The recent suicide of Aaron Swartz has provoked a great deal of public discussion of what many consider to be overreaching by federal prosecutors in his case. In the view of some critics, Swartz’s theft of academic articles from JSTOR would have been more properly handled as a minor property offense in state court. Instead, Swartz found himself in federal court facing a possible 35 years in prison and a set of charges invoking a variety of obscure federal criminal statutes.
Whatever the merits of the criticisms, they have served to draw public attention to the extraordinary power exercised by federal prosecutors and the uncertain line between what is most appropriately handled in state court and what is most appropriately handled in federal.
Although the Swartz litigation is now presumably over, another case that has provoked similar charges of prosecutorial overreaching is now on its way to the Supreme Court . . . for a second time.
On Friday, the Supreme Court agreed to hear Bond v. United States (No. 12-158), which presents important questions about the power of Congress to create new federal crimes on the basis of a treaty. The petition for certiorari is here.
Despite the exotic overlay of international law, the case arose in a thoroughly mundane way: from a husband’s sexual infidelity. When the defendant, Carol Anne Bond, learned that her husband had impregnated another woman, she decided to exact her revenge by exposing the other woman to certain skin irritants. As a result, Bond’s rival suffered a chemical burn on one of her thumbs.
Although the case seems a straightforward matter of assault, ripe for prosecution in state court, federal prosecutors decided to take the case and charge Bond with possessing a “chemical weapon” in violation of the Chemical Weapons Convention Implementation Act. The Act purports to implement an international arms-control treaty.
Bond entered a conditional plea of guilty, reserving her right to appeal the constitutionality of the charges against her, and was sentenced to six years in prison. By contrast, the cert. petition claims that her sentence in state court would have been three to 25 months.
Bond’s first trip to the Supreme Court resulted in a holding that she did indeed have standing to present her constitutional challenges. (See my post here.) The Court then remanded to the Third Circuit to resolve those challenges.
The lower court decided against Bond, indicating that “principles of federalism will ordinarily impose no limitation on Congress’s ability to write laws supporting treaties, because the only relevant question is whether the underlying treaty is valid.” The cert. petition characterized the Third Circuit’s reasoning this way:
The court . . . brushed aside concerns that, as applied to petitioner, section 229 [of the statute] goes far beyond what is necessary to implement the Chemical Weapons Convention and intrudes on matters of traditional state concern. That a failure to reach petitioner’s conduct would not put the United States in violation of its treaty obligations was deemed immaterial. So too was the fact that state-law prohibitions and prosecutions could fully discharge any treaty obligation. Because the treaty was valid and the legislation rationally related to the treaty, further constitutional inquiry was foreclosed by the Third Circuit’s reading of [Missouri v.] Holland.
The federalism concerns implicit in these observations are reflected in the framing of the question that the Supreme Court has now agreed decide:
Do the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’s authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes upon traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations, and can the provisions of the Chemical Weapons Convention Implementation Act be interpreted not to reach ordinary poisoning cases?
Ultimately, the case could be decided on a number of narrow grounds relating to the specifics of the statute at issue or (somewhat less narrowly) to the scope of Congress’s authority to adopt statutes that purport to implement treaties but that otherwise do not fall within Congress’s power under the Constitution. Lurking in the background is the big question of what limitations, if any, are imposed on federal criminal jurisdiction by the Tenth Amendment or by constraints implicit in the structure of the Constitution.