5th Amendment Double Jeopardy - Research Paper Example

5th Amendment Double Jeopardy Double Jeopardy, according to the Fifth Amendment s explicitly that one should not be subject for the same offence more than once putting in jeopardy life or limb (Jahncke, 1991); it is provided for by the constitution as a guarantee and it encompasses several protections. For one, it prevents the state from prosecuting and individual for a second time after they have undergone prosecution and subsequently being acquitted of a crime. Secondly the government is not allowed to prosecute someone for a second time for the same offense for which he has already been convicted; thirdly, the state cannot impose multiple penalties on the perpetrator of an offence in subsequent proceedings. The final provision is that in some cases, the state cannot be allowed to prosecute an individual for the second time after their trial has been dismissed on prematurely either through a mistrial of having the charges dismissed (Rudstein, 2005). The most common and widely accepted definition of the clause of double jeopardy in the US context was proposed by the Supreme Court in Green v. United States wherein the presiding judge Hugo Black stated that: “The constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense” (Sigler, 1969) This paper will undertake a discussion of the double jeopardy statutes with emphasis on the background application as well as some of the issue that arise in its wake culminating in a discussion of its advantages and disadvantages. Although the law appears to be based on a relatively modern and even liberal principle, it is worth noting that it is one of the oldest known legal statutes in both written and unwritten laws transcending numinous culture and traversing diverse societies throughout the ages. In around 355B.C Demosthenes; and Athenian statesman of note said that the law cannot allow the same person to be tried for the same crime twice. This principle was codified by the romans later in the digest of Justinian in 533 A.D and it survived despite the rapid deterioration of roman traditions that resulted from the incursion of Jewish and Christian learning and traditions (Baum, 2000). The concept is said to have survived through to the middle ages and this is reflected in the canon laws and teachings of early Christian writers who would have otherwise been expected to dismiss most of the grace roman traditions and pagan and sinful. The romans had a particularly interesting sense of justice in respect to the double jeopardy law and in many ways they were significantly before their time. An example is given of time when Emperor Tiberius was displeased when a jury acquitted a man he though should have been found guilty; however, he could not have him tried again for the same and he had him accused of something else. The Roman notion however sharply differs from the modern one since the double jeopardy rule meant one could not be accused by the “same person” for the same crime twice. Consider a case where someone trespasses into a village and steals say 5 horses (ex post facto roman context), this individual is apprehended and tried for the theft of the horses by four of the owners. However after he has been sentenced, the owner of the fifth horse who was not aware of the crime would be at liberty to have him tried since essentially the romans assumed that committing the same crime to different people could be viewed as separate crimes therefore not covered by double jeopardy. In England, the protection against double jeopardy was deemed a universal maxim in the common law especially since it was supported by prominent jurists such as Henry de Bracton in 1250 and other such as Sir Edward coke and William Blackstone (Sigler, 1963). Notwithstanding, despite its recognition, the definition was extremely narrow as was the practice, it was only applicable to capital felonies and even then it could be applied only after conviction or acquittal. It was not applied to cases that had been terminated prior to final judgment and given the fact that the country was a monarchy, the law was often abused by the monarchy. An example of this law in practice can be demonstrated by examining and early case study in which an individual was accused of practicing unlicensed medicine for over a period of one month. In the law there was a different punishment for this crime if one practiced for a month or any amount of time. The justices argued against implementing both punishments on the same person since according to him when one is tried for unlawfully practicing medicine for a month, they do not deserve to the subsequently prosecuted for practicing it for any period of time. In the United States the colonialist by virtue of the British association were well aware of the works of Brackton, Coke and Blackwater; indeed copies of their works were available in most of the colonies and as a result most scholars and lawyers were intimately familiar with their ideas (Cantrell, 1983). These made the basis of the appeals of colonist when they felt that parliament was exceeding its authority in matter political and judicial. This awareness was couple with awareness of the narrow scope of double jeopardy from the English perceptive and sought to expand and make the concept more universally applicable to all crimes and felonies. One of the first attempts was by Madison in which he posits that; "No person shall be subject ... to more than one punishment or one trial for the same offense" (United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 [1989]). This was opposed by several house members who claimed that the defendant could be prevented from appealing on a second trial appealing conviction. Ultimately the language in the Fifth Amendment was edited to accommodate this concern, nevertheless the final version was ratified by states still leaves questions for judicial interpretation. This has actually been a highly debated issue since in view of the dictates of the rule of double jeopardy, one should not be subject to danger of life or limb for a crime more than once. The fact that the same laws allow enhancement of punishment for subsequent crime can be viewed as a contradiction since in a way double jeopardy is compromises. Say someone is convicted for selling drugs and sentenced 3 years in prison, should they be arrested for the same crime after they are freed, they will be tried as second offenders and thus may end up being sentenced say 5 years. One can argue that the two extra years are actually punishment for the first crime