The '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

The Fifth Amendment to the United States Constitution states: 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 federal indictment.

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 Jeopardy import.