by Mitch Kokai
Senior Political Analyst, John Locke Foundation
George Leef’s latest Forbes column highlights one area in which the U.S. Supreme Court could help restore a fundamental constitutional right.
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. …
… 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.