Various statistics get thrown around and it’s hard to tell which are the most accurate, but roughly 98% of criminal prosecutions in the United States end in either convictions (6%) or guilty pleas pursuant to prosecutorial “bargains” (92%).
Now, if you really believe that only one in 50 Americans accused of a crime is innocent, there’s something wrong with you, but that’s not really the point of this column. The point is that America’s prosecutors are apparently so frustrated by the 2% that “get away” that they recently went all the way to the Supreme Court of the United States for more power, and got it … not just contrary to common sense, but in direct violation of the US Constitution’s prohibition of “double jeopardy.”
Here’s the relevant constitutional language: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
It’s a pretty simple concept. If you’re charged with a crime, and you get a fair trial, and if you’re acquitted by a jury of your peers, it’s over. You’re done. You’re free. The prosecutor can’t keep charging you and trying you over and over again until it gets the verdict he wants.
Alex Blueford was arrested in Arkansas and charged with a panoply of offenses relating to the death of his girlfriend’s infant daughter — murder, manslaughter, negligent homicide, etc. The purpose of the multiple charges for the same act was to give the jury options. If they didn’t think it was murder, they could convict on manslaughter. If they didn’t think it rose to the level of manslaughter, they could convict on negligent homicide. And so on, and so forth.
The jury found Blueford not guilty of murder, but deadlocked on the next step down (manslaughter). At that point, per the US Constitution, Blueford was free and clear of the murder charge, although he could be re-tried on the charges which the jury had “hung” on.
But the Constitution doesn’t matter — when the issue reached the Supreme Court, a majority ruled that, on technical detail (the “not guilty” verdict on murder was not read in court; the judge just declared a mistrial), Blueford could once again be put in jeopardy of life and limb for murder.
It seems like such a small thing, doesn’t it? After all, Blueford’s just one in 50 who doesn’t take a plea bargain, get convicted, or find himself charged with something different (a favorite government trick since the Rodney King case has been to charge those acquitted of a crime in state courts with “violating the civil rights” of their alleged victim in federal courts; same offense, just a different angle). Surely the prosecutor could have written off that murder charge and moved on to other things.
But no — the United States has long since passed beyond the point in its political evolution where the government will ever allow itself to be denied what it seeks. And if the rules threaten to so deprive it on any point, however minor or inconsequential, politicians in suits or politicians in black dresses will step in to correct the matter.
This latest outrage is not an anomaly. It’s an inevitable outcome of placing rulemaking authority in the hands of political government. The possible outcomes of state rule are total power or extinction. One of those is better for the state. The other is better for the rest of us.
Citations to this article:
- Thomas L. Knapp, I’ll Take “the Deck is Stacked” for $400, Alex, Deming, New Mexico Headlight, 06/19/12
Excellent points.
When I first heard about this a couple of days ago I was (slightly) surprised as I thought the one slight benefit of all the endless crime shows on TV was that there have been several scenes over the years (at least in the two that I watched, "The Practice" and the original "Law and Order" mothership) where the prosecution had to decide whether to hedge their bet and include the lessor charge of manslaughter, or go for broke and require the jury to convict on murder if they don't want the defendant back out on the street (where, if his really is a murderer, they or someone they care about might be his/her next victim). Because of all this use on TV I (naively it turns out) thought the protection against being re-tried was relatively safe.
Guess all those episodes will have to be somehow retconned now, before the average person, seeing a rerun, realizes that yet another fundamental right has been taken away.
They won't have to be retconned for this new precedent, just take that into account in the future, as they do anyway (I've often seen plot twists on Law and Order related to various case law). Incidentally, the ruling is not based on a new idea-jury verdicts don't count unless they're entered officially in the record, and this has long been established, so the Supremes are just following that. On the other hand, that doesn't mean they're not empowering prosecutors of course. The "separate sovereigns" doctrine that lets the feds charge people with a crime that has the same facts they were acquitted of does to my mind (at least in most cases) violate Double Jeopardy though.
My recent post The Idle Society
One thing I found interesting about the case was that the six men on the Supreme Ruled that the Fifth Amendment means nothing if you can think up a clever excuse to ignore it, while the three women on the court begged to differ.
Acquit everybody! Jury nullification may be the only solution to this terror.