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Bending the rules in a good cause
January 5, 2012 - Stephen Browne
Just because I have connections in Great Britain, I noticed an article on an old murder case in England that probably means nothing to the overwhelming majority of Americans.
Two yobs with long criminal histories, Gary Dobson and David Norris, were convicted after a second trial of the unprovoked murder of 18-year-old Stephen Lawrence in southeast London in 1993. Dobson and Norris were 17 and 16-years-old at the time. Dobson and Lawrence are white, Lawrence was black. There may be others tried in the future as accomplices.
The two were tried first through something called a "private prosecution" initiated by Lawrence's family in 1994, but were acquitted. Later a special commission released the Macpherson Report, which found the police had bungled the case, found evidence of "institutional racism" in the police force, and most importantly recommended a change in the law modifying the ancient principle of double jeapoardy, that once acquitted an accused could never be retried for the same crime.
Double jeopardy was changed in Great Britain in 2005. If the Director of Public Prosecutions, and the Court of Appeal agree to quash the original acquittal due to new and compelling evidence, anyone convicted of certain serious crimes such as manslaughter, kidnapping, rape, armed robbery, and some drug crimes, can be retried.
In America a similar wedge has been driven into the double jeopardy laws with federal prosecutions for violating someone's civil rights. That's what the cops who beat the stuffings out of Rodney King were convicted of after being acquitted of the initial charges.
Stephen Lawrence was by most accounts a good and promising young man bound for higher education and better things. British society is well rid of the louts that mobbed and stabbed him for no other reason that sheer sadistic glee. (Racism was undoubtedly a factor, but evil people will glom on to any excuse or no excuse to do evil.)
And yet this bothers me.
There are good reasons for the double jeopardy principle, which in America is enshrined in this clause of the Fifth Amendment, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."
Among other things, the power and resources of the state are so much greater than those of any individual, that in a free and democratic society we kind of like to stack the odds in the individual's favor. Another way of stacking the odds is that quaint old notion of "innocent until proven guilty beyond a reasonable doubt."
It seems to me that this case illustrates a profound difference in people's thinking about politics, law, and justice that is only roughly described as "liberal" versus "conservative." It's not really that, but tends to line up along that divide.
One side wants to see unambiguously good results in each and all cases. The other is concerned about the process by which we achieve optimum trade-offs.
Getting those murderous thugs off the street was a Good Thing for sure. They will now serve "at Her Majesties pleasure" for a minimum of 14 and 15 years, and as much longer as Her Majesty pleases.
But at what cost I wonder? If long-established principles of justice can be waved aside for a good cause, can't they be waved aside for any cause the state pleases?
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