A little judicial remorse for a big injustice

The U.S. Constitution is pretty clear that government gets one shot at trying a criminal defendant. Says the Fifth Amendment:

nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb

The reasoning is pretty clear: Government has essentially unlimited resources to draw upon to hone its case and to, basically, throw prosecutions against the wall until one sticks. Defendants have limited resources and can easily be destroyed by the process of waging an unending defense, even if that defense succeeds. To avoid the injustice inevitable in such scenarios, prosecutors get one chance to prove their case and that's it.

Or so you'd think.

In fact, the Supreme Court has long disagreed with what seems to be the plain meaning of the Constitution. Among their interesting interpretations of that document, our legal solons decided in U.S. v. Lanza that the prohibition against double jeopardy didn't really apply to prosecutions brought by different jurisdictions.

We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. ... Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.

This gives federal and state prosecutors a tempting opportunity to work hand-in-hand to bring repeated prosecutions against defendants for the same crime. That's especially tempting to government legal eagles who prefer the draconian sentences demanded by Washington, D.C. over the somewhat more humane penalties meted out by many state legislatures.

All of this comes into play in the case of Katie Heath, an Illinois resident who was tried and convicted in state court of distributing methamphetamine (a victimless activity, let me add). She served one year.

After she had served her time, returned to her community and begun putting her life back together, Assistant U.S. Attorney James Cutchin came after her on a conspiracy charge for distributing meth, based on the same activities for which she had already served time. Heath cooperated with the prosecution and signed a plea deal, reasonably expecting leniency. Instead, prosecutors rewarded her with a 20-year sentence.

Federal Judge J. Phil Gilbert was so appalled by the state's actions that, for months, he refused to impose the sentence. He also blasted prosecutors for "misconduct" and "misuse — if not outright abuse" of their power in negotiating agreements. Gilbert reportedly singled out James Cutchin for "his unwavering zeal for disproportionate punishment."

But a three-judge appeals panel ruled that federal prosecutors have all the discretion they claim to have and ordered Gilbert to reconsider. Instead, he exercised his last option and recused himself from the case. He also apologized to Heath for the gauntlet the government has put her through.

Now it's up to the next judge in the case to send Heath away for the mandated 20 years -- or (less likely) to follow Judge Gilbert's example.

Lots of little evils led to the injustice being committed in this case. Start with the "War on Drugs," which criminalizes consensual activity and has already deprived Ms. Heath of a year of her life. There's no good reason she should have gone to prison at all.

Then there's the Supreme Court's clever exception to the Constitution's ban on trying defendants twice for the same crime. Federal authorities are now free to put defendants through the ringer a second time, even when they've already been convicted and punished in state court. God help any poor fool who gets on the wrong side of a federal prosecutor.

Don't forget federal mandatory minimums, which take behavior punishable by a year or two behind bars at the state level and turn it into crimes punishable by decades in the slammer. Frankly, given the chunk of her life that's at stake, Ms. Heath would be well-advised to take her chances on the run rather than submit to the "justice" that's in store for her.

And then there's the duplicity of federal prosecutors, who lure defendants into cooperation with promises of leniency, then renege on the deals and slam their victims with the full force of government overreaction.

We have a legal system designed for the convenience of the vicious fanatics who gravitate toward prosecutorial work in general, and the U.S. Attorney's office in particular. They have the tools in their hand to destroy anybody who crosses their path, and the checks on their power are few.

Under the circumstances, we're certain to see more Katie Heaths sent away for long stretches, even after they've already been punished for crossing the state.

Contact The United States Attorney's Office -- Southern District of Illinois, the office that went after Katie Heath, here.