January 5, 2011
The 2010 election cycle was notable for the rise of the political group known as the Tea Party, which campaigned for candidates on the premise that the federal government has grown too big and is now too intrusive in the lives of the citizens of the United States. Whatever one may think of that philosophy in the abstract, a criminal case currently being considered by the U.S. Supreme Court provides some fodder for Tea Party sympathizers and raises some fascinating questions about the role of the federal government in prosecuting crimes ordinarily prosecuted by the states, and about how those being prosecuted by the United States can challenge the statutes under which they have been charged.
The case is Bond v. United States, No. 09-1227, 2010 WL 4483364 (U.S. Nov. 10, 2010). A review of the facts of the case shows that in 2006, Carol Bond, a 40-year-old resident of the small borough of Lansdale, Pennsylvania, discovered that her best friend, Myrlinda Haynes, was pregnant with a child by Bond's own husband. As a result, Bond suffered an emotional breakdown, with intense anxiety and depression. During her emotional difficulties, Bond became obsessed with punishing Haynes for her betrayal and purchased a bottle of 10-cholo-10H-phenoxarsine (an arsenic-based chemical) from her employer, the chemical manufacturer Rohm & Haas, and purchased a vial of potassium dichromate from a photography equipment supplier. These chemicals are known irritants to human skin and can be fatal if exposed to the skin at sufficiently high doses. Bond was aware of the danger posed by the chemicals and believed that if Haynes touched them, she would develop an uncomfortable rash.
To carry out her plan, Bond went to Haynes's house and spread the chemicals over Haynes's car door handles, mailbox, and apartment door knob. Because the chemicals were easily observed, Haynes did not touch them and remained unharmed, except for one occasion when she sustained a small chemical burn on her thumb, which required repeated rinsing with water. Haynes went to the police and to postal inspectors for assistance, and they began video surveillance on her apartment. Bond was later caught on tape opening Haynes's mailbox, stealing an envelope, and stuffing potassium dichromate inside the muffler of Haynes's car. She was subsequently arrested, and a search of her home revealed the packages of the chemicals that had been used at Haynes's apartment.
Rather than turning the matter over to local law enforcement officials for prosecution under state assault statutes, the local Assistant U.S. Attorney decided that the federal government should remain involved, and he took the novel approach of charging Bond with violating 18 U.S.C. § 229(a), a federal statute implementing the United States' obligations under the 1993 Chemical Weapons Convention. The Convention—formally entitled the "Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction"—is an international arms-control agreement that outlaws the production, stockpiling, and use of chemical weapons. The Convention expressly "reaffirms" and "complements" the Geneva Protocol of 1925, which prohibits the use in wartime of asphyxiating or poisonous gases and bacteriological weapons. The stated objective of the treaty is to move towards "complete disarmament under strict and effective international control" and the "elimination of all types of weapons of mass destruction." After the U.S. Senate ratified the Convention in 1997, Congress enacted 18 U.S.C. § 229 as a means of ensuring domestic compliance with the Convention's provisions. That statute, under the chapter entitled "Chemical Weapons," states in pertinent part:
(a) Unlawful conduct.—Except as provided in subsection (b), it shall be unlawful for any person knowingly—
(1) to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon; or
(2) to assist or induce, in any way, any person to violate paragraph (1), or to attempt or conspire to violate paragraph (1).
18 U.S.C. § 229(a).
Of course, Bond's conduct did not involve stockpiling chemical weapons, engaging in chemical warfare, or undertaking any of the activities prohibited to state signatories under the Chemical Weapons Convention. Nevertheless, the Assistant U.S. Attorney secured an indictment against Bond that included counts under § 229.
