Archive for June 2012

The 5th Amendment – Part 1

The authors and framers of the United States Constitution did a fine job in creating such a lasting document. But in the 5th Amendment, either through interpretation or criminal negligent – the phrase “double jeopardy” has been nothing short of disaster when it comes to its application – particularly as it relates to the less affluent within our society.

Judges across the land have done as good a job as possible when applying one of two elements needed to reach a fair and balanced decision when it comes to the least fortunate, always susceptible members of our society. And again, it’s good to point out that one of the reasons for such a strong outcome on cases with the 5th Amendment application is because there is no “judicial discretion” when it comes to the law itself. The restriction on both our federal and local law enforcement agencies is pretty steep and leaves no doubt as to the consequences of any attempt to violate such stipulation.

Looking back on all the laws within our Criminal Justice apparatus, the most enduring of the laws are the laws which does not allow for judicial discretion in the areas of its application. Since the Constitution itself seems incorruptible for the last two hundred plus years, I am almost 100% sure that it will be there until the end of time unless otherwise scrapped due to some fanatical takeover of our governmental structure as we know it now. God forbid!

We know that judges come and judges go. Some are elected while some others are appointed. As a result, judges can be influenced by ideology and in some cases, can be bought by various means while others can be bought for a price. Whenever rulings depend on judicial discretion, the full meaning of the law and its application can ultimately be lost and or corrupted.

I said earlier that one element of the law in the 5th Amendment is rock solid and its result un-impeachable. That is the first clause of the amendment which prohibits the prosecution of a person twice for the same offense post-conviction or acquittal on the same charges. In other words, one can only be prosecuted once for the same offense and if convicted, can only be sentenced once not multiple sentences.

A perfect example that most people can easily relate to is the Orenthal James [a.k.a O.J] Simpson’s case. Yes, the government was unhappy with the outcome when O.J Simpson was acquitted. With its unlimited financial resources, the government could have tried Mr. Simpson again in order to obtain a satisfactory outcome. Only the 5th Amendment prohibited the State of California from doing just that.

The part that the 5th Amendment ignored and should have dealt with is the part that deals with “double punishment” for the same crime. If there is a weak link in our criminal justice system, it is in the area of “double punishment” for the same crime. I might have lots of legal experts discarding my point right about now. Please allow me to elaborate a bit further. [To be Continued]

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