Subscribe Subscribe   Find us on Twitter Follow POL on Twitter  



Hans Bader on double jeopardy safeguards: Blueford v. Arkansas

| No Comments

Hans Bader, senior attorney and counsel for special projects with the Competitive Enterprise Institute, followed up on our recent post discussing the Supreme Court's ruling in Blueford v. Arkansas.

Bader writes:

The Supreme Court recently weakened constitutional protections against double jeopardy in Blueford v. Arkansas, a homicide case. The 6-to-3 decision was written by Chief Justice Roberts. It allowed a defendant to be retried for murder -- not just manslaughter -- even though the jury forewoman had reported that the jurors had unanimously rejected murder charges and were deadlocked on the lesser manslaughter count.

In the Blueford decision, more of the liberal justices were protective of double jeopardy protections than conservative justices. But in other contexts, liberals are even more eager to sacrifice constitutional protections against double jeopardy -- even where a jury has rejected not just some charges (as in the Blueford case) but all charges against the defendant.

In 2009, a liberal Congress passed, and President Obama signed into law, an expansion of federal hate crimes law partly designed to enable federal prosecutors to reprosecute people who had already been acquitted of hate crimes in state court. (This is permitted under a loophole in double-jeopardy protections known as the "dual sovereignty" doctrine). Liberal Supreme Court Justices had earlier proved less sympathetic than conservative justices to defendants subjected to federal prosecutions after a state court acquittal in Koon v. United States (1996), a case with racial overtones. The defendants' convictions in that case were sustained based on "dual sovereignty," but the Court reduced their sentences, citing the successive prosecutions. In politically charged cases, some people just can't accept a not-guilty verdict or dropped prosecution. As law professor Gail Heriot has noted, some supporters of the 2009 federal hate crimes law "even called for federal prosecution of the Duke University lacrosse team members-despite strong evidence of their innocence."

Leave a comment

Once submitted, the comment will first be reviewed by our editors and is not guaranteed to be published. Point of Law editors reserve the right to edit, delete, move, or mark as spam any and all comments. They also have the right to block access to any one or group from commenting or from the entire blog. A comment which does not add to the conversation, runs of on an inappropriate tangent, or kills the conversation may be edited, moved, or deleted.

The views and opinions of those providing comments are those of the author of the comment alone, and even if allowed onto the site do not reflect the opinions of Point of Law bloggers or the Manhattan Institute for Policy Research or any employee thereof. Comments submitted to Point of Law are the sole responsibility of their authors, and the author will take full responsibility for the comment, including any asserted liability for defamation or any other cause of action, and neither the Manhattan Institute nor its insurance carriers will assume responsibility for the comment merely because the Institute has provided the forum for its posting.

Related Entries:



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.