Two Courtrooms At Once

At Fault Lines, Cristian Farias makes a persuasive case for Attorney General Loretta Lynch’s jumping on the prosecution of Dylann Roof for the slaughter at the Emanuel A.M.E. Church in Charleston.  The distinguishing feature is that the feds, usually waiting in the wings for the outcome of state prosecution, were in from the start.

What’s striking about DOJ’s involvement this time is its seeming impatience. If in the Martin and Brown cases federal prosecutors worked quietly and did not interfere with the state cases as they ran their course, here they came out with guns blazing. And reasonably, one could say that Lynch’s move to impanel a grand jury and seek charges a mere two weeks after South Carolina did the same is an affront to a state’s prerogative to seek justice in its own terms. Federalism run amok.

And indeed, Jonathan Blanks at Cato made that exact point:

The Department of Justice should be more judicious with its funds and resources. The opportunity costs of a duplicative prosecution takes resources away from crimes that fall more appropriately in the federal purview, such as interstate criminal enterprises and government corruption. Today’s indictment is federal meddling in a case the state already has under control.

While concern over federal money and resources is endearing, it’s not really that big a deal. They have prosecutors and judges on salary, and they get paid either way. But even Jonathan leaves open the back end, should the state murder somehow fail.

Even if some wholly unlikely chain of events leads to Roof’s acquittal, the DOJ could push forward with their prosecution at that time. But, in reality, that isn’t going to happen and no one at DOJ thinks it will. By not waiting for the outcome of the state’s prosecution, the timing strongly suggests the DOJ wants to assume jurisdiction for Roof’s prosecution. Thus, this indictment is an unabashed political move.

Cristian takes issue with Jonathan’s calling this an “unabashed political move,” accepting the propositionthat the feds play a meaningful role in the eradication of racially motivated crime.

“The parishioners had Bibles,” Lynch said when announcing the charges. “Dylann Roof has his .45-caliber Glock pistol and eight magazines loaded with hollow-point bullets.”

But Roof is also alleged to have had the intent to kill, and to kill black people specifically. South Carolina, perhaps as a result of its own disgraceful past, lacks an analog law to punish such blatant acts of racism, so the federal government has historically filled in the statutory gaps — post-Reconstruction, during the Civil Rights era, and in the Obama years.

This no doubt true, but as Cristian writes, it exists to fill “the statutory gaps.”  Neither Cristian nor Jonathan have given sufficient consideration to the gaps.  Gaps are not an opportunity to absolutely guarantee conviction of someone we truly despise.  Gaps are the holes where state law fails to cover a wrong or a state has someone neglected to perform a duty the law commands.

There are no gaps here.

That there are overlapping crimes, both in state and between separate sovereigns, is hardly surprising.  Crimes used to focus on the physical act that caused harm, but have since come to address the thought behind the crime, as people embraced the idea that a murder alone wasn’t bad enough, if it was a murder with a particularly bad motivation.

One of the laws under which Roof was charged, the Matthew Shepard Act of 2009, is notable for its passage under the Thirteenth Amendment’s “authority to eradicate badges and incidents of slavery,” which effectively eliminates the need to prove the classic jurisdictional “hook” to obtain a conviction. In other words, DOJ need only prove that the act of violence resulting in death was committed on account of race.

What falls by the wayside in the zeal to assure conviction, or as Cristian says, address a crime that “brings out the prosecutor in all of us,” is the double jeopardy aspect of multiple sovereigns prosecuting a person for the same conduct under different laws, different theories, different emotional outrages.

It does not violate the double jeopardy clause per se, but it does accomplish something that should offend a systemic view of justice: if a person is convicted of the crime once, it’s wrong to convict him again.  If he is acquitted, it’s wrong to prosecute him again until he’s convicted.

As emotions remain raw when it comes to Dylann Roof, an alternative example may make the point a bit easier.  Middlesex District Attorney Marian Ryan will prosecute Dzhokhar Tsarnaev for the murder of MIT police officer Sean Collier, which would be fine but for the fact that he’s already been sentenced to death following federal prosecution for the Boston Marathon bombing.

So that’s Ryan’s point? Does she want to lock up the dead body for the rest of its natural life?  Criminal prosecution has historically been a state prerogative, and the post-reconstruction efforts to get the feds involved grew out of the state’s failure to do its job when it came to racially motivated crimes against blacks.

There was, and is, a justification for the existence of overlapping jurisdiction, but only to fill the gap.  Not to guarantee conviction of people we really hate by allowing sovereigns to prosecute until the bad dude’s finally convicted, and not to gain cheap political adoration by dumping on a dead man walking.

Cristian is right that there is a prosecutor in all of us, and if you disagree, you just haven’t met him yet.  He’s there. But the system doesn’t exist to vindicate out deepest emotional anger and need for extreme retribution, but to achieve its legitimate purposes.

Even when we hate the thoughts running through a criminals’ mind as he kills, it’s enough that he’s convicted for the killing.  This yearning for death plus a kick in the head, or life plus cancer for people we really, really hate must end.  If he can’t be killed twice, he doesn’t belong in two courtrooms at once.

5 thoughts on “Two Courtrooms At Once

  1. Patrick Maupin

    We could bring ’em back to life after the first killing. Both sentences should be carried out with a barely-lethal drug cocktail that kills via excruciating pain, eventually stopping the heart, which can be immediately restarted by a doctor who tells himself that the appeals are not done and the prisoner might not be killed again. Much as it pains my own proud Texan internal death-seeking prosecutor to admit this, Oklahoma leads the way in research in this exciting new area of practical revenge jurisprudence.

  2. dm

    Perhaps all the talk in the press about Roof’s actions being that of a “domestic terrorist” have spurred Lynch and the DOJ to prematurely flex federal prosecutorial discretion. Or, rather, if state prosecutors are willing to take a plea in exchange for no death penalty, and the DOJ is willing to do likewise, might there be some “collusion” to pressure Roof to quickly “plea out?”
    The horrendous nature of the crime aside, this case seems to offer something for just about everybody.

  3. bmaz

    To my eye, what the DOJ is doing on Roof is nothing but craven glory whoring. There is a rock solid state capital murder case with nine counts. The cops and the prosecution acted swiftly and, by all appearance professionally and appropriately, so for. There is no need for cheap attention seeking DOJ bigfoot here.

    Jon Blanks is exactly right.

    1. SHG Post author

      You and Jon look at the politics rather than the doctrine. Right or not, politics changes, so if we’re a nation of law and not men, then the political motivation is irrelevant. If it’s wrong, it’s wrong regardless of politics.

      Or maybe I’m just too lawyerish.

      1. Patrick Maupin

        There’s two kinds of too lawyerish. Your kind says there shouldn’t generally be two bites at the apple. The Machivellian-prosecutor kind says not to bring the second action until we figured out what went wrong in the first action.

        Too, there’s too many kinds of too political, two of which you have illustrated: hurry up and participate now; and participate after it’s a slam-dunk.

        District Attorney Andrew Wylie joins Marian Ryan in that latter category, with his prosecution of David Sweat. When questioned about prosecuting someone already serving a life sentence, Wylie’s response was essentially “Wouldn’t you want him convicted if he raped your daughter while he was out?”

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