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


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.]