Ken at Popehat has an explainer on how the case of Gamble v. U.S. before the Supreme Court, on the operation of the dual-sovereignty exception to double jeopardy protection, is 1) not the subject of some fiendish plot to give Trump pardons universal effect by way of a Kavanaugh fifth vote; 2) not a conventional left-right issue either, Ruth Ginsburg and Clarence Thomas having joined in an opinion questioning the current doctrine. (Cato has joined in an amicus brief with Brianne Gorod of the left-leaning Constitutional Accountability Center to support the Ginsburg-Thomas position as more consistent with both originalism and civil liberties.) Earlier here (cert stage of Gamble) and here (similar Tyler case).
- “Lawmakers must act now to close New York’s double jeopardy loophole,” claims New York Attorney General Barbara Underwood. Its what? [Kenneth Lovett/New York Daily News, Jacob Sullum/Reason, Jed Shugerman/Slate (defending closing of “loophole”), Jonathan Blanks on Twitter, earlier]
- Speaking of pardon powers, Debra Saunders quotes me in column on Presidential pardons, Martha Stewart, Rod Blagojevich, Marc Rich, etc. [Las Vegas Review Journal/syndicated]
- “California Town Hired Private Law Firm to Sue Citizens, Then Tried to Conceal Massive Costs” [Scott Shackford, earlier on Indio, Coachella, etc.] Bill passed by California assembly “would put an end to a practice in which several cities have been contracting with private prosecutors to handle nuisance abatement cases, then billing the impacted citizens thousands in lawyers’ fees.” [same]
- “In light of the [Aaron] Persky recall, here are some studies on the impact of elections on judicial behavior. The story is consistent: elections make judges harsher, and there may be other costs as well (like lower-skilled people becoming judges).” [John Pfaff Twitter thread, earlier here, here, and here]
- “CBP Sued For Seizing $41,000 From Airline Passenger, Then Refusing To Give It Back Unless She Promised Not To Sue” [Tim Cushing, TechDirt]
- Even when suspects are in fact guilty, lies told to justify searches “corrupt the law in order to enforce it. That’s not how policing is supposed to work.” [Jonathan Blanks on Joseph Goldstein, New York Times investigation of police perjury (“testilying”)]
- Since political belief has not been made a protected class under New York public accommodations law, it’s no surprise — various memes notwithstanding — that a judge would find taverns entitled by law to deny service to a candidate’s supporters [Julia Marsh, New York Post]
- Florida: “Attorney faces federal prison after admitting role in $23M auto insurance fraud” [Paula McMahon/Sun-Sentinel, more]
- Pardons, double jeopardy, and now-departed Attorney General Eric Schneiderman: “Historically, New York was proud of providing greater constitutional protections than the feds offered, but that was before Trump.” [Scott Greenfield]
- Megan McArdle follows up on her Alfie Evans column (and thanks for mention) [Washington Post, earlier]
- Not your conventional presidential lawyer: two reports look at the legal practice of attorney Michael Cohen [Ilya Marritz and Andrea Bernstein/WNYC, Seth Hettena/Rolling Stone]
- Harshing the mellow: Regulation, taxes driving some cannabis culture back underground in California [David Boaz, Cato]
- 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]
- Even if troublesome for other reasons, discussion of nominees’ religious beliefs does not violate the Constitution’s Religious Test Clause [my post at Secular Right]
- I’m quoted toward the end of this report: Congress rather than courts likely to get ultimate say on defining “emoluments” [NPR with Peter Overby, audio and related article, earlier]
- Convention of the States? Federalist Society panel video with Thomas Brinkman, Jennifer Brunner, David Forte, Matt Huffman, Larry Obhof, Matthew Byrne [earlier on Article V conventions]
- Supreme Court opened — and should now close — “dual sovereignty” exception to rule against double jeopardy [Ilya Shapiro, Cato]
- Encyclopedia of Libertarianism, 2008, has articles on the U.S. Constitution by David Mayer and on the rule of law by Norman Barry;
- Following big First Amendment win in Slants case Matal v. Tam, feds drop effort to void trademark of Washington Redskins [Ilya Shapiro, Eugene Volokh, earlier]
United Nations “human rights expert” suggests that compliance with international human rights norms may require casting about for some way to re-prosecute George Zimmerman since the first prosecution didn’t come out as some hoped. [Volokh] As Hans Bader points out, Article 14, Section 7 of the International Covenant on Civil and Political Rights forbids, as opposed to requiring, the exposure of defendants to double jeopardy.
As I mentioned in my CNN piece on Friday, various voices are calling for the federal prosecution of George Zimmerman following his acquittal on state-court charges [commentary about that: Jonathan Adler, Jacob Sullum, Steve Chapman, Eugene Volokh; see also the update to my Friday post regarding the possibility of “hate crime” charges] In a letter to Attorney General Eric Holder, the American Civil Liberties Union (ACLU) takes the view that a federal prosecution would be improper double jeopardy, implicitly rebuking its own executive director, Anthony Romero, who had suggested otherwise in early comments to the press following the verdict [TalkLeft (“the organization came to its senses”), Politico, text of letter from Laura Murphy, director of ACLU Washington Office, PDF; see also David Bernstein]
As I noted in my CNN piece, the exception for “dual sovereignty” prosecutions arose in a 1959 Supreme Court case called Bartkus v. Illinois, decided 5-4, in which the dissenters were the four liberals: Earl Warren, William Douglas, Hugo Black and William Brennan. Here are a few things that Hugo Black had to say in his dissent, joined by Douglas and Warren: “Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization,” one that did not disappear “even in the Dark Ages.” And “retrials after acquittal have been considered particularly obnoxious, worse even, in the eyes of many, than retrials after conviction.” In short, “double prosecutions for the same offense” are “contrary to the spirit of our free country.” (& welcome Instapundit, InsiderOnline readers)
Because the important thing is to show that lawmakers have their hearts in the right place, which means not lingering over doubts about the constitutionality of the restrictions on speech or the implied rebuke to double-jeopardy norms or the nature of the delegation of federal power to tribal courts. Who cares about that stuff anyway when there’s a message to be sent about being tough on domestic violence?
P.S. In case you wondered, the U.N. is in favor.
Hans Bader points out that a very important motivation for the pending expansion of federal hate-crimes law is to exploit a loophole the Supreme Court has created in its application of the important Constitutional principle, by exposing defendants to jeopardy a second time despite acquittal or dropping of charges in state courts.