By Geroge Leef

When big government collides with the rights guaranteed under the Constitution, it is usually the latter that give way. Many people know that to be the case with free speech and firearms, but they aren’t aware that that the Fifth Amendment’s guarantee that no person shall be twice put in jeopardy of life or limb for the same offense has similarly eroded. That is something they should worry about.

A Texas case that has been appealed to the Supreme Court gives the justices an opportunity to restore the power of the Double Jeopardy Clause.

Walker v. Texas arose when state officials indicted Calvin Walker, an electrician, on criminal fraud charges in 2013. The problem was that two years previously, federal authorities had brought Walker up on the exact same charges and he had entered into a plea deal. Could Texas bring the same case against him, or is that barred by the Double Jeopardy Clause?

Currently, the answer is that the second prosecution against Walker is not barred. That is due to an exception to double jeopardy the Supreme Court created back in 1959 in a pair of cases: Bartkus v. Illinois and Abbate v. United States.

In Bartkus, a man had been acquitted of bank robbery in federal court was later charged with the same crime by Illinois and convicted under its law. In Abbate, a man was charged and convicted in Illinois of conspiracy to destroy property owned by Southern Bell Telephone during a strike; then he was charged and convicted by federal officials of the same crime under federal law.

The Court ruled that the Double Jeopardy Clause did not bar the second prosecution in either case because it had never up to that point held that the Bill of Rights applied to the states. Justice Black dissented in Bartkus, writing, “Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization,” but the Court was content with its handiwork – the “dual sovereignty” exception that allows the federal government to try an individual for the same offense he has already been tried for by a state and vice versa.

Should the Court overturn the dual sovereignty exception? In this amicus brief, Cato Institute and the Constitutional Accountability Center make a strong argument that it should.

For one thing, the scope of the potential for double prosecution has grown enormously in the time since Bartkus and Abbate were decided. For most of our history, federal criminal law was very narrow, reflecting the narrow role for federal action under the Constitution. Most criminal matters were handled by state and local authorities; there was little overlap between the two spheres. But, to quote Justice Clarence Thomas (dissenting in Evans v. Thomas), there has been “a stunning expansion of federal criminal jurisdiction into a field tradition policed by state and local laws” over the last few decades. The overlap between federal and state criminal law is now very large, so the possibility of being “twice put in jeopardy” is great.

But why should we care? The Cato/Constitutional Accountability Center brief explains why. “When a defendant is subjected to multiple prosecutions for the same offense, the anxiety and humiliation are the same, regardless of whether the successive prosecutions are brought by the same sovereign or different ones. Similarly, the prospect that an innocent person might be wrongly convicted also increases with multiple prosecutions….”

Furthermore, allowing a second prosecution by a different level of government can give it “an illegitimate dress rehearsal of its case and a cheat peek at the defense,” as Yale Law School professors Akhil Reed Amar and Jonathan Marcus write in their article “Double Jeopardy Law After Rodney King.”

And perhaps the strongest argument of all is that in the years following Bartkus and Abbate, the Court’s jurisprudence began to recognize that the Bill of Rights should apply against the states and not just the federal government. Just two years later, the Court incorporated the Fourth Amendment’s protection against unreasonable search and seizure in Mapp v. Ohio. Previously, a state was allowed to use evidence seized in violation of the Fourth Amendment in its criminal prosecutions, but the Court put an end to that in Mapp.

Again to quote Amar and Marcus, the Court recognized that “the Fourteenth Amendment’s emphasis on individual rights against all government trumps abstract notions of federalism,” and that “the federal and state governments should not be allowed to do in tandem what neither could do alone.” That is to say, of course, try a person twice for the same offense.

Let’s hope that the Court grants certiorari in Walker and decides that it is time to jettison the dual-sovereignty exception to the Constitution’s rule against double jeopardy.