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Why Civil Libertarians Should Oppose Federal Civil Rights Charges in Kelly Thomas Case

01/17/2014 05:16 pm ET | Updated Mar 19, 2014

On Monday, a jury acquitted Officers Manuel Ramos and Jay Cicinelli of charges related to the death of Kelly Thomas. Immediately afterwards, the FBI field office in Los Angeles announced that it would review the case to determine if federal charges would be brought against the officers.

The verdict was unpopular with civil libertarians, who cited the case as evidence of increasing police brutality, the result of a militarization trend in state and local police departments. They had hoped a guilty verdict would establish some accountability for officers who abuse their power.

They were correct to call attention to the case, but they should oppose federal charges against Ramos and Cicinelli. Affirming the authority of multiple governments to charge defendants with crimes for the same behavior loses the forest for the trees. While a conviction in federal court may feel good in this case, it further empowers the federal government to encroach upon state jurisdiction and weakens due process rights for defendants in general.

Bad laws and precedents are rarely set in relation to sympathetic defendants. Federal conspiracy and RICO statutes were originally passed in order to prosecute mob leaders for ordering murders or intimidating witnesses. Few opposed setting aside hearsay prohibitions and other rules of evidence for those defendants.

However, once passed, those same laws were used against hundreds of thousands of low-level drug offenders, resulting in disproportionately long sentences for relatively minor offenses. It is now routine for prosecutors to charge every drug offender with conspiracy for the express purpose of circumventing the rules of evidence that would otherwise apply. Judges are then required to sentence defendants not only for the drugs they were caught with but for any drugs even mentioned by witnesses in hearsay testimony.

That's how a defendant caught with a small amount of cocaine for personal use ends up serving 10 or 15 years for "drug trafficking." This is not an extreme example of what could happen. It's business as usual in federal drug cases. It's also one of the chief reasons the United States leads the world in prison population, at over 2.3 million incarcerated. A disproportionate number incarcerated are minorities.

Just as conspiracy and RICO laws erode rules of evidence protections for defendants, federal charges for violation of civil rights after a murder acquittal erodes the protection against double jeopardy. While the federal government doesn't technically charge the defendant with the same crime, it has most often used the tactic as a thinly disguised ploy to overturn an unpopular verdict, most famously the acquittal of the officers charged in the Rodney King beating.

Progressives have typically supported this, especially where racial discrimination is alleged in either the crime or the subsequent court proceeding. However, given the way expanded federal powers have worked against minorities in drug cases, progressives may want to rethink their support.

Ironically, progressive civil libertarians might do well to align themselves with "states' rights" groups on the right in opposing not only this particular tactic but all overlap of federal and state jurisdiction in criminal cases. When federal and state prosecutors are allowed to team up for multiple bites at the same apple, it is rarely the worst of the worst who suffer. Most often, they are inner-city minorities who get walked into a plea deal by a public defender after state and federal prosecutors load up the downside risk of a trial.

Times change. At one time, "states' rights" immediately elicited images of governors standing in school doorways, claiming desegregation encroached upon powers reserved to the states. That was before the drug war put over 1 million people of color in jail, most of whom weren't even charged with a violent crime. While incarcerations at the state level have decreased in recent years, increases at the federal level have outpaced those reductions. The overall prison population continues to rise. The demographics haven't changed.

Prosecutors had their day in court with Ramos and Cicinelli. They had all of the resources of the state behind them and failed to obtain a conviction. As bitter as that result is for civil libertarians, supporting the federal government in going after them again is even worse. Due process protections for defendants need to be restored, not eroded further.

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

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