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It raises all our ire when a villain is denied punishment on a technicality, or worse, is acquitted on their slithering skills. There is some clamor that the double jeopardy clause of the US Constitution’s Fifth Amendment is outdated; that with our newfangled means of divining evidence, should we acquit a man of a crime, and profound new evidence is found, the state should get another bite at trying to convict him.
There is a case in Britain testing this notion right now. Billy Dunlop has faced two juries as the Crown Prosecution Service has tried to convict him for murdering a pizza delivery girl in 1989. Neither jury could reach a verdict, and he was acquitted in 1991. Now the CPS claims to have uncovered “New and compelling evidence”, and wants another go at Billy in the court of appeals.
Personally, I loathe the idea of murder, but at the same time I disdain the possibility of a government hounding a person forever based on suspicion and/or a grudge.
The history of Double Jeopardy is a long and sordid one. It’s introduction in American law by James Madison was explained as “No person shall be subject … to more than one punishment or trial for the same offense.”, but was altered to the phrasing in the Constitution before going into effect. It was a principal deemed important enough to included in the Constitution because the people who were drafting it were accustomed to seeing lawmen setting sites on a man and pursuing him until they got a conviction. They had nothing to loose in such a relentless pursuit, and given enough time and practice, all defenses must falter when opposed by an unstopping force. The goal of the clause in the Fifth Amendment was to take the teeth out of the raging tiger, but still allow for the state—if it could make a convincing case—to still get its man. With this in place, now the state was hobbled with the need to find compelling evidence before prosecution began; with only one shot, it had better be a good one.
Because of this, many a guilty man has escaped punishment. Criminals thrive on the indulgence of society’s understanding, but on the other hand, it is better to let ten guilty persons go free than convict a single innocent one … isn’t it? Mistakes are made, it’s unavoidable, but when the innocent are convicted and punished, doesn’t that make the state the criminal?
The First Amendment is under constant barrage. The Second has been battered and bloodied. The Fourth is constantly being searched for loopholes, and nearly raped by the Patriot Act. And the Sixth is locked up and still awaiting arraignment. Let’s not lose the Fifth Amendment too.
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