[Ed. Note: This is a guest post by my brilliant Fault Lines colleague, Sam Bieler.]
New York’s legislators are about to make a terrible mistake. They are going to repeal New York’s double jeopardy protections to stick it to Donald Trump. Maybe they will succeed. The price of their success will be imperiling every other criminal defendant in New York long after Trump is gone.
Led by newly-elected Attorney General Letitia James, New York legislators are returning to a scheme the previous AG spearheaded in April 2018, to modify New York’s double jeopardy law. That law, CPL § 40.20, states:
A person may not be twice prosecuted for the same offense.
If the plan brewing in Albany is anything like the last one, then legislators intend to blast a hole in the side of this protection by modifying CPL § 40.30 with a new subsection (a) to say, in effect, “no double jeopardy defense if you get a pardon.” Don’t worry, they’ve narrowed it this time around it so it only applies if you’re “connected” to the president, whatever the hell that will mean. This is a horrifically bad idea that will water down protections for criminal defendants both directly and indirectly.
CPL § 40.20 fixes, at least in New York, one of the great idiotic injustices of American criminal law: the “dual sovereigns” doctrine. Dual sovereigns is the idea that the federal government and state government are separate regimes with the right to separately enforce their own laws. This means that, in United States v. Lanza for example, a bootlegger could first be prosecuted under federal law for making and selling booze during Prohibition. Then Washington state could prosecute him for the exact same thing based on the exact same facts.
Doesn’t that mean that one is “subject for the same offense to be twice put in jeopardy of life or limb”? Doesn’t the Fifth Amendment have something to say about that? Nope. Dual sovereigns. Maybe there is some difference between being prosecuted by the feds or the states. Whatever it is though, it probably doesn’t feel very meaningful to people rotting in prison after the government gets a do-over or chance to pile on new charges.
For reasons I can only attribute to an occasionally merciful God, New York does not tolerate this nonsense. People v. Bokun has a good history of this – New York’s courts and legislators have been saying no to dual sovereignty since 1829. Bokun goes on to say that the doctrine is so firmly entrenched that only “a stated exception” by the legislature could support such a prosecution. AG James wants just this exception for pardons.
Presidential pardons have a unique, underappreciated place in our constitutional constellation. It is a power unique for being exclusively capable of reducing the oppressiveness of criminal law. The pardon power goes only in one direction – towards a less punitive system that puts fewer people in cages. Indeed, now that the Court has basically taken the Eighth Amendment out behind the woodshed with a .22, the pardon power stands virtually alone among constitutional safeguards against harsh penalties.
Now, the New York legislature wants to knock that down. For what? Another shot to prosecute Manafort? Seeing Kushner in prison? In a few years and a few election cycles, we will have forgotten all about them, but CPL §40.30(a) will still be there, ready for the day the president wants to show mercy and the governor doesn’t. Are you sure the governor of the state that gave the world Eliot Spitzer and Rudy Giuliani will use this power responsibly?
Even if the defense bar gets lucky (statistically, it has to happen at some point doesn’t it?) and only a few defendants are hurt by this change, the entire proposal taints how defendants’ rights are fought for and discussed. Look at how CPL § 40.20 is being described. It’s not a vital fix to a broken doctrine anymore, it’s a “loophole.” You know, just like those damn drug dealers getting off on “technicalities.” (It’s the Fourth Amendment. The technicality is the Fourth Amendment.)
This is how you end up with Philly DAs seizing and selling neighborhoods’ worth of houses or sex offender registry regime so brutal that juvenile offenders would literally rather kill themselves than live under it. One at a time, general defendant protections are eroded or criminal liability is broadened to prevent one-off, high-profile incidents. Left in the dark, these exceptions grow and metastasize until we’re left with the system we have today.
This is what AG James and the New York legislature are doing right now. CPL § 40.20 is not a loophole. It is not a procedural trick or an accidental flaw. It is a law expressly put into place to protect every New Yorker. It promises that, no matter what, the state does not get a do-over when it tries to strip you of your liberty.
Maybe you think the charges against Manafort and any future Trump prosecutions are justified. Maybe you think they are bullshit. But whatever you think about the merits of charges against these defendants, this change in the criminal law will weaken protections for all defendants, now and into the future. If this is the cost to pick off a few Trumpers, the price is too high.