Luigi Mangione’s Jeopardy

Accused killer Luigi Mangione’s outburst in court today over double jeopardy throws into sharp relief a constitutional dilemma that’s particularly problematic to peg politically. Mr. Mangione is charged in federal and state courts for the murder of the chief executive of UnitedHealthcare. He reckons this is “the same trial twice.” This appraisal has been endorsed by Supreme Court justices on right and left — even if a majority of the Nine disagreed.“One plus one is two,” is how the accused murderer sums up his plight, calling it “double jeopardy by any commonsense definition.” It’s not our intention here to suggest sympathy for Mr. Mangione, but to mark the nod to the Fifth Amendment, which forbids “any person” to “be subject for the same offence to be twice put in jeopardy of life or limb.” This provision, by barring repeated prosecutions of a criminal defendant, limits government power.A “great privilege secured by the common law,” Justice Joseph Story called the double jeopardy provision. “The meaning of it is, that a party shall not be tried a second time for the same offence, after he has once been convicted, or acquitted of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him.” It does not, though, protect a defendant if a jury fails to give a verdict, or if a “judgment has been arrested” on a verdict, he added.Story, though, could not necessarily have contemplated the complaint of a defendant like Mr. Mangione, who is in effect being tried for the same crime in two jurisdictions. This practice is supposedly justified by what legal sages call the Dual Sovereignty Doctrine. The Supreme Court, in United States v. Lanza, decided in 1922, gave its blessing to such overlapping prosecutions. It’s telling that the Lanza holding arose in a Prohibition-era dispute.After all, Uncle Sam’s effort, via the 18th Amendment, to prohibit alcohol marks one of the biggest expansions of the power of the federal leviathan in American history. Prior to the 20th century, the vast majority of crimes were understood to be matters for the states to prosecute. Congress, in 1790, listed but 23 offenses in the Crimes Act. These included, say, treason, counterfeiting, and piracy. Yet there are now more than 5,000 federal crimes. The metastasis of the federal criminal code has created more opportunities, or even inevitabilities, for prosecutions like those against Mr. Mangione. His lawyer, Karen Friedman Agnifilo, said in court today that he “is being put in an untenable situation.” She pointed to “a tug-of-war between two different prosecution offices.” This quandary is underscored, too, by the question of whether the state or the federales have precedence as far as the timing of a trial.When the Nine last weighed this question, in Gamble v. United States, a majority saw no bar to dual prosecutions, since “where there are two sovereigns, there are two laws, and two ‘offences.’” Dissents emerged on left and right from Justices Ruth Bader Ginsburg and Neil Gorsuch. “Different parts of the ‘WHOLE’ United States should not be positioned to prosecute a defendant a second time for the same offense,” Ginsburg grumbled.Justice Gorsuch lamented that “a free society does not allow its government to try the same individual for the same crime until it’s happy with the result.” He called the high court’s backing of the Dual Sovereignty Doctrine a “colossal exception” to the “ancient rule against double jeopardy.” Mr. Mangione’s lawyers could well make hay of Justice Gorsuch’s insight that “the Constitution promises all Americans that they will never suffer double jeopardy.”

Luigi Mangione’s Jeopardy

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