and as a result the law of double jeopardy has been broken. Irrespective of the fact that in contemporary theory and practice of laws double jeopardy protects against multiple punishments for the same offense, the Supreme Court in the US has in several instances failed to provide protection against the same. One of the ways this has occurred is because it does not enforce prohibition against the legislature and the court holds that if the legislature allows more than one punishment for the same crime the courts may sentence one to both (Rudstein, 2005). It is for this reason that the laws will stipulate that when once commits a given crime they may be jailed of fined or both. In this regard the punishments are considered by virtue of their legislative merit rather than quantitative since one can actually be jailed and fined even though this is technically in contravention of double jeopardy. It has however been argued that the double jeopardy clause is useful in preventing the courts from sentencing one to punishments harsher than those stipulated by the legislature. While this appears to be a sound piece of logic, from a pragmatic perspective there is no such protection since even in the absence of double jeopardy the courts could never hand out anything that is not stipulated for by the legislature. Ipso facto, the court considers that when the laws stipulates two punishments (i.e. fine and prison time), and they assume it is the same as when only one punishment is prescribed. Most states have laws that provide for the punishment of recidivists in a more severe manner than first time offenders, the severity can be increased in a variety of ways (Hessick & Hessick, 2011). Under some statutes, second and subsequent crimes are considered as being of higher classes than the first ones, in other cases states have implemented the three or four strikes. This implies that should an offended be convicted for certain crimes for more than a given number of times, they will be automatically sentenced to life imprisonment. In regard to the accusation that enhancing recidivist sentences is in breach of double jeopardy, the Supreme Court has argued in the contrary direction based on two justification. For one, double jeopardy, is supposed to protect against multiple punishments for the same crime and an enhancement does not constitute a crime but rather an aggravating factor that should be taken to account during conviction. Secondly, they claim that an increased punishment is not a second punishment but rather a based on the background from which they committed the crime which according to the court is made more severe in view of the fact that they had already committed the offence previously (Hessick & Hessick, 2011). Over the years the issue of double jeopardy has brought about a great deal of controversy with some people claiming that it gave way too much leeway for criminals to get away with crime depending on how good their lawyers are. Some people are of the opinion that if fresh evidence is found, it should be admissible and based on how compelling it is the cases should be reopened if there was an acquittal. On the other hand there are those who fully support the law with the argument that it makes for more competent and thorough prosecutions and police forces. Some of the advantages and disadvantages of double jeopardy are considered below. One of the disadvantages of the double jeopardy laws is that it makes it possible for people to get away with a crime since after the prosecution is done and the suspect is acquitted, there is no way for them to put them back on trial even if new evidence emerges. The reason people follow the law is because they respect the social contract that it underscores in which each person submits their power to a collective ideology (Westen, 1980). However in some cases, the same can be used and people get away with crimes which can ultimately result in a guilty person being legally allowed to escape punishment based on a technicality; it shakes the confidence of people in the law by making it appear as if there are those powerful enough to commit crimes and be protected by the law. Consider the case of Emmett Till a black teenager who was murdered by two white men who were however found innocent by the court mostly due to lack of evidence as well as racially biased judicial system (Baker, 2006). However, after this conviction, the two admitted to having killed him and even sold the rights to the “Real life story” for publication; a law that allows murderers to admit to having committed a crime and protects them from prosecution is immoral and flies in the face of the logic on which the necessity of having laws in the first place is based. Courts exist for the sake of providing justice, in Emmett Tills case, this was denied and the perpetrators allowed to continue living as free men because of double jeopardy. This and other search cases call to question the fairness of the statute and many have argues that it should be at least modified to allow for the admission of new evidence. The most compelling and logical reason for opposing double jeopardy is the fact that in as much as the case ends at a conviction or acquittal, the issue do not cease to exist and new evidence may emerge. For example if someone was acquitted of murder because the body was never found, however afterwards the body is recovered with DNA evidence proving that they were involved or at least they had lied in the trial (Cheng, 2004). In the same way convicted people are allowed to appeal the verdict if the find evidence that could exonerate them even after years in prison, the prosecution should also be allowed to submit new evidences so that people can stop enjoying the immoral protection of double jeopardy statutes when they are actually guilty. Double jeopardy laws can also be cause very serious problems for prosecutors and the police since they must always be double sure of their cases before they commences as they do not get a second chance should they fail to get a conviction. Some of the reasons may drug lords and members of organized criminal gangs mores hos with access to a lot of money remain free is because the police cannot fare arrest them unless hey have irrefutable proof of their innocence. As they look for this crucial evidence, the criminal’s bay be using their time and freedom to commit more crimes or even flee the country. The fact that they have a lot of money means that a weak case will easily and quickly be destroyed by their many expensive lawyers. Despite the many arguments in