being mailed to
>their friends and neighbors (to use for god-knows-what evil purpose)?    

I don't believe I've said anything about anyone's being "powerless."

>>Think about it. You're a defendant, and the Department of Justice has
>>singled you out for bankruptcy. They take you on again and again in
>>expensive trials they admit are unlikely to gain upholdable convictions.
>>They *admit* that their purpose is to put you out of business.
>
>Same is true with civil forfeiture laws.  But the problem with them is
>not double jeopardy either.  Its due process.

I disagree. Forfeiture raises a somewhat different set of problems.

>If you could know in advance, through clear objective guidelines,
>whether or not you were violating the mailing obscenity statute, then
>it would be impossible for the feds to do what they do.

Actually, the Miller test is less vague than you seem to think it is.
Don't forget that one prong of the test is that the banned depiction must
be of sexual conduct specifically described in a state statute.

But I'm not sure why you are getting at the obscenity-law problems. I
agree that there is a problem with banning obscenity. These issues are
independent of my concern with multiple prosecutions.


--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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