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  1. #1
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    Default Double Jeopardy

    The U.S.S.C. declines to abolish the "Dual Sovereigns" doctrine.

    Good or bad?

    https://www.supremecourt.gov/opinion...7-646_d18e.pdf

  2. #2
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    Default Re: Double Jeopardy

    It's interesting who the two dissenters are.

  3. #3
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    Default Re: Double Jeopardy

    Did you read the decision? It was Gorsuch and Ginsburg.

    RBG wrote a dissenting opinion pretty much blasting the dual sovereign notion specifically, that just because an offense is defined by law from two sovereigns doesn't change the fact that it is the same offense under the laws of the UNITED STATES as a whole. States are distinct entities from the country in general. Gorsuch's opinion invokes biblical themes in it's opening but comes around to the same results. That the state and federal soverignity overlap enough to make the twice put in jeopardy to be a violation of the Constitution.

    I tend to agree with the minority. The major use in the past was to allow the treatment of drastic civil rights violations by the states, where the states declined to convict civil rights violators (notably those who would murder memebers of minority groups). However, in this case, it's pretty much the case as both the minority decisions put it, a clear abuse of the federal authority to "multiply" the sentence of something they weren't happy with the outcome.

    In the civil rights cases, one can argue that while it stems from the same event, the laws were different. In this case, they were pretty much identical, just the feds using their statute as a "second chance" to pile on additional sentence to the accused.

  4. #4
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    Default Re: Double Jeopardy

    Quote Quoting flyingron
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    Did you read the decision? It was Gorsuch and Ginsburg.
    If this was directed to me, no, I didn't read the decision; I just read which justices voted which way. That was all that was needed to have a basis to write what I previously wrote.

  5. #5
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    Default Re: Double Jeopardy

    Sorry, I misunderstood your statement. I thought you were interested in who the dissenters were, not that you found the two who dissented to be interesting.

    Actually, I don't really found it to be surprising. Gorsuch is a more theoretical Consitutionalist and the "Twice put in jeopardy" is framed as it would seem to have been implied by the framers, not grasping at theoretical straws.
    Despite coming up on the US DOJ side of things, he isn't a toady to federalism. Similarly, RBD is equally clear thinking in this. What is surprising is that there were more on the dissenting side.

  6. #6
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    Default Re: Double Jeopardy

    I like it actually. But I see it especially beneficial if one trial is a poochscrew, then there's another attempt to get it right. However, a lot of state trial issues don't necessarily fall under federal auspices. (auspices....my big word for the day)
    Growing old, mandatory. Growing up, optional!

  7. #7
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    Default Re: Double Jeopardy

    Quote Quoting flyingron
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    In the civil rights cases, one can argue that while it stems from the same event, the laws were different. In this case, they were pretty much identical, just the feds using their statute as a "second chance" to pile on additional sentence to the accused.
    Part of what the majority likely wanted to avoid is the messy problems that come up in trying to sort out which prosecutions would violate double jeopardy if you tossed the dual sovereignty issue. How do you decide which ones constitute prosecution for the same acts and which ones do not? How much difference does there need to be in the proof required to make them distinct crimes? When you start digging into it, there are a lot of situations where how you draw the line makes a significant difference, and the Court would have to try making a rule to draw that line. The Court has no always been very good at it, and it would likely takes decades of litigating cases to figure it out. That's not to say they shouldn't have chucked the dual sovereign rule just because it would be messy, but it's certainly something that would have at least been something I'd have thought about if I was one of the justices making that decision.

  8. #8
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    Default Re: Double Jeopardy

    Gorsuch explained it this way:


    As this Court explainedlong ago in Blockburger v. United States, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whethereach provision requires proof of a fact which the other doesnot.”13 So if two laws demand proof of the same facts to secure a conviction, they constitute a single offense under our Constitution and a second trial is forbidden.

  9. #9
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    Default Re: Double Jeopardy

    Quote Quoting budwad
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    Gorsuch explained it this way:
    That is the test often stated. The same test is usually used for lesser included offenses. But in the case of double jeopardy, that test may not be adequate. Let's suppose that the facts needed for conviction for the state offense and the federal offense are the same except for one: that for the federal offense the feds have to prove a connection to interstate commerce. That's usually not difficult to do. For example, for the feds to make the case on many computer crimes, they need to show that either the computer used for the crime was connected with interstate commerce (which of course they will be as at least one or more parts for the computer if not the whole computer was shipped interstate) or that the communications with the computer passed over an interstate system, which again is easy since the internet is by its nature an interstate system.

    So, let's say Alan is being prosecuted for receiving child porn on his computer, a crime that in his state requires proving the same thing that the feds have to prove except the feds have to prove some connection to interstate commerce, which is easy because the images were received over the internet. From Alan's perspective the crime is exactly the same; he didn't have to do anything different to be guilty of the offense under both federal and state laws. Used the same computer, received the same photos/videos, etc. The only difference is that the feds require that interstate connection and the state doesn't, something that doesn't require him to do anything extra or different. If the idea is to prosecute only once for what is really just one criminal act then I think Alan shouldn't be subject to prosecution under both federal and state laws. Yet, a literal application of the line drawn as Justice Gorsuch set it out would allow just that. It would make it easy for the state and the feds to get around the double jeopardy limitation (if you toss the dual sovereignty concept) leaving us much in the same place as we are now.

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