How a Chemical Cat Fight Became a Federal Case
The last time the Supreme Court heard a 10th Amendment case, it involved Graydon Earl Comstock, a man convicted of receiving child pornography whom the feds wanted to detain indefinitely after he completed his prison sentence because they deemed him "sexually dangerous." This time, Adam Liptak reports in The New York Times, the back story features Carol Bond, "a woman hellbent on poisoning her best friend." After learning that her husband had impregnated her friend, Bond, a Pennsylvania microbiologist, announced (according to the friend's testimony), "I am going to make your life a living hell." Bond proceeded to "spread lethal chemicals on her friend's car, mailbox and doorknob."
No serious injuries resulted, and if Bond had been charged and convicted under state law she probably would have ended up serving two years or less. Instead, because her crime involved a mailbox (triggering an investigation by postal inspectors), she was charged under federal law—not only with mail tampering but with violating the Chemical Weapons Convention of 1993. She got six years, of which she already has served more than three. Bond's lawyer, former Solicitor General Paul Clement, argues that federal prosecutors misapplied a treaty aimed at the use of unconventional weapons by terrorists and rogue states, improperly intruding on the police power reserved to the states by the 10th Amendment. "Domestic disputes resulting from marital infidelities and culminating in a thumb burn are appropriately handled by local law enforcement authorities," he argues.
As Liptak notes, Bond's case epitomizes "an issue that has lately united conservatives, libertarians and liberals" who "say there are too many federal crimes, that they are often simultaneously vague and harsh, and that they undermine state authority to maintain public safety." The Court did not find that last argument persuasive in Comstock's case. In May, with Antonin Scalia and Clarence Thomas the only dissenters, it upheld post-sentence detention of "sexually dangerous" federal prisoners as a "necessary and proper" extension of the criminal statutes under which the detainees were convicted. The problem, as I noted at the time, is that the constitutional basis for those statutes is often shaky. Congress has arbitrarily decreed, for example, that any case involving possession of child pornography, such as Comstock's, can be federalized if the material "has been mailed, or has been shipped or transported in interstate or foreign commerce, or…was produced using materials which have been mailed or so shipped or transported, by any means including by computer."
More on Bond v. U.S., which the Supreme Court will hear this term, here. William Anderson and Candice Jackson sounded the alarm about the over-federalization of crime in a 2004 Reason article.