Federalism

How a Chemical Cat Fight Became a Federal Case

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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.

NEXT: Rise of the Bitter Clingers

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  1. Is anyone here optimistic enough to think this case will be decided in a way that doesn’t expand federal power?

    1. After the Comstock decision? No.

  2. “she was charged under federal law?not only with mail tampering but with violating the Chemical Weapons Convention of 1993”

    {spit take}

  3. The declaration of an action as criminal 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.

    Nope, nothing chilling about that.

    I produced a nice sized poop this morning in a toilet that was purchased via interstate commerce. So now my poop is potentially under Federal scrutiny?

  4. How far we have come from the days when there were very few and limited federal crimes, and those related to specifically federal functions, like counterfeiting and tampering with the mail.

    The reason being, you couldn’t commit a crime that would be within the jurisdiction of the federal government, without also being in the jurisdiction of a state government which could prosecute the crime.

    1. The reason being, you couldn’t commit a crime that would be within the jurisdiction of the federal government, without also being in the jurisdiction of a state government which could prosecute the crime.

      But then local D.A.’s figured out they can simply hand cases over to the feds. Think of it as a free prosecution on someone else’s dime.

    2. The Jim Crow South had a great deal to do with that too.

  5. Ha. We just talked about this pending case in my Constitutional Law class yesterday.

  6. Con Law class? If you’re a 1L, remember, there is still plenty of time to avoid becoming a lawyer. Escape now while you can!

  7. What about the theory that in essence, people, states and various interest groups have asked for this outcome?

    There’s a long history of cases (which I won’t link in this post unless someone demands it) where state courts failed to successfully prosecute someone under state laws, so the case is kicked upstairs to federal court for what is essentially “retrial”, but under vague federal statutes, thus escaping the double-jeopardy limitation.

    Is it possible we’ve done this to ourselves?

    1. HELL YES!

      1. Well, I did say I would link on request, but believe it or not, you kids wouldn’t have been on the top of my list. There are several other less high profile cases that came to mind where the defendant was acquitted of murder charges, then civil rights groups got angry, lobbied lawmakers, and the defendant went to trial in Federal Court for “civil rights violations” against the victim and got life in prison.

        1. You don’t get life for civil rights violations.

  8. What about the theory that in essence, people, states and various interest groups have asked for this outcome?

    Oh, well, that’s alright then.

    Shame they didn’t actually, you know, amend the Constitution first.

    1. My point isn’t that it’s “alright”, but that when myriad special interests, politicians, and a willing public want to “get” those guys that failed to be convicted in state courts, that it set a very nasty precedent that we can just double-up on federal charges.

      1. That’s what I took your post to mean.

      2. Fair enough.

        Still a shame they didn’t bother to amend the Constitution first, though.

        1. That’s what makes it a living constitution. No need to amend. Just reinterpret and you’re on your way.

  9. In Pennsylvanai, you only get two years for the pre-meditated spreading of lethal chemicals on items you had good reason to suspect someone would touch?

    I am totally sending a few ex-wives to Philadelphia.

  10. 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.

    Why isn’t Bond being tried for attempted premeditated Murder?

    Is the penalty for attempted premeditated murder only 2 years?

    1. Good question. Perhaps it has to do with the fact that the “lethal chemical” was Potassium Dichromate, which in the quantities mentioned is likely to give you dermatitis, not kill you. Sure, enough of it is deadly, but the dose does make the poison.

      Fun fact: In absurdly tiny proportions, it’s the “ingredient” in homeopathic quack medicine HeadOn. Because, hey, it causes dermatitis, so in small doses it’ll cure it.

    2. Considering her statement that she wanted to make the other woman’s life a “living hell,” I suspect that chronic dermatitis, not murder, was her aim, and that the quantities involved reflect that.

  11. Is Graydon Earl Comstock related to Anthony?

  12. “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.”

    You mean, they forgot to charge her with a crime against humanity under the Universal Declaration of Human Rights of 1948? Attempted genocide?

    Seriously, my guess is that this case will be decided in her favor, but that the Court will wimp out and decide it on statutory grounds, holding that that Chemical Weapons Convention was never intended to apply to cases like this. In this way they avoid the 10th Amendment issue.

  13. Oooh, she could have done some nasty shit, if she really wanted to. Anyone want some E. Coli?

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