This article appeared in National Review (Online) on August 7, 2009.
Welcome to a new age of double jeopardy. The hate-crime statute just passed by Congress expands the potential for federal prosecutions to chilling new levels, and even creates the possibility of retrials for crimes that have already been ruled on by state courts. In one fell swoop, lawmakers have virtually ensured legal proceedings that obviously violate the Bill of Rights and this, for some reason, is being widely hailed as a triumph of justice.
The lack of rigorous debate over this policy is ominous. In the Senate, the hate-crime legislation was not even adopted as a stand-alone measure, but as an add-on to another bill. This relative stealth aside, the flourish of the president's signature pen will radically redraw the boundaries between state and federal jurisprudence.
States and the federal government are considered separate sovereigns. If someone has broken both state and federal laws, he can have a day in court in both systems. A counterfeiter can be charged for his funny money in federal court, for instance, and also face murder prosecution by a state if he has moved to eliminate his competition. A trial by a state does not rule out federal prosecution for the same crime, and this does threaten to thwart the Fifth Amendment's demand that no person suffer double jeopardy. In practice, however, this hasn't happened too often; until now, limited federal jurisdiction meant that Uncle Sam usually didn't have the ability to try or retry a state defendant. READ THE REST @ CATO.ORG
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