Amending the Constitution to make the double jeopardy prohibition actually meaningful

Politics
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During this term, Denezpi v United States made the double jeopardy clause even more of a ■■■■■■■ joke than it was made by Gamble v United States in 2018.

My proposal is below, along with the text of the Fifth Amendment. All those words do three things. 1. Puts an end to the separate sovereigns and separate offenses loophole of the double jeopardy clause. 2. Puts an end to the O.J. scenario, where he was acquitted, yet later found liable. Essentially, a criminal acquittal would invoke the doctrine of estoppel, ending any separate civil actions if the defendant was acquitted in his criminal trial. It would also stop civil actions pending completion of criminal trials. 3. Let’s take the case of Dylan Roof. He faced a Federal trial for civil rights violations and a State trial for murder. If this amendment had been in place, the Federal Court would have tried the civil rights violations AND the State murder charges all at once. However, they could apply either the State penalties or the Federal penalties, but not both.

My hope would be to make the double jeopardy clause actually have real meaning.

Text of Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I propose:

Amendment ???

Section 1. No person shall be subject for offenses arising from the same action or set of actions to be twice put in jeopardy of criminal punishment of any type.

Section 2. The prohibition in Section 1 of this article of amendment shall apply to the same sovereign or any other sovereign under the jurisdiction of the United States, to include the United States, the several States, any territory or possession of the United States, the District constituting the seat of government of the United States and Indian Tribal Courts to include courts run by the United States.

Section 3. When a criminal act or series of criminal acts are committed within the jurisdiction of the United States that would be subject to prosecution for separate offenses by multiple sovereigns including violations of the civil rights laws of the United States, the United States shall notify the lesser sovereigns involved to suspend criminal proceedings until the United States makes a decision on whether to prosecute. If the United States shall decline to prosecute, it shall so notify the lesser sovereign. If the United States shall prosecute the offense, it shall have jurisdiction to prosecute any violation of the lesser sovereign’s statutes along with violations of the statutes of the United States. However, in sentencing, the United States shall only apply the heavier of either the United States criminal penalties or the lesser sovereign’s criminal penalties, but not both.

Section 4. When a defendant is facing civil proceedings and is in jeopardy of criminal proceedings arising from the same set of circumstances as the civil proceedings, the defendant shall be granted an abeyance of the civil proceedings until criminal proceedings have concluded. When a defendant is acquitted in criminal proceedings, all subsequent civil actions resulting from the same set of circumstances shall be forever estopped.

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why amend when a law would do? I also think they need to do away with the practice of charging several crimes for one offence.

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So now you want to place the judicial systems of every state under the authority of the United States.

No thank you!

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If they won’t obey the current constitution why would they obey a new amendment?

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Additionally, the proposed idea of placing the judicial systems of every state under the authority of the United States is a very, very bad idea . . . power corrupts, and absolute power corrupts absolutely. Let us keep the protection of federalism in place.

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i tend to agree, and since the original amendment does not specify that it applies only to the federal government, as the first does, its already the law. the problem is not what the constitution says, its what courts say it says. an easy fix would be for the congress to use its power to pass laws in furtherance of to limit the prosecutorial powers to what the constitution says. one bite at the apple.

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Neither does the “original amendment” suggest it is enforcable upon the states by the federal government. So, the question is, what was the intended purpose of adopting the first ten amendments to our federal constitution?

That question is answered in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789 confirms this to be true!

“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added”.

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who said anything about enforceable? its the constitution, they should obey it. the constitution applies to the whole united states. claiming the prohibition against being twice tried for the same crime does not apply to the states is ludicrous, there were no federal criminal statutes when the constitution was adopted. the framers never envisioned much in the way of federal law as laws apply to people, nor of federal law enforcement. those powers were almost exclusively state powers

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We are talking about the Fifth Amendment, which is one of the first ten amendments adopted, and the purpose for adopting those first ten amendments. And that purpose is stated in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789

“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added”.

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we are talking about the constitution and what it says.

the prohibition against being tried twice for the same crime applies to all levels of government. always has.

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The OP was talking about Amendment V, and that is one of the first ten amendments specifically adopted to prevent misconstruction or abuse of the newly created federal government and is not enforceable upon the various state governments.

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your assertion that those not identified as only applying to the federal government do not apply to government at all levels is ■■■■■■■■■ they do apply, and it was made clear in the 9th that powers prohibited to the states (like trying someone twice for the same crime) are prohibited. you want to read into 9 of the ten amendments what only one states “the congress shall make no law…”. if they were meant to only apply to the federal government, they said so, if not, they did not.

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My assertion? Don’t ascribe the documented purpose of the first ten amendments as my “assertion” when it is the stated purpose found in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789

“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added”.

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and nowhere in there do they state that those restrictions only apply to the federal government, the only place you see that, and one of them does, is the first. And the amendemts themselves make it clear this is the case. There was no federal militia, only state militia’s. no state may infringe on the right to keep and bear arms… for their own good. how and for what reason would an amendment enacted affecting a states militia if it didn’t apply to the states? why even mention a state if it didn’t apply to them?

There were no capitol federal offences, because at adoption, their were no federal laws (it is not possible for a law under the constitution to have pre-existed its ratification) only state laws. what law would anyone be tried twice for except a state law? does “in ALL criminal prosecutions…” have meaning? it says “ALL”, meaning all. not just some. once part of the constitution, unless specified as in the first, constitutional restrictions on governments ability to infringe on a persons rights apply to all levels of government, or they are not rights at all. “nor prohibited to them”, has meaning

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:roll_eyes:

If you want to make the first ten amendments, or any one of them, enforceable upon the states by the federal government and undermine federalism by allowing the federal government to meddle in the various state’s internal affairs, then do it in the manner allowed under Article V instead of attempting to make the constitution mean what you want it to mean.

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if you want “all” to not mean “all” try another language.

you are quite simply, wrong.

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Thank you for your opinion but the Founders were explicitly clear concerning the purpose for adopting the first ten amendments, and the amendments were specifically adopted to prevent misconstruction or abuse of the newly created federal government as documented in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789

And keep in mind:

"A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law." See Hawaii v. Mankichi, 190 U.S. 197 (1903),

So, if you want to make the first ten amendments, or any one of them, enforceable upon the states by the federal government and undermine federalism by allowing the federal government to enter the states and meddle in their internal affairs, then do it in the manner allowed under Article V instead of attempting to make the constitution mean what you want it to mean.

JWK

Those who reject abiding by the text of our Constitution, and the intentions and beliefs under which it was agree to, as documented from historical records ___ its framing and ratification debates which give context to its text ___ wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.

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Done. 14th.

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Your opinion which is unsubstantiated by its text and/or its legislative intent.

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no, they weren’t at all clear how they would apply and to whom. you think you know, because you choose to believe what you wish to believe.

all means all. it does not say “federal prosecutions” it says “all prosecutions”. the idea that double jeopardy does not attach to the states is just plain ignorant since the only prosecutions at the time of ratification were state prosecutions. why would they create an amendment to restrict a power they didn’t even think the federal government had?

where in the constitution is the federal government empowered to criminalize behaviors the states already had the power to criminalize? these are the police powers, and they are reserved to the states. what possible capitol offences did they envision other than the ones they exempted under was powers? was the federal government going to make murder a crime federally? robbery? were they going to make violating the commerce clause a capitol offense?

federalism does not mean the states can ignore constitutional prohibitions.