Jim Stillman
Randy InmanPractical Federalism, Dog Fights, Pot and Essential Justice
August 21st 2007 21:08
Last June, my regular combatant, SL, asked in her always excellent site, The Political Brief, about the concept of double jeopardy in United States’ law. She raised the issues surrounding the acquittal of O. J. Simpson followed by the imposition of a civil judgment predicated on the same facts, those surrounding the death of his former wife and one of her friends.
After explaining why a criminal proceeding would be no bar to a subsequent civil damage claim, I then briefly discussed issues arising from the concept of federalism and dual-sovereignty. Under these policies, the same set of facts is, increasingly, made a federal crime in addition to the traditional power of the states to enforce its police powers.
I strongly object to this practice of dual crimes, dual enforcement policies and unfair results. In this post, I will explain why.
For example, dog fighting and Michael Vick. Mr. Vick has been indicted by the U.S Attorney accused of the most barbaric, disgusting, inhumane, vile (I’ve run out of adjectives without obscenities) acts to animals. I wish him no peace, no sanctuary. Yet, even the most disgusting, inhumane, vile scoundrel deserves to be treated with justice under the law.
The Federal statute which was the basis of Michael Vick’s indictment is Title 7, § 2156, United States Code:
The Commonwealth of Virginia has its own statute on dog fighting. The Virginia Code, at § 3.1-796.124:
“No person shall knowingly do any of the following:
“1. Promote, engage in, or be employed in the fighting of dogs for amusement, sport or gain;
“2. Wager money or anything of value on the result of such fighting;
“3. Receive money or anything of value for the admission of another person to a place for dog fighting;
“4. Possess, own, train, transport, or sell any dog with the intent that such dog engage in an exhibition of fighting with another dog; or
“5. Permit any act described in subdivisions 1 through 4 of this subsection on any premises under his charge or control, or aid or abet any such act.”
The penalty for violation of the Virginia law is one to five years in prison, fines and forfeitures.
Basically, Federalism in the United States relates to the relationship and inter-play between the national government and the governments of the several states. Unlike many nations, the United States has a governmental structure created by the Constitution which sets forth, “enumerated” or “expressed” powers of the national central government, primarily dealing with nation-wide issues such as foreign policy and declaring war, interstate and international commerce, levying taxes, food and drug safety. All other powers and duties are reserved for the individual states. The Federal government has the power to pass any law "necessary and proper" for the execution of its express powers. Powers that the Constitution does not delegate to the federal government or forbid to the states—the reserved powers—are reserved to the people or the states. In law school, the matters left to the states are said to include “police powers”, the vast regulation and enforcement of probate laws, traffic laws, most criminal offenses, regulation of businesses and professions with a primarily local nexus, in short much of the every-day stuff with which the average person deals.
To demonstrate the philosophy, contrast the relationship in Canada between the federal and provincial governments. Under §§ 91 and 92 of the Constitution Act, the powers of the federal-national government and that of the provinces, respectively, are detailed. Matters not fully or adequately resolved, any residual powers, are retained by the former, the national government.
During the years following the adoption of the U.S. Constitution, the assertion of claims of authority by the Federal and states’ governments have been the focus of much debate and not a little heat! The relative dominance of Federal or state authority has ebbed and flowed, sometimes favoring one side and sometimes the other. At one time, it was easier to forecast the winner; it is much more difficult now, mostly because the traditional roles of those with a political point of view have changed.
Traditional conservatives have usually landed on the side of states’ rights, a federal government that is limited in terms of raising taxes and interfering with the aims of the localities. The traditional liberal-progressive, again usually, was far more inclined to allow the national government to dominate the states.
I find myself in the traditional Conservatives’ corner, even as they have left the scene. What is at stake is far more important than Michael Vick’s fate. Unfortunately, the case is lost in the matrix of animal cruelty, race, and all of the other things that come when celebrities – and especially black celebrities – are charged with crimes.
