James Brady's Death and the Separate Sovereigns Doctrine

by Michael Dorf

Last week, James Brady died at the age of 73. Brady, then White House Press Secretary, was shot in 1981 by John Hinckley, who was attempting to assassinate President Reagan. Although Reagan suffered a punctured lung, following medical attention he recovered quickly. Brady, however, was permanently disabled; his speech was slurred and he needed a wheelchair. He and his wife Sarah spent much of the rest of his days working to tighten gun control laws. Obviously, they did not succeed in substantially reducing access to guns, but things could have been even worse were it not for the Brady Handgun Violence Protection Act (a federal law requiring background checks) and the ongoing efforts of the Brady Campaign. Many people in Jim Brady's circumstances would, quite understandably, devote the balance of their lives to their own comfort. He was a magnificent example of someone who found purpose in his own tragedy. So let me first say, rest in peace.

As is my wont, I also wish to raise a legal question that has been occasioned by Brady's death. The coroner in Northern Virginia ruled it a homicide. That determination immediately raised the question of whether Hinckley could be prosecuted for murder.

There are several obstacles to a murder prosecution, including the traditional "year and a day rule." It holds that in order for a defendant to be guilty of murder, the victim must die within a year and a day from the injury inflicted by the defendant. Here that obviously isn't met. If for some reason the year and a day rule were not applicable, then the prosecution would have to prove causation; the coroner's report apparently supports the conclusion that Brady's injuries shortened his life, so causation would be possible to prove. Eugene Volokh has a useful discussion of the year-and-a-day rule and other issues here.

The biggest obstacle, of course, is the fact that Hinckley was already tried--and found not guilty by reason of insanity--for the assassination attempt, including for the offense against Brady. And that means that double jeopardy almost certainly bars new charges for murder. Had the assassination attempt occurred in California (where two different women attempted to kill President Ford in September 1975) or Texas (where President Kennedy was killed), then there would be a loophole: Under the "separate sovereigns" doctrine, a prosecution on federal charges does not bar a subsequent prosecution on state charges, or vice-versa, even for the same conduct. For example, the officers who beat Rodney King were first acquitted on California charges (sparking the Los Angeles riots of 1992), but then tried on federal charges for the same conduct. There was no double jeopardy bar because each sovereign--here California and the federal government--had the power to prosecute violations of its own law.

But Hinckley shot Brady in the District of Columbia. As Volokh notes, Hinckley was charged, with respect to Brady, under D.C. law (although the trial was in federal court). If D.C. were a separate sovereign, then double jeopardy would not now bar murder charges under federal law. But as Volokh also notes, the D.C. Circuit has said that for double jeopardy purposes, D.C. and the federal government are not separate sovereigns. Although the case Volokh cites for that proposition does indeed say just that, it was not a double jeopardy case itself, so the statement is dicta. Moreover, that case in turn cites another D.C. Circuit case, which also made the point only in dicta. I did about 15 minutes of additional research and could find no case which squarely held that the separate sovereign exception to double jeopardy does not apply as between the District and the federal government.

Nonetheless, I agree with the strong dicta (and thus with Volokh's account of the law), at least given the key U.S. precedents. The case with the most relevant analysis is a 2004 Supreme Court ruling,
United States v. Lara. There the question was whether the dual sovereignty doctrine applies as between the federal government and a Native American tribe. Congress had expanded the scope of tribal court jurisdiction to include certain offenses committed on a reservation by members of other tribes. Lara was tried in tribal court and then charged for overlapping offenses in federal court. The question for resolution was whether the separate sovereign exception applied.

The SCOTUS said yes. In response to the defendant's argument that the tribe, in exercising power conferred by Congress, was effectively an arm of the federal government, the Court said that the relevant Act of Congress did not so much delegate power to the tribe as it lifted a prior prohibition on the tribe's exercise of its own sovereignty. Thus, the crucial distinction the Court drew was this: Where a sovereign or quasi-sovereign entity exercises authority delegated  by the federal government, it acts as the federal government and thus the separate sovereign exception does not apply; but where the sovereign or quasi-sovereign exercises its inherent sovereign power to prosecute, then the exception does apply.

It's not clear that the Court in Lara correctly applied the delegated/inherent distinction to the facts of that case, as Justice Souter (joined by Justice Scalia) argued in dissent. Nonetheless, application of the Lara distinction to D.C. pretty clearly confirms the D.C. Circuit dicta: As a territory of the United States, D.C. has no inherent sovereign power, and so can only exercise authority delegated by the federal government. Even when D.C. acts in accordance with the wishes of its residents pursuant to the Home Rule Act, its actions can be overturned by Congress, and Congress could, if it so wished, entirely abolish home rule in the District.

Still, one might legitimately question this result on fairness grounds--although usually the questioning comes from the other direction. Various commentators have suggested that the separate sovereign exception to double jeopardy is a loophole. Perhaps it makes sense, they say, to treat prosecution by a truly foreign sovereign as not triggering the double jeopardy protection, but states are not fully sovereign. Given the substantial overlap of federal and state crimes--and given the degree to which the state and federal government are integrated into a single system--these critics say that prosecution in one system should preclude prosecution in the other.

I think there is a good deal to be said for that criticism, but also something to be said, even on policy grounds, for the other side. At least where the question is whether a state prosecution bars a subsequent federal prosecution, the federal interest in protecting civil rights looms large. Incompetent or half-hearted prosecutions by state authorities should not be permitted to bar vigorous enforcement of federal civil rights. But it is not clear to me that it is possible to justify such a result--no separate sovereign doctrine except in civil rights cases--as a matter of constitutional law.

Finally, it is worth noting how the anomalous treatment of D.C. both over-protects and under-protects D.C. residents. D.C. license plates proclaim "Taxation Without Representation" in protest of the lack of congressional representation and the other ways in which D.C. lacks various powers of the states. The inapplicability of the separate sovereign exception could be thought to be a counterweight: one way in which D.C. residents get something that state residents lack. And it's true, that someone accused of committing a crime in D.C. does get something out of the inapplicability of the separate sovereign exception, namely, the knowledge that he only has to beat the rap once. But viewed from the perspective of crime victims, things look quite different. At least in cases where there is overlapping state and federal jurisdiction, a crime victim in a state who sees the alleged perpetrator beat the charges has a second chance at (what she believes is) justice in a second jurisdiction. Crime victims in D.C. are denied that opportunity. Now if only there were some way to characterize that injustice in a slogan that could fit on a license plate!