Maggie’s Notebook
October 29, 2009

The Hate Crimes Bill was stuffed inside the military appropriations bill, in honor of deceased Senator Ted Kennedy, and passed into Law today. Now our government has the legal authority to retry cases that resolved without a guilty verdict. I had to read it twice. Actually I read that several more times. This law actually will allow the DOJ to retry cases that were adjudged “innocent” or “not guilty.” It’s not about double jeopardy. It is all about dual sovereignty.

Hans Bader writing for Stop the ACLU explains how this happens:

…the bill’s sponsors seek to use it to reprosecute people in federal court who have already been found innocent of hate crimes in state court, taking advantage of the “dual sovereignty” loophole in constitutional protections against double jeopardy.

[efoods]The double jeopardy clause lives within the The 5th Amendment. Dual Sovereignty is a legal doctrine. As I’ve read some examples of how dual sovereignty can inject itself and remain constitutional, the example of Timothy McVeigh, the Oklahoma City Murrah Building bomber, is often mentioned. McVeigh could be tried both in Oklahoma and in Federal Court, but he was tried in federal court for the murder of 8 federal employees, rather than the 168 people he murdered in Oklahoma.

This article gives some good examples of how dual sovereignty is used, but says this:

The dual sovereignty doctrine is controversial, but there are not very many instances of successive state and federal prosecutions. Both the federal and state governments have imposed limits on their ability to re-prosecute the same conduct. The federal limit is found in a Department of Justice policy that generally forbids prosecuting conduct that has already been prosecuted.

There are exceptions for cases in which justice was not done in the prior prosecution—for example, the judge or prosecutor was corrupt or the jury entered an acquittal that was clearly against the evidence.

So apparently this DOJ and Barack Obama believe that justice is not done often enough, and that courts often do not punish those who commit hate crimes?

No discussion is necessary of the fact that any violent act against anyone is hateful. No matter your color, your gender, your sexual persuasion, your ethnicity – a violent act is criminal and should be punished, but here is a closing question: is it possible for a straight white person to have a crime of “hate” perpetrated against him/her?

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