Yet, what is unsaid in this case perhaps is the most important thing – if one holds, as do many Conservatives, that a true threat to our liberties is an out-of-control federal government. To put it another way, the real story as far as I am concerned is that we are seeing another sorry chapter in the saga of abuses by federal criminal authorities.
Is this all the drivel of lawyers and law students? Place the debate in terms of current affairs and the news; it will be clear that this isn’t an academic exercise. Ask the men and women in federal prison for possessing small amounts of marijuana, possession expressly permitted under the laws of their state. Ask Michael Vick.
As I have suggested, there has been the inclination of the Federal government to create law which makes certain acts subject to Federal criminal statues simply because of an insignificant connection with interstate commerce. For instance, Mr. Vick’s dog fighting venture took place in Surry County, Virginia. At first glance, it would seem that the Commonwealth would prosecute this clear violation of the Virginia statute. Indeed, an article in the Atlanta Journal-Constitution quoted the Virginia Attorney General, Gerald Poindexter, “yes, indeed, we will prosecute" Vick and others on possible animal cruelty and dog fighting charges. Poindexter said he would probably submit his case to a grand jury that is scheduled to convene Sept. 25. He added that he has not determined which charges he would file but said he would aggressively prosecute based on previously acquired evidence and some of the evidence presented in the federal case. "The execution of these animals — and the manner in which they were executed — is startlingly offensive and demanding of prosecution," Poindexter said.
The status of the case as of today is that Michael Vick has entered a plea of guilty to the Federal charges, may well be imprisoned on those charges. Reports this morning is that there have been no discussions of prosecution by Virginia and he faces that next.
So what? Why does it make a difference if an offense may be prosecuted only by the state, or can also be prosecuted by the feds as well?
The answer is that there are some real costs to having federal jurisdiction sweep too broadly. One is that U.S. Attorneys' Offices may be distracted from true federal interests by the temptation to take over some of the caseloads of local prosecutors.
Another is that it gives the U.S. Attorney General too much power if he or she can initiate prosecutions of what are, in essence, non-federal crimes. (Indeed, in a worst case scenario, that power could be used politically to transform a state offense that would normally carry little time, into a federal offense that carries more.)
Another is that defendants will be open to the risk of successive prosecutions by the states and by the federal government. Unfortunately, the Supreme Court's interpretation of the Fifth Amendment's Double Jeopardy Clause allows just such successive prosecutions. In the landmark case, Bartkus v Illinois (1959), the unlucky Mr. Bartkus was tried, and acquitted, in the Federal District Court for the Northern District of Illinois on December 18, 1953, for robbery of a federally insured savings and loan association. Three weeks later, an Illinois grand jury indicted Bartkus. The facts recited in the Illinois indictment were substantially identical to those contained in the prior federal indictment. Bartkus was tried and convicted in the Criminal Court of Cook County and was sentenced to life imprisonment under the Illinois Habitual Criminal Statute. The Supreme Court found nothing wrong in this case, acknowledging that FBI agents involved in the Federal prosecution shared information with and assisted, and even directed, the state authorities.
In another series of cases, men and women have been convicted of possession of medical marijuana by a Federal court, notwithstanding such possession and use was expressly permitted by the state in which they lived. In a later post, I will show how the Federal law treating possession of even small amounts of medical-use marijuana has placed physicians and patients in jeopardy of going to jail.
The loss of states’ rights to the Federal government has many aspects, too many to deal with here. As an example, marriage and divorce law has traditionally been the province of the states; the Bush administration pushed through the Defense of Marriage Act barring civil unions or marriage by homosexuals. Whether one agrees or disagrees, it should be a matter for the states. I am totally “pro choice” as to abortion but find Roe v Wade an improper infringement of states’ rights.
For now, let me leave it here. The bottom line is that the Federal government has no place in prosecution that which are truly state crimes. There is no rational reason for the feds to become involved in intra-state criminal activities.
