In My Own Words: Double jeopardy

By: RABBI RACHEL ESSERMAN, EXECUTIVE EDITOR

Did you ever experience a clash between your ethical ideals and your political ones? This occurred to me after reading the recent U.S. Supreme Court ruling on double jeopardy. The ruling is based on a sentence found in the fifth amendment: “... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The basic idea is a person cannot be tried more than once for the same crime, unless the jury is deadlocked. The Supreme Court ruling now allows for a person to be tried for the same crime in state court and in federal court, meaning they can receive two sentences for the same crime.
On an ethical level, I disagree with the ruling. The previous understanding of the Constitution prevents a law enforcement official from arresting and bringing someone to trial for the same crime numerous times. It prevents continual harassment and additional criminal court cases against someone who has stood trial and been found innocent. What about if new evidence is found that might convict the person? That is the risk we take to prevent someone from being forced to defend themselves in court two, three, four or more times because someone just “knows” the person is guilty – even when there is not enough proof to convict.
So, why do my political convictions make this ruling appealing? As regular readers of this column know, I am not particularly fond of President Donald Trump. You might wonder what this ruling has to do with him, but legal commentators have noted that the ruling could affect Paul Manafort, the president’s former campaign manager, who is being tried in federal and state court for similar offences. Manafort has been sentenced to seven years in federal prison for tax and banking fraud crimes. A state court is planning on pursuing a similar case, something the commentators say would most likely not have been permitted under the previous understanding of double jeopardy. 
President Trump has mentioned pardoning those in his administration who have been accused or convicted of a crime. (He’s even spoken of pardoning himself if he is ever accused of a crime.) However, a president can only pardon someone who has been tried in a federal court. He has no power to pardon someone who is sentenced in a state court. That means that, while he could pardon Manfort and other members of his campaign or administration who were convicted in a federal court, he could not do so for those convicted in a state court. They would actually serve the sentence for their crime, something of which I do approve.
Of course, the larger problem is that we have a president who has said he doesn’t care if his people break laws. In fact, he’s publicly spoken about breaking the law himself if offered information from a foreign government about someone running against him for president. (He did backtrack some on that later, but his original answer to the question was telling and is probably how he truly feels.) It makes me uncomfortable to think that people who break laws may be freed because their crime was done to help someone get elected to office. It also makes me uncomfortable to see people tried twice for the same crime. The fact that decision came from an ostensibly conservative court strikes me as ironic in that it may backfire on those who helped create that court. Unfortunately, this new ruling will affect more than just those politicians and the people who work for them.