Facts of Bond v. United StatesCarol Anne Bond learned that her husband, Clifford, had been cheating on her. To make matters worse, the other woman was Bond’s closest friend Myrlinda Haynes. To make matters even worse, Haynes was pregnant by Clifford. And also, Bond was unable to bear children of her own. Carol Bond wanted revenge. She worked for a chemical company and stole a bottle of an arsenic based substance from her employer. She also ordered a vial of potassium dichromate, a photo developing chemical, from Amazon.com. On several occasions over the course of 7 months, bond spread the chemicals on Haynes’ mailbox, doorknob, and car door handle.
Haynes was quite aware of Bond’s scheme, one of the chemicals she used was bright orange and easy to spot. She avoided contact with the chemicals and reported the toxic traps to local police; they weren’t interested in getting involved. The chemical attacks persisted and, after Haynes got a minor burn on her thumb, the U.S. Postal Service agreed to investigate. They set up surveillance cameras and found conclusive evidence of Bond’s involvement.
The Chemical Weapons ConventionNormally, retaliating against your husband’s lover by hurting her thumb is called assault and is properly dealt with in State court. But here, the The U.S. Attorney got creative and prosecuted Bond for violating 18 U.S.C. § 229(a)(1) the statute criminalizing violations of the Chemical Weapons Convention or CWC.
In 1993, the United States joined with other nations to sign the CWC. Signatories to the treaty agreed to ban the development, stockpiling or use of chemical weapons. 18 U.S.C. § 229(a)(1) outlaws CWC violations and makes it a federal crime “knowingly to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.” 18 U.S.C. § 229F defines “chemical weapon” to include any “toxic chemical” meaning:
any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. The term includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere. 18 U.S.C. § 229F(8)(A)That definition covers a whole lot of chemicals including the substances that Mrs. Bond spread on the door handles, mailbox and car handles for her husband’s lover.
The Road to SCOTUSBond moved to dismiss the indictment arguing that her federal prosecution “exceeded Congress’ enumerated powers, invaded the powers reserved to the States by the Tenth Amendment, and impermissibly criminalized conduct that lacked a nexus to any legitimate federal interest.” Petition for Cert. Page 10. The motion was denied, and Bond entered a conditional guilty plea allowing her to appeal the issues raised in the motion. Bond was sentenced to 6 years in federal prison. If charged with a Pennsylvania State assault, she likely would have faced a sentence of 3 to 25 months.
The Third Circuit affirmed but did not reach the constitutional arguments. Instead, the court held that Bond lacked standing to challenge legislation designed to implement treaties. The U.S. Supreme Court had to resolve the question and, in 2011, ruled in Bond’s favor holding that she did have standing to challenge section 229.
On remand, the Third Circuit reached the merits but again affirmed Bond’s conviction. The Court was conflicted about the outcome noting that, “The decision to use the Act — a statute designed to implement a chemical weapons treaty — to deal with a jilted spouse’s revenge on her rival is, to be polite, a puzzling use of the federal government’s power.” n.20. They also recognized that, “The Act’s breadth is certainly striking, seeing as it turns each kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache.” n.7. Still, the court believed that the law required this result.
Missouri v. Holland, Looking Good at 93?The Third Circuit felt bound by Missouri v. Holland, a five page Supreme Court opinion from 1920. That case did not involve a criminal prosecution, instead, Missouri sued Holland, the U.S. Game Warden, to enjoin him from enforcing the Migratory Bird Treaty Act of 1918. Holland had prevented some bird hunting within the state and one of the people he stopped happened to be the State's Attorney General. The District Court dismissed the suit and The Supreme Court affirmed. Though it's hard to discern a quotable “holding” from the case, the Supreme Court found that the treaty was constitutional, did not improperly invade powers reserved to the states, and that the legislation allowing the Warden to enforce the treaty was necessary and proper.
So what does Holland stand for? Prosecutors read the case to say that legislation enacted to enforce a valid treaty is a constitutionally valid exercise of the Necessary and Proper Clause. Bond argues that the constitution prohibits a national police power, and that passing a treaty can’t expand federal jurisdiction into the territory of state criminal law.
There is an iteresting story behind Holland. WYNC’s RadioLab recently did a podcast about that case and Bond, explaining the history in a pretty compelling way. You can use the player below to check it out.
Waiting For a RulingBond was argued November 5, 2013 and remains undecided. You can read SCOTUSblog’s argument recap here. The tea leaves suggest that the court might be leaning Bond’s way. Justices seemed suspicious of section 229 with Alito noting that Halloween candy could be considered a chemical weapon under the treaty since it’s poisonous to dogs. Roberts noted that the logical conclusion of the government’s position would allow congress to end run the constitution and claim a nation police power just by adopting a treaty on the issue. When Solicitor General Verrilli replied that ratification of such a treaty was “unimaginable”, Justice Kennedy said: “It seems unimaginable that you did bring this prosecution.”
Bond’s attorney, Paul Clement, argued that the court need not limit the government’s treaty power in order to find section 229 unconstitutional as applied. He argued that principles of constitutional avoidance require the court to construe the statute to apply only to warlike use of chemical weapons. Such a reading is constant with the language of the treaty and the statute, and applying that interpretation avoids the entire conflict. A decision is expected early in 2014.