After explaining why a criminal proceeding would be no bar to a subsequent civil damage claim, I then briefly discussed issues arising from the concept of federalism and dual-sovereignty. Under these policies, the same set of facts is, increasingly, made a federal crime in addition to the traditional power of the states to enforce its police powers.
I strongly object to this practice of dual crimes, dual enforcement policies and unfair results. In this post, I will explain why.
For example, dog fighting and Michael Vick. Mr. Vick has been indicted by the U.S Attorney accused of the most barbaric, disgusting, inhumane, vile (I’ve run out of adjectives without obscenities) acts to animals. I wish him no peace, no sanctuary. Yet, even the most disgusting, inhumane, vile scoundrel deserves to be treated with justice under the law.
The Federal statute which was the basis of Michael Vick’s indictment is Title 7, § 2156, United States Code:
“It shall be unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture, if any animal in the venture was moved in interstate or foreign commerce.”
“For purposes of this section -(1) the term "animal fighting venture" means any event which involves a fight between at least two animals and is conducted for purposes of sport, wagering, or entertainment …” “Interstate commerce”, the basis for Federal jurisdiction, includes a telephone call or e-mail message.”
“For purposes of this section -(1) the term "animal fighting venture" means any event which involves a fight between at least two animals and is conducted for purposes of sport, wagering, or entertainment …” “Interstate commerce”, the basis for Federal jurisdiction, includes a telephone call or e-mail message.”
“No person shall knowingly do any of the following:
“1. Promote, engage in, or be employed in the fighting of dogs for amusement, sport or gain;
“2. Wager money or anything of value on the result of such fighting;
“3. Receive money or anything of value for the admission of another person to a place for dog fighting;
“4. Possess, own, train, transport, or sell any dog with the intent that such dog engage in an exhibition of fighting with another dog; or
“5. Permit any act described in subdivisions 1 through 4 of this subsection on any premises under his charge or control, or aid or abet any such act.”
The penalty for violation of the Virginia law is one to five years in prison, fines and forfeitures.
Basically, Federalism in the United States relates to the relationship and inter-play between the national government and the governments of the several states. Unlike many nations, the United States has a governmental structure created by the Constitution which sets forth, “enumerated” or “expressed” powers of the national central government, primarily dealing with nation-wide issues such as foreign policy and declaring war, interstate and international commerce, levying taxes, food and drug safety. All other powers and duties are reserved for the individual states. The Federal government has the power to pass any law "necessary and proper" for the execution of its express powers. Powers that the Constitution does not delegate to the federal government or forbid to the states—the reserved powers—are reserved to the people or the states. In law school, the matters left to the states are said to include “police powers”, the vast regulation and enforcement of probate laws, traffic laws, most criminal offenses, regulation of businesses and professions with a primarily local nexus, in short much of the every-day stuff with which the average person deals.
To demonstrate the philosophy, contrast the relationship in Canada between the federal and provincial governments. Under §§ 91 and 92 of the Constitution Act, the powers of the federal-national government and that of the provinces, respectively, are detailed. Matters not fully or adequately resolved, any residual powers, are retained by the former, the national government.
During the years following the adoption of the U.S. Constitution, the assertion of claims of authority by the Federal and states’ governments have been the focus of much debate and not a little heat! The relative dominance of Federal or state authority has ebbed and flowed, sometimes favoring one side and sometimes the other. At one time, it was easier to forecast the winner; it is much more difficult now, mostly because the traditional roles of those with a political point of view have changed.
Traditional conservatives have usually landed on the side of states’ rights, a federal government that is limited in terms of raising taxes and interfering with the aims of the localities. The traditional liberal-progressive, again usually, was far more inclined to allow the national government to dominate the states.
I find myself in the traditional Conservatives’ corner, even as they have left the scene. What is at stake is far more important than Michael Vick’s fate. Unfortunately, the case is lost in the matrix of animal cruelty, race, and all of the other things that come when celebrities – and especially black celebrities – are charged with crimes.
