Civil rights and double jeopardy

[Greg Broiles <gbroiles@netbox.com>]

At 08:51 PM 10/1/96 -0700, Dale Thorn wrote:

>Once they could no longer look the other way, those higher-level 
>authorities should have proceeded against the local governments as I 
>specified, rather than undermining the Constitutional enumerations.

The protection against double jeopardy is constitutionally based and
cannot be modified by statute, e.g., the Civil Rights Act of 1964.
The various civil rights acts, movements, and statutes did not make
Congress nor the executive adopt a loophole around the double jeopardy
protections; the loophole existed considerably prior to then. The double
jeopardy clause is interpreted (and has been since at least 1922) so that
it only bars multiple prosecutions (or punishments) by the same sovereign.
In _US v. Lanza_ 260 U.S. 377 (1922), the Supreme Court wrote: ". . an act
denounced by both national and state sovereignties is an offense against
the peace and dignity of both and may be prosecuted and punished by each."

Where an act violates both federal and state law, both the federal and
state governments think they get an opportunity to prosecute. Thus, racial
violence or murder which violates state assault or homicide laws gets a
state prosecution; and where it also violates federal civil rights laws (18
USC 241 or 242) it is also prosecutable federally. Ditto for many drug
crimes. An act which does not violate federal law (say, jaywalking) cannot
be prosecuted federally; this limits the situations where multiple
sovereigns can lead to multiple prosecutions. (but with Congress expanding
federal criminal law ...) 

(There's an exception to the dual sovereignty exception to the double
jeopardy clause, the "Bartkus exception", where the second prosecution is a
sham or a fake undertaken to serve the interests of the first sovereign;
but it's very hard to win a _Bartkus_ argument. Stacy Koon (one of the cops
convicted for the beating of Rodney King) tried to argue Bartkus and lost.)

Sorry for wandering off into legalpunks land but it's simply not the case
that the civil rights movement caused the erosion of the double jeopardy
clause, or that there's a magic "civil rights exception". Dual-sovereign
double jeopardy is alive & well in drug prosecutions today. Civil rights
just gets all of the press. 


--
Greg Broiles                |  "We pretend to be their friends,
gbroiles@netbox.com         |   but they fuck with our heads."
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