Crime and punishment roundup

  • Fiasco of Cliven Bundy prosecution points up that even those who break the law are entitled to a fair trial. “In the Bundy case, Judge Navarro slammed the FBI for withholding key evidence. Unfortunately, this seems to be standard procedure for the FBI.” [James Bovard, USA Today; Mark Joseph Stern, Slate; earlier]
  • Don’t undermine structural protection Double Jeopardy Clause provides against prosecutorial overreach [Jay Schweikert on Cato amicus brief in Currier v. Virginia] Case gives SCOTUS chance to reconsider “dual sovereignty” exception to Double Jeopardy Clause [Ilya Shapiro on Cato certiorari brief in Gamble v. U.S.]
  • “The room he was in happened to fall within 572 feet of a park and 872 feet of a school,” within the 1000 feet set by Tennessee law, result misery [C.J. Ciaramella and Lauren Krisai, Reason (“Drug-free school zone laws are rarely if ever used to prosecute sales of drugs to minors. Such cases are largely a figment of our popular imagination.”)]
  • Missed last spring: this challenge to the “Standard Story” of mass incarceration [Adam Gopnik on John Pfaff’s “Locked In”]
  • Ignorance of the law is no excuse. But with law having proliferated beyond anyone’s grasp, perhaps it should be? [Stephen Carter, Bloomberg, earlier]
  • Another study finds decriminalizing prostitution reduces sexual abuse and rape [Alex Tabarrok]


  • “Dual sovereignty” seems to me to be 100% correct, even if it can be said to work injustice sometimes.

    First of all, how does one separate out vastly different statutes with different elements. For example, the Rodney King case–there is a difference between a civil rights violation and an assault. So how do you develop a mature doctrine describing when a subsequent prosecution is precluded and when it is not?

    Second, how do you get around the idea that states have the right under our system of government to punish violations of its criminal law? And, doctrinally, other than ipse dixit, how can a court come to the conclusion that a federal prosecution nullifies that criminal law for that particular case–there’s nothing other than a rhetorical foot-stomp that it’s not fair.

  • SPO, the Rodney King case is in fact a classic example of misuse of the dual sovereignty doctrine. There was no difference between state “assault” charges and federal “civil rights” charges. It was simply a matter that several dozen people were killed in riots following the acquittal on state charges so the Bush Administration made the political decision only after that happened to bring federal charges. Even the local ACLU demanded federal charges be filed, although after that happened, the national organization very quietly expressed its disagreement.

    There are cases where separate state and federal cases might be called for (drug trafficking/tax evasion?) but the King case is nowhere close to one of those.

    • And how do you draw the line? And how was the federal prosecution misused? Is it your argument that state charges (which are bound up in cockeyed self-defense concepts when ti comes to police violence) preclude the federal government from acting? Doesn’t that turn supremacy on its head?

      The federal charges may have been politically motivated, but that’s not a Double Jeopardy issue–you’re mixing apples and oranges.