Yet, what is unsaid in this case perhaps is the most important thing – if one holds, as do many Conservatives, that a true threat to our liberties is an out-of-control federal government. To put it another way, the real story as far as I am concerned is that we are seeing another sorry chapter in the saga of abuses by federal criminal authorities.
Is this all the drivel of lawyers and law students? Place the debate in terms of current affairs and the news; it will be clear that this isn’t an academic exercise. Ask the men and women in federal prison for possessing small amounts of marijuana, possession expressly permitted under the laws of their state. Ask Michael Vick.
As I have suggested, there has been the inclination of the Federal government to create law which makes certain acts subject to Federal criminal statues simply because of an insignificant connection with interstate commerce. For instance, Mr. Vick’s dog fighting venture took place in Surry County, Virginia. At first glance, it would seem that the Commonwealth would prosecute this clear violation of the Virginia statute. Indeed, an article in the Atlanta Journal-Constitution quoted the Virginia Attorney General, Gerald Poindexter, “yes, indeed, we will prosecute" Vick and others on possible animal cruelty and dog fighting charges. Poindexter said he would probably submit his case to a grand jury that is scheduled to convene Sept. 25. He added that he has not determined which charges he would file but said he would aggressively prosecute based on previously acquired evidence and some of the evidence presented in the federal case. "The execution of these animals — and the manner in which they were executed — is startlingly offensive and demanding of prosecution," Poindexter said.
The status of the case as of today is that Michael Vick has entered a plea of guilty to the Federal charges, may well be imprisoned on those charges. Reports this morning is that there have been no discussions of prosecution by Virginia and he faces that next.
So what? Why does it make a difference if an offense may be prosecuted only by the state, or can also be prosecuted by the feds as well?
The answer is that there are some real costs to having federal jurisdiction sweep too broadly. One is that U.S. Attorneys' Offices may be distracted from true federal interests by the temptation to take over some of the caseloads of local prosecutors.
Another is that it gives the U.S. Attorney General too much power if he or she can initiate prosecutions of what are, in essence, non-federal crimes. (Indeed, in a worst case scenario, that power could be used politically to transform a state offense that would normally carry little time, into a federal offense that carries more.)
Another is that defendants will be open to the risk of successive prosecutions by the states and by the federal government. Unfortunately, the Supreme Court's interpretation of the Fifth Amendment's Double Jeopardy Clause allows just such successive prosecutions. In the landmark case, Bartkus v Illinois (1959), the unlucky Mr. Bartkus was tried, and acquitted, in the Federal District Court for the Northern District of Illinois on December 18, 1953, for robbery of a federally insured savings and loan association. Three weeks later, an Illinois grand jury indicted Bartkus. The facts recited in the Illinois indictment were substantially identical to those contained in the prior federal indictment. Bartkus was tried and convicted in the Criminal Court of Cook County and was sentenced to life imprisonment under the Illinois Habitual Criminal Statute. The Supreme Court found nothing wrong in this case, acknowledging that FBI agents involved in the Federal prosecution shared information with and assisted, and even directed, the state authorities.
In another series of cases, men and women have been convicted of possession of medical marijuana by a Federal court, notwithstanding such possession and use was expressly permitted by the state in which they lived. In a later post, I will show how the Federal law treating possession of even small amounts of medical-use marijuana has placed physicians and patients in jeopardy of going to jail.
The loss of states’ rights to the Federal government has many aspects, too many to deal with here. As an example, marriage and divorce law has traditionally been the province of the states; the Bush administration pushed through the Defense of Marriage Act barring civil unions or marriage by homosexuals. Whether one agrees or disagrees, it should be a matter for the states. I am totally “pro choice” as to abortion but find Roe v Wade an improper infringement of states’ rights.
For now, let me leave it here. The bottom line is that the Federal government has no place in prosecution that which are truly state crimes. There is no rational reason for the feds to become involved in intra-state criminal activities.
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