Prior to trial, Bond moved to dismiss the counts based on § 229, arguing that the statute, as applied to her, exceeded the federal government's enumerated powers, violated federalism principles guaranteed under the Tenth Amendment, and impermissibly criminalized conduct that lacked any nexus to a legitimate federal interest. The district court denied the motion, finding that § 229 was properly enacted by Congress under the Necessary and Proper Clause for the purpose of complying with the provisions of a treaty, a valid federal purpose. Bond then pleaded guilty on the condition that she could appeal the denial of her motion to dismiss, and she was sentenced to six years in prison after the district court agreed to the Government's request to impose a sentencing enhancement because Bond had used a "special skill" in selecting chemicals that were toxic through topical exposure. By comparison, had Bond been convicted under state law for aggravated assault, she likely would have faced a prison sentence of 3 to 25 months. See 18 Pa. Cons. Stat. § 2702(a)(4); 204 Pa. Code § 303.13. Had Bond been convicted under a federal law relating to her interference with the mails, her Guideline range for imprisonment would likely have been 0 to 6 months. See U.S.S.G. § 2B1.1.
Bond appealed to the U.S. Court of Appeals for the Third Circuit, and after briefing and oral argument in which Bond reiterated her constitutional arguments, the court requested briefing on the question of whether Bond even had standing to contest the validity of the statute under the Tenth Amendment. Ultimately, the court declined to address the merits of Bond's arguments and instead reached the conclusion that a criminal defendant convicted under a federal statute lacks standing to challenge that statute as beyond Congress's power to enact or as otherwise inconsistent with the Tenth Amendment, absent the involvement of a state or its officers as a party or parties to the litigation. In adopting this conclusion, the court determined that it was bound by the case of Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118 (1939), in which the Supreme Court had held that local public utilities did not have standing to enjoin the Tennessee Valley Authority, an instrumentality of the federal government, from competing against them in the sale of electricity, absent the joining of state authorities in the complaint.
Bond has argued to the Supreme Court that Tennessee Electric Power Co. presents no barrier to her challenge to her prosecution under § 229, pointing out that under ordinary standing principles applicable in other contexts, she clearly has standing to challenge the statute because she can show injury-in-fact that is fairly traceable to the allegedly unlawful Government action, which would be redressed by a decision favorable to her. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Bond also pointed out that conceptions of the role of the Tenth Amendment have changed dramatically since 1939 and that the Supreme Court has recently affirmed both the importance of the Tenth Amendment and limits on Congress's enumerated powers in such cases as United States v. Lopez, 514 U.S. 549 (1995). Interestingly, the Government now agrees with Bond's arguments with regard to standing and has submitted briefs to the Supreme Court in support of her position. The Government points out that there are two different types of claims that implicate the Tenth Amendment. The first type consists of claims that the federal government has interfered with a specific aspect of state sovereignty by, for example, commandeering state legislatures or executives. The second consists of claims that Congress exceeded its Article I authority in enacting legislation. The Government asserts that Bond has raised only an enumerated-powers claim, not an interference-with-sovereignty claim, and that enumerated-powers claims may be raised by plaintiffs who meet traditional standing requirements without the participation of state officials.
Bond's case has triggered a number of amicus briefs from different groups that attack the federal role in prosecuting crimes, in a way that mimics the public debate on the more general issue of the proper role of the federal government. Briefs have been filed by the Center for Constitutional Jurisprudence; the Cato Institute; the Gun Owners Foundation; Gun Owners of America, Inc.; the Conservative Legal Defense and Education Fund; the States of Alabama, Colorado, Florida, South Carolina, Texas, and Utah; and the Eagle Forum Education & Legal Defense Fund. These groups point out that 40% of federal criminal statutes have been enacted since 1970 and that most new federal crimes seek to prosecute conduct that is simultaneously subject to prosecution under state laws that have been on the books for years. They argue that the growing overlap of federal and state criminal laws promotes sentencing disparities among defendants and invites abuses of prosecutorial discretion, such as what occurred in Bond's case. Because a wide spectrum of criminal conduct is now potentially subject to either federal or state prosecution, similar defendants can receive significantly disparate punishments depending on the choice of prosecution under federal law or state law. Offenders often fare dramatically worse under a federal law prosecution than under a state law prosecution for identical conduct.
The debates over the role of the federal government in prosecuting crimes will not be ended, or even much affected, by the Bond case, as the central issue in that case is standing. But the travails of Carol Bond have provided a platform for bringing to the Court the current political conflicts with regard to the scope of the Tenth Amendment and the proper role of the federal government in general. One suspects that the ruling in Bond will not be the end of this process.