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Column: In Hinckley’s Case, What’s Done Is Done

  • A secret service agent brandishes a submachine gun while agents and police subdue a gunman behind him after he shot President Ronald Reagan, his press secretary, a policeman and a secret service agent in Washington on March 30, 1981. The policeman lies wounded, foreground, while a White House staff member kneels over James Brady, the press secretary. (AP Photo/Ron Edmonds)

    A secret service agent brandishes a submachine gun while agents and police subdue a gunman behind him after he shot President Ronald Reagan, his press secretary, a policeman and a secret service agent in Washington on March 30, 1981. The policeman lies wounded, foreground, while a White House staff member kneels over James Brady, the press secretary. (AP Photo/Ron Edmonds)

  • John Hinckley Jr. arrives at U.S. District Court in Washington in Nov. 2003. Hinckley, the man who shot President Ronald Reagan is back in court for hearings on whether he should get to spend more time away from the psychiatric hospital where he has been living. (AP Photo/Evan Vucci)

    John Hinckley Jr. arrives at U.S. District Court in Washington in Nov. 2003. Hinckley, the man who shot President Ronald Reagan is back in court for hearings on whether he should get to spend more time away from the psychiatric hospital where he has been living. (AP Photo/Evan Vucci)

  • A secret service agent brandishes a submachine gun while agents and police subdue a gunman behind him after he shot President Ronald Reagan, his press secretary, a policeman and a secret service agent in Washington on March 30, 1981. The policeman lies wounded, foreground, while a White House staff member kneels over James Brady, the press secretary. (AP Photo/Ron Edmonds)
  • John Hinckley Jr. arrives at U.S. District Court in Washington in Nov. 2003. Hinckley, the man who shot President Ronald Reagan is back in court for hearings on whether he should get to spend more time away from the psychiatric hospital where he has been living. (AP Photo/Evan Vucci)

The government would have to overcome major legal hurdles to charge John Hinckley Jr. in the murder of James Brady some 30 years after the fact. But if that were the morally right thing to do, it would be worth trying, despite the improbability of success.

Is it? The answer is no — but not for the reasons you might think. It doesn’t have to do with Hinckley’s guilt or Brady’s heroism or Ronald Reagan’s presidential status. The reason not to prosecute Hinckley lies in the kind of criminal justice system we want to have: one that doesn’t seek solely to punish the guilty, but rather to punish the guilty subject to the requirements of basic fairness.

The legal barriers to a murder charge against Hinckley are less obvious than they might seem. First comes double jeopardy, the old idea that no one should twice be put on trial — and thus in jeopardy of life or limb — for the same crime. On the surface, it might seem obvious that the attempted assassination of Reagan in which Brady was injured is the exact same crime for which Hinckley was tried and found not guilty by reason of insanity in 1982. After all, Hinckley, inspired by Robert De Niro’s character in Taxi Driver, was trying to impress to Jodie Foster by killing the president — not by taking out his press secretary.

Yet a colorable argument could be made that the attack on Brady might be tried as a separate crime. Brady was a different person, and the bullet that hit him was a different bullet. If an attacker sprayed bullets across several victims, each shot could potentially be charged as a separate act.

The relevant Supreme Court precedent is a 1970 case called Ashe v. Swenson, in which Bob Fred Ashe was charged with being one of a group of masked men who robbed a six-man poker game. The defendant was first charged in an initial trial with robbing one of the six players, and was acquitted for lack of evidence. He was subsequently charged with robbing another of the players — in the selfsame robbery.

The court held that the jury had already adjudicated the question of whether Ashe had been one of the masked robbers by finding him not guilty the first time. Double jeopardy thus blocked the second prosecution.

Applying the 1970 case to Hinckley’s attack on Brady, it would seem that the jury that found him not guilty by reason of insanity already adjudicated the question of his guilt in this attack. It seems unlikely that the jury could have considered Hinckley insane with respect to the shooting of Reagan yet not with respect to the murder of Brady. This alone should probably be grounds for barring a subsequent prosecution.

Beyond double jeopardy, there’s the problem of proving murder. Brady lived more than 30 years after he was shot. Did Hinckley’s bullet kill him? Or were there sufficient intervening natural causes to bring about his death? Certainly Brady suffered significant and ongoing health problems as a result of being shot. But the legal question is not whether Hinckley injured Brady but whether his action was the but-for cause of Brady’s death. Without access to the autopsy, it’s tricky to know the answer. What’s certain is that a good defense lawyer could cast serious doubt on causation and make a conviction more unlikely still.

The last legal problem is the most vexing — and most morally significant. The legal standard under which Hinckley was found not guilty by reason of insanity was by today’s standards extremely liberal. The jury was asked, in essence, whether Hinckley lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the law. If the government couldn’t prove that the answer to both questions was no, Hinckley was supposed to be acquitted under the law as it then stood.

After the Hinckley verdict, outrage at the result led many jurisdictions to change their test. Many now require the defendant to prove insanity, rather than making the government refute it. Lots have reverted to the 19th century version of the question, which asks if the defendant knew right from wrong.

So if it were possible to retry Hinckley today, which legal standard would be the right one to apply? The one in place when the shooting happened, in 1981? Or the harsher one frequently applicable today? And who would bear the burden of proof?

The legal answer is subtle. The Constitution prohibits ex post facto laws, defined by the Supreme Court to include laws that deprive someone of a defense available when the alleged crime was committed. A subsequent law can’t remove a pre-existing defense.

The most natural interpretation of the changes in the insanity defense since Hinckley’s acquittal is that the new approaches couldn’t be applied retroactively without counting as an ex post facto law. Hinckley would almost certainly have to be tried as though it were 1981. The same now-unpopular definition of insanity would have to be used, and the government would have to refute the insanity defense.

A zealous prosecutor might try to argue that the insanity defense was available in 1981 and remains available now — only the technical means by which it is proved have changed. This would be a bridge too far. The changes in the law, including the burden of proof, affect its substance, not just the procedures by which it is established.

It emerges that the legal barriers to prosecuting Hinckley successfully are well-nigh insurmountable. Should a prosecutor go forward anyway, just to make the point that Hinckley should never have been acquitted in the first place? The reason not to do so has to do with our aspiration to apply fairness across the entire criminal justice system. Perhaps in retrospect the laws should’ve been tougher, and Hinckley should’ve been found guilty. But once he was acquitted, the legal system has a strong interest in not revisiting the acquittal. It doesn’t matter that the system has changed — because it changed in response to Hinckley’s case, which was already decided.

To do otherwise would be to create an ad hoc system, one that seeks to do substantial justice to individuals without satisfying our obligation to treat all cases according to the general principle of fairness. We can and should fix the law by changing it going forward. But what’s done is done. When it comes to applying the laws that exist at the time of the crime, the public should get what it gets and not get upset.

Noah Feldman is a professor of constitutional and international law at Harvard.