I never expected to find myself rising to the defense of former Comar Chief Technical Officer Martin Bowling, who stands convicted of stealing and misusing people’s credit card numbers and who has been implicated in a scheme to misuse Workforce West Virginia grant funds. But someone needs to stand up for the Constitution.
The Fifth Amendment’s Double Jeopardy Clause bars someone from twice being tried for the same crime. Mr. Bowling pleaded guilty in Kanawha County Circuit Court to the credit-card-related charges and ultimately received a suspended sentence and home confinement – possibly not the sentence that should have been imposed, but his sentence nonetheless.
Now the U.S. Attorney’s Office is prosecuting Mr. Bowling yet again for the credit card offenses. This time Mr. Bowling, who pleaded guilty AGAIN yesterday before U.S. District Judge John T. Copenhaver, will receive a minimum mandatory sentence of two years for the same crimes for which he received a suspended sentence and home confinement in state court.
How can that be? Technically, the Double Jeopardy Clause is not implicated for crimes that are violations of both federal and state laws. The theory is that the separate federal and state sovereigns have separate interests, and both should have the right to punish someone for the same crime.
Recognizing the potential unfairness of dual and successive prosecutions, the federal Petite Policy requires approval from the appropriate Assistant Attorney General and satisfaction of three prerequisites before a successive prosecution may be launched: (1) the matter must involve a substantial federal interest; (2) the prior prosecution must have left that interest demonstrably unvindicated; and (3) the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. The U.S. Attorney’s Office in Charleston apparently went through this process before initiating a separate prosecution against Mr. Bowling.
Successive state and federal prosecutions may be permissible legally, but that doesn’t make them right.
“If the law supposes that,” said Mr. Bumble, “the law is a ass — a idiot.”
- Charles Dickens, Oliver Twist
