Rolling the Dice on Gamble / First Step Act Update

Yesterday (Monday), the Senate held a procedural vote on the First Step Act to end debate and bring the bill up for a floor vote. The vote passed the procedural vote by an overwhelming 82-14. A vote is set for later today. Although Senators Tom Cotton (R-Arkansas) and John Kennedy (R-Louisiana) are going to try and add more amendments, many Senators, including several Republicans, have said that enough is enough. The concerns of violent criminals getting out early already has several safeguards in place.

The bill must pass the Senate with at least 60 votes. Once it does that, a joint committee between the House and Senate will discuss any compromises and the bill will be sent back to the House for a new vote. The House will return to session Wednesday evening and we expect them to pass it as early as Thursday. Once that occurs, the President has until noon eastern time on January 3, 2019 to sign it and the bill would go into effect.

We are keeping an eye on this and as soon as it passes both chambers and President Trump signs it, we will send out a breaking news email to share with you.

Until then, enjoy this week’s article.

In light of Gamble, and the still pending Eaton, asking the Supreme Court to overturn the “dual sovereignty” doctrine, numerous Constitutional “scholars” have come out of the wood work to criticize these two men for their supposedly radical attempts to completely remake American law. In reality, removing this doctrine would be a single step in reversing a century of disemboweling the Double Jeopardy Clause of the Constitution.

Prior to 1922, every civilized nation in the world viewed protection against Double Jeopardy as applying to proceedings from other countries. If Spain would charge a person with a crime, then France could not also charge the same person with the same crime. The verdict from one, whether innocent or guilty, was respected by all. This ancient rule predates our country. In 1820, the Supreme Court unambiguously stated that we followed this rule, in United States v. Pirates. As late as 1909, in Nielsen v. Oregon, the Supreme Court reiterated that a prosecution by one state would preclude a prosecution by another.

After the 18th Amendment was adopted, however, the Court reversed course. Taking a single sentence from an old case out of context, the case of United States v. Lanza created the legal fiction that it has always been permissible for the state and federal government to prosecute the same crime, because, magically, by being charged by two difference governments, one crime became two.

That it could not find a single case where such dual prosecution had ever occurred (let alone been upheld), should have given the Court pause. Ironically, every single case the Court cited directly rejected its new rule. For example, its case in chief Fox v. The State of Ohio (1847), spends it entirety explaining how the two offenses are different by their very nature and have been charged, without any allegation of double jeopardy, by other countries, without resort to dual sovereignty. This turned the uncontroversial idea that someone can commit multiple crimes in one course of action (think grand theft auto, fleeing from police, and hit and run, all in the same drive) with the abandonment of the 5th Amendment we have today.

In adopting this rule, we set ourselves apart, in a very bad way, from all of Europe, in elevating the need to secure convictions over the right of the individual to be free from vexatious, repetitive prosecutions. Decided as it was in a time when the Court expressed open contempt for the fundamental rights, this was a significant blow to the Bill of Rights. Not surprisingly, it was poorly received, and has never been accepted by legal scholars. It was wrong when it was decided, and has not gotten better with age.

Gamble and Eaton are insisting on the original meaning of the Double Jeopardy Clause-as a broad protection for defendants. This is, of course, not popular with those in positions of power who wish to win at all costs. But it was these very people the Clause was intended to thwart. For almost a century, we have used this illegitimate doctrine to get a second shot at those who successfully defend themselves. Since this is exactly what the 5th Amendment was meant to protect against, it is time to end this practice.

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#BackSoSoon is a blog dedicated to helping sex offenders successfully reintegrate back into society. Our Corrlinks address is backsosoonblog@gmail.com and our website is www.backsosoonblog.com.

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