'insanity defense' and diminished capacity
Double jeopardy in the Kaczynski case(s)
On January 22, Theodore Kaczynski agreed to plead guilty in United States
v. Kaczynski, the federal UNABOM case. In return, federal prosecutors
agreed to a life sentence for Kaczynski, and specifically agreed not to
pursue the death penalty. For all intents and purposes, the federal trial
of Kaczynski is now over, and Kaczynski has avoided the federal death penalty.
However, Kaczynski has not fully avoided the death penalty yet. Prosecutors
in two states, California and New Jersey, have expressed an interest in
prosecuting Kaczynski, under their respective state laws, for murder. (However,
in late January, California said state law prohibited it from prosecuting
Kaczynski -- see below).
The question arises, if Kaczynski has already pleaded guilty to being
the UNABOMber in federal court, how can state courts try (and possibly
punish) him a second time?
The constitutional law of double jeopardy
Amendment to the United States Constitution states:
". . . nor shall any person be subject for the same offense to be twice
put in jeopardy of life or limb. . . ."
However, in the Kaczynski case, the crimes for which he stood trial in
federal court are different than the crimes for which he may stand
trial in California and New Jersey courts. Furthermore, the crimes in each
case arise from different bombing incidents.
In the federal case, prosecutors could not try Kaczynski for all the
UNABOM bombings, because they could not bring into federal court crimes
which were not federal crimes. They could only prosecute for those crimes
in which, for example, the bomb was sent through the mail. (The federal
law regarding the death penalty is found at 18
U.S.C. § 3591.)
The New Jersey court, on the other hand, woul try Kaczynski for state-law
murder, not for the federal crime of, for example, murder by mail-bomb.
Furthermore, in New Jersey, for example, the bomb which killed Thomas Mosser
was not included in the four bombs of which Kaczynski was accused in the
In short, Kaczynski has only been tried and convicted of sending four
bombs. He is still liable for other crimes arising from other bombs he
might have sent.
The California situation
However, the Sacramento County prosecutor has said that Kaczynski will
not stand trial in California for the two fatal bombs he sent in that state.
According to California law, Kaczynski's federal plea bargain, in which
he confessed to 11 unprosecuted UNABOM bombings, precludes prosecutors
from indicting him for bombings covered under Kaczynski's confession. This
is a matter of state law, and not necessarily of Constitutional Double