against double jeopardy, the other side of the coin is compelled by equally or even more compelling arguments as to why the law exists almost universally despite the fact that it is a well-known fact that it could allow people to get away with crime. One prohibition of double jeopardy serves to protect people innocent or guilty from being tried repeatedly of the same crime which could result to abusing the legal system by letting the prosecution keep trying them and wasting their time in their effort to prove they are guilty. For example, if someone was charged with robbing a shop and the jury found them guilty, double jeopardy prohibition means the prosecution cannot prosecute him a second time. However, in its absence the person could be re-arrested after acquittal and tried again and again until the prosecution managed to get a jury that could get a conviction (Roberts, 2002). At the end of the day when one is found innocent by a court they are done with defending themselves and irrespective of the evidence that may come up after the fact, they will remain as such. In response to the claim that double jeopardy enables criminals to escape supporters argue that while this may be true , the purposed of the laws apart from ensuing justice is also to make sure that innocent people are not punished. Therefore, the number of those who get away with crimes for which they are guilty under double jeopardy is considered a fair price to pay for the freedoms of the many more innocent ones protected by it. Because of double jeopardy, district attorneys are forced to ensure that they try cases correctly since they only get once chance in which they should do so. As a result the public is protected from having individual brought to trial on trumped up or poorly investigated charges. Otherwise there would be no reason for the prosecution to work so hard the first time since there will after all always be a second time. With the rules of double jeopardy everyone brought before the court will be subjected to as thorough an investigation and prosecution as possible since it is a onetime process. The law requires that everyone gets the benefit of doubt and that a conviction should only be arrived at if they are convinced beyond any reasonable doubt-not of their innocence but rather their guilt. Therefore, while a jury may not be persuaded that someone is innocent, that they have any doubt that they could be guilty should be grounds enough to find them not guilty. In the contemporary setting, process of trying cases and gathering evidence is supported by a host of technologies that did not exist in the past and as a result when cases are brought to trial, the evidence tends to be fairly compelling. Through DNA testing, surveillance cameras and speech and image detection software, courts can often be quite sure that when someone of found guilty they are indeed guilty. Granted that the system is not perfect and since it is operated by fallible humans it needs must by extension be fallible, notwithstanding, when a case needs to be reintroduced to the court for a second time this is enough evidence that it should not have resulted in a conviction after all. For example if someone is accuse of killing and they are found innocent and then the prosecutor comes up with new evidence after the fact proving that they had actually committed the crime (Danielsen et al., 2009). The argument by opponents of the double jeopardy statute would be that the fact that the case was not tried properly, since new evidence has been uncovered will uses this fact to justify a second trial. Nevertheless supporters of double jeopardy on the other hand will use the same evidence to argue a contrary point. The fact that when the trial was taking place all the evidence was not available implies that there would have been reasonable doubt of the prisoners guilt and thus justifies finding them guilty due to the existence of reasonable doubt. The punishments prescribe by the legislation are not the only way offenders can be penalized, without double jeopardy in place, innocent people could be punished by being caused to spend a lot of time in court and possibly remand. Essentially a prison sentence implies lack of freedom as does house arrest since in both cases one has to remain within the confines of personal freedom dictated by the court otherwise face prosecution and possibly further punishment(Jahncke,1991). By extension, a court trial is just as limiting to freedom since one has to be present at the court if they are on trial and they have no say in as far as the schedule is concerned. In addition their economic production is limited as they may not manage to attend work regularly. Therefore, double jeopardy ensures that innocent people are protected from this sort of punishment which a prosecution would otherwise contrive to inflict on them on failure to get a conviction. Conclusion At the end of the day, one is forced to acquiescence to the bitter reality that is underpinned by double jeopardy protection; it is possible for criminals to get away with crime and in some cases even get a chance to commit others even when it is known that they are a security risk. Double jeopardy can be seen as being capable of tying the hands of the law and while this is seen as immoral in some case, on must stop to consider the greater good in the fact that people do not have to relive the nightmare that is a trial after they have been acquitted. Ultimately in as much as the law exists to protect the people, there comes a time when they need to be protected from it or more to the point from elements within and without government who would use it to punish and inconvenient others unnecessarily and this protection is provided by the statute of double jeopardy. References Baker, C. (2006). Emmett Till, Justice, and the Task of Recognition. The Journal of American Culture, 29(2), 111-124. Baum, L. M. (2000). Pursuing Justice in a Climate of Moral Outrage: An Evaluation of the Rights of the Accused in the Rome Statute of the International Criminal Court. Wis. Intl LJ, 19, 197. Cantrell, C. L. (1983). Double Jeopardy and Multiple Punishment: A Historical and Constitutional Analysis. S. Tex. LJ, 24, 735. Cheng, E. K. (2004). Reenvisioning Law Through the DNA Lens. NYU Ann. Surv. Am. L., 60, 649. Danielsen, F., Beukema, H., Burgess, N. D., Parish, F., Bruehl, C. A., Donald, P. F., ... & Fitzherbert, E. B. (2009). 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The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences. Michigan Law Review, 1001-1065. Read More