Sentencing

If at First You Don't Get a Prison Sentence, Try, Try Again

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Two years ago Steven D. Ballinger of Collinsville, Illinois, was sentenced to two and a half years of probation in state court after he pleaded guilty to sexual abuse and child pornography charges stemming from his videotaped encounter with a 12-year-old girl in July 2006, when he was 26. Last Friday he was sentenced to 30 years in prison for the same crime, this time in federal court. A federal prosecutor explained that U.S. Attorney Steve Wigginton was "very offended by what he perceived as an extremely lenient sentence for this type of crime."

While Wigginton's reaction is understandable, do we want to let prosecutors try a defendant again whenever they think he got off too lightly the first time around? Isn't that sort of serial prosecution barred by the Fifth Amendment's Double Jeopardy Clause? Not, according to the Supreme Court, if it involves two different levels of government. According to the "dual sovereignty" doctrine, even though Ballinger pleaded guilty to the same crime (producing child pornography) both times, the fact that it was a state offense the first time and a federal offense the second time means the Double Jeopardy Clause does not apply. In fact, even if Ballinger had been acquitted in state court he still could have been convicted in federal court. Or if he had received a 30-year sentence in state court, he could have received another 30-year sentence in federal court.

It's not clear exactly what the excuse was for making this a federal case, but the requirements are not demanding. The federal child pornography ban includes images "produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce," so a video camera (or memory card) made outside Illinois would have been enough. The pretext for federalizing other crimes traditionally handled at the state level, such as "bias-motivated" assaults, is similarly slight, in effect giving federal prosecutors the power to second-guess state courts whenever they feel like it.

How big is this problem? Back in 1982, The Wall Street Journal reports, lawyers at the Justice Department counted about 3,000 federal criminal offenses. A 1998 study by the American Bar Association "concluded the number of crimes was by then likely much higher than 3,000, but didn't give a specific estimate." Neither count includes potentially criminal violations of federal regulations. "Estimates of the number of regulations range from 10,000 to 300,000," the Journal reports. In short, a law professor tells the paper, "There is no one in the United States over the age of 18 who cannot be indicted for some federal crime. That is not an exaggeration." One example cited by the Journal: two guys in Idaho who were hit with felony charges for attempting (unsuccessfully) to dig up arrowheads on what turned out to be federal land. 

More on the ever-expanding federal criminal code here, here, and here. More on child porn prosecutions here.

[Thanks to Mark Sletten and Richard Cowan for the links.]

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51 responses to “If at First You Don't Get a Prison Sentence, Try, Try Again

  1. Last Friday he was sentenced to 30 years in prison for the same crime, this time in federal court. A federal prosecutor explained that U.S. Attorney Steve Wigginton was “very offended by what he perceived as an extremely lenient sentence for this type of crime.”

    So far for Double Jeopardy.

    You may NOW kiss the Constitution goodbye, folk.

    1. So much for Double Jeopardy…

      Preview button – it’s right there. It’s right there.

    2. You may NOW kiss the Constitution goodbye

      Again?

      For sure this time?

    3. I agree that it shouldn’t be this way, but the exemption for different jurisdictional levels has been established law since the early 20th century (didn’t come up before then because it was considered only a restriction on federal law in the first place).

      Again, don’t much care for that, especially with a federal government that has laws and regulations galore.

    4. Well, at least there’s no triple jeopardy. I think. Maybe the UN?

    5. Uhh… Rodney King. You remember that the state level jury acquitted the police? Then after the rioting the feds stepped in charged/tried the police? Real fair trial, jury knowing in their own words, ‘they were supposed to fix the mistake the first jury made’. And knowing the riots which occurred after the first trial acquittal.

  2. Incidences like these make me hate having principles.

  3. In short, a law professor tells the paper, “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime. That is not an exaggeration.”

    Lenny: You saying you want to commit a crime, Homer?
    Homer: Maybe. But first I need to hear about some other crimes to get me fired up.
    Carl: You mean like the time you was running moonshine out of your basement?
    Barney: Or that telemarketing scam you pulled?
    Homer: Uh . . . like those, but involving you.
    Moe: Oh, you mean like the time Barney beat up George Bush?
    Homer: Barney!? That was me! And I’d do it again.
    Charlie: Why stop there, Homer? My militia has a secret plan to beat up all sorts of government officials. That’ll teach them to drag their feet on high definition TV!
    FBI Agent: You’re under arrest for conspiracy!
    Moe: How’d they finger Charlie? Somebody must have ratted him out.
    Homer: Oh, that’s ridiculous, Moe. End transmission.

    1. That’s really funny! Did you write it?

    2. You really do have the absolute worst trolls, Warty. You’ve taken the crown from me. Thank Jeebus.

      1. Maybe you were right. I’m not so sure I want a devoted following of idiots anymore.

        1. Too late, no backsies!

          And I’m always right. You should have realized that sooner.

          1. And I’m always right. You should have realized that sooner.

            Always right, huh? Well what about THIS little gem!

            “Episiarch|1.25.10 @ 5:04PM|#
            Of COURSE all Muslims are terrorists, and should be treated as such. Also, gays should have no rights, except for healthcare, which is a right that should be guaranteed to everyone, paid for by taxing the rich.

            reply to this”

            1. I was young, and reckless! I’ve changed!

              Wait, what?

              1. Dude, you were like a fascist back then. What changed you?

                1. You did, ProL. You did.

                  1. Yes, I have that effect on people. Once they know me, they turn away from tyranny, fearing what a Pro Libertate dictatorship might mean.

                  2. This could have been so much funnier if you had phrased it as, “From you, alright?!? I learned it by watching you!”

                    1. lol Ben

      2. Would you like ananopussy/oh no not this again/whatever the fuck he is today? I am about ready to get a restraining order on that franchise.

