Punishment After Acquittal

By David Solan, Prisoner of War in America

Criminal jurisprudence in America, in theory, revolves around the right of an accused to a jury trial. This right not only permeates the many safeguards controlling how a criminal case is presented to a jury, but it is also enshrined twice in our Constitution:

Article III, g 2, clause 3, and the Sixth Amendment (and it is also inferred in the Seventh Amendment).

While many would admit that criminal trials now in America are far from the ideal, most believe that at least one last dream remains rock-solid: if you are ever accused of a crime and your jury returns a verdict of not guilty, then the trial, and the jeopardy, and the sentencing, and, above all, the punishment, are all over for you. As the law used to say, you may "go hence sine die", which meant that you were free to go without any day scheduled for your reappearance before the court. It is simply no longer true.

In America's current madness to prosecute the war on crime, the latest victim has become the principle of no criminal punishment after acquittal. The Supreme Court of the United States, in a summary 7-1-1 decision, handed down this ruling on January 6, 1997 [U. S. v. Watts, 519 U.S. 148, 136 L Ed 2d 554, 117 S Ct 633 (1997)], stating that a defendant acquitted by a jury of a certain charge at a fair and legal trial could nevertheless be subsequently punished on the basis of the crime associated with that charge by a judge at a sentencing hearing involving a completely separate charge at any time in the future. The judge, at this second bite of the apple against the defendant, is, according to the Supreme Court, only "using acquitted conduct in sentencing", but not "sentencing for acquitted conduct", though, of course, in practice, there exists no difference between the two phrases.

Federal courts have used such word play since at least 1986, and this Watts decision was the final nail in the coffin of trial by jury in America. Right now, thousands of souls are languishing in prison in the U.S. serving sentences partially determined on the basis of crimes of which they were clearly, consistently, and unanimously acquitted by a jury of their peers.

How do the legal authorities justify this? The jury found the defendant not guilty of the first crime only after it had determined that the government had failed at trial to meet its beyond-a-reasonable-doubt burden of proof. The judge at sentencing for the second offense, merely determins that the government, for that first crime, did not fail to meet a lower preponderance-of-the-evidence burden of proof. This allows the judge to sentence the defendant on the offense he was found not guilty. Simple, isn't it?

What did the authorities forget in this reasoning? That the Constitution is not a document forbidding logical conflicts in government, but rather one making allowances for such illogicality in our leaders by forbidding too much power in government. Our founding fathers understood that throughout recorded history the main enemy of human rights has never been private criminals, but rather public governments, and the officials they appoint. They had the foresight to know it would be preferable to have trial by jury rather than trial by government-appointed judge, because it was the judges who had to be checked.

Punishment after acquittal represents a constitutional travesty. The most obvious conflict is with the Double Jeopardy Clause of the Fifth Amendment, which forbids putting a person accused of criminal conduct twice in jeopardy for the same offense. "Jeopardy" means being in harm's way. So if the Fifth Amendment says you cannot be put in harm's way again after a trial followed by an acquittal, then, with greater logical force, it certainly also says that you cannot actually be harmed after an acquittal as well.

The rule against placing an individual twice in jeopardy for an alleged offense goes back at least to ancient Rome, which had the saying: "Nemo debet bis vexari pro una et eadem causa" or "No man ought to be twice troubled for one and the same cause." This was one of the few legal rights recognized by the Christian fathers throughout the Dark and Middle Ages, where a Church canon from the ninth century stated: "Not even God judges twice for the same act." Maybe God doesn't, but federal judges in America can and do; and, in allowing them to do so, the Supreme Court has taken America into a blackness which makes even the Dark Ages look sunlit by comparison.

The Watts decision of the Supreme Court is an open invitation to a police state in America. It does not deserve the respect of any judge who believes in the oath he took to support the Constitution, and needs to be overturned as urgently as the Dred Scott decision of that same court needed to be overturned in 1857. The private crime rate may be going down, but the public crime rate is going through the roof. The highest court in the land should not sanction the crime wave perpetrated by the government against those judged innocent under the law.