        1. Isn’t this one anonopussy?

          1. Aren’t they all?

        2. I am about ready to get a restraining order…

          Hold it right there while I get my violin.

  4. WTF? How the hell did he get 2.5 years probation for sexual abuse of a child?

    And double WTF, why do we allow dual sovereignty in the first place. Either try it at the state level or at the federal level, but it should be a no brainer you cannot try it twice without it being double jeopardy.

    Seriously, WTF!?

    1. We’re old and sometimes we get confused.

    2. If you don’t have dual sovereignty, the state (Feds) can nullify a Federal (state) law with impunity.

      Yeah, it might be cute if a state could establish a $1 fine for failing to pay federal taxes, and everybody in the state pled guilty and paid the fine instead of paying the taxes, but it would pretty obviously gut the Constitutional authority of the federal government to collect taxes.

      The real thing needs to be enforcing the fact that the Feds are only supposed to have limited, enumerated powers.

      1. “The real thing needs to be enforcing the fact that the Feds are only supposed to have limited, enumerated powers.”

        This is correct. If federal prosecutions were related to constitutionally enumerated powers, they would not replicate state action so much.

        The problem is that the feds have created for themselves a general police power that is constitutionally reserved to the states. Federal prosecution therefore regularly replicates state prosecution.

        I did have a case though that fell apart in federal court; then the state tried, and it fell apart there too. You should have been there to watch them swallow those two bites of the same sour apple.

        Hell hath no fury…

      2. How could a state try someone for failing to pay federal taxes. Isn’t that jurisdictional overstepping?

        1. Oh, you might have to mess around with the exact wording. “Misdemeanor willful refusal to pay a lawful debt”, say. Double jeopardy prevents a second trial for the same act, regardless of how many laws might apply, and states have general police power.

    3. 2.5 years for abuse is pretty harsh, imo.

      1. AHURR DA HUR HUR.

        Another Casey Anthony joke.
        My sides are busting over here.

  5. According to the “dual sovereignty” doctrine [a totally made-up concept,] even though Ballinger pleaded guilty to the same crime (producing child pornography) both times, the fact that it was a state offense the first time and a federal offense the second time means the Double Jeopardy Clause does not apply.

    If anybody had any doubts about the role the SCOTUS has had in undermining the rights of individuals, the above example of pure sophistry should convince you, if you’re being honest with yourself.

  6. The Constitution clearly sets itself up as law superior to state law. When it restricts courts, the executive, congress, or the states, it does so specifically. When it is unspecific, the Constitution needs to be seen as restricting ALL government in the US, regardless of 14th Amendment “incorporation.” When Congress says no person shall be tried twice for the same offense, or that nobody shall be forced to testify against himself, or is guaranteed benefit of counsel, that applies to ALL courts subordinate to the Federal government — ALL of them.

    Dual Sovereignty makes sense in some cases, but in this and similar cases, it makes no sense at all.

  7. Dual sovereignty wasn’t a threat to liberty back when the Interstate Commerce Clause was restricted to interstate commerce.

  8. So if somebody has to provide a confession as part of a plea bargain, can that confession be used against them in federal court?

    1. What part of “anything you say can and will be used against you” is unclear?

      Seriously, never talk to the cops.

  9. Don’t remember for sure but isn’t this exactly what happened to the cops who thumped Rodney King? I seem to remember hoping that they would get the book thrown at them and then thinking it was complete bullshit when they did get convicted on some kind of second run at it.

    1. No, the first time was a state law about beating on uppity negroes or something and the fed beef was the old favorite “violating his civil rights”. So they were tried on two different offenses at the different levels, which is another way they skate on the double jeopardy thing. If they want you in jail, you’ll end up there eventually.

      1. Why doesn’t anyone ever comment at your blog?

        1. You have a blog, T? I’m intrigued in your ideas and would like to subscribe.

          1. “by” your ideas

          2. Yes, I have a blog. I would guess nobody comments because I’ve been slack about posting for a while. Shit, last post was… over 2 months ago.

            1. Whoops, I was mocking that guy, thinking he had posted to the group and mis-threaded. Paging Emily Litella…

  10. I’m surprised how few comments there have been concerning the new direction the Commerce Clause is being stretched in. You can now apparently be charged with a federal crime whenever federal prosecutors suspect that you have committed what used to be a non-federal crime, if you allegedly used materials “produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce…”

    But we all know that such a limit is no limit at all, because even if you made your own weapons at home, you have affected interstate commerce already, because you didn’t buy one.

    1. What can’t the Commerce Clause do? I’d like to see a court opinion on that.

  11. Not, according to the Supreme Court

    That would be the same institution that said that it was just fine to imprison innocent people for their race, right?

    -jcr

  12. You spend all your money defending yourself with decent lawyers. Then when you win and have little or no money left the Feds come after you. Only one shot should be allowed against even the most evil person. Let the Feds and state discuss who gets to make it in each case.

  13. What can’t the Commerce Clause do? I’d like to see a court opinion on that.

    Well, it can’t be used to force people to purchase single-payer health insturance.[/snicker]

  14. You know what’s really depressing about this? Outside of Reason magazine, its readers and a few lawyer/civil rights groups, 98% of the country is just fine with this. In fact, upon reading this story, you can almost hear a collective “GOOD!” coming from the masses.

  15. This is a perfect example of American injustice! Whether or not the accused got off too leniently the first time should be moot. It is beyond ridiculous to think that what has happened here is justice. Double jeopardy should be sacrosanct and when the Supreme Court fools around with it, not only is justice not done it is not seen to be done. Everyone in the world can understand how despicable this judgement is.

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