In an opinion sure to be cited by many federal criminal defendants for years to come, the Supreme Court yesterday overturned the conviction of Carol Anne Bond under the Chemical Weapons Convention Implementation Act. Although few defendants are prosecuted under this statute, the Court’s decision in Bond is noteworthy for its approach to the interpretation of federal criminal statutes. The Court adopted a narrow interpretation of the Implementation Act in order to preserve what it called the “usual constitutional balance of federal and state power.” (12) This interpretive principle is not a new one, but the Court applied it in an unusually aggressive fashion in Bond. The opinion is sure to be a favorite of defendants who find themselves prosecuted in federal court for offenses traditionally and routinely handled in state courts.
The underlying facts in Bond were a mix of the mundane and the bizarre.
Ms. Bond discovered that her husband had an affair with her best friend, and she decided to get revenge against the friend—that was the mundane part. Her plot involved spreading chemicals on the friend’s car door, mailbox, and doorknob with the intent of causing a skin rash—that was the bizarre part.
Also odd was the decision of prosecutors to make a federal case out of this low-grade assault, which caused the victim only a minor thumb burn, and to charge a violation of the Chemical Weapons Convention Implementation Act. Adopted in the wake of international outrage over Iraq’s use of chemical weapons in its war against Iran in the 1980s, the Chemical Weapons Convention was a multilateral treaty that targeted war crimes and acts of terrorism. Congress passed the Implementation Act in 1998 in order to give the Convention effect in the United States. Only a handful of cases have been prosecuted under the Act, most involving either terrorist plots or much more dangerous chemical attacks than Bond’s.
Despite the apparent mismatch between the purposes of the Implementation Act and the character of Bond’s offense, her conduct did seem to fall within the literal terms of the Act’s criminal prohibition on the knowing use of a “chemical weapon.” The statute defines “chemical weapon” as a “toxic chemical . . . except where intended for a purpose not prohibited under this chapter . . . .” 18 U.S.C. § 229F(1)(A). “Purposes not prohibited by this chapter” is defined as “[a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity.” 18 U.S.C. § 229F(7). There was apparently no dispute that Bond’s chemicals were toxic, and, despite Bond’s argument to the contrary, it is hard to see how her use could be characterized as “peaceful.”
Yet, all nine justices voted to overturn her conviction under the Implementation Act. The Court divided only over whether the case should be decided on statutory or constitutional grounds.
Six justices, led by Chief Justice Roberts, thought the constitutional question—relating to Congress’s power to adopt treaty-implementing legislation—could and should be avoided. Notwithstanding the broad statutory definition of “chemical weapon,” the Roberts-led majority interpreted the law only to reach chemicals “of a sort that an ordinary person would associate with instruments of chemical warfare,” taking into account “both the particular chemicals that the defendant used and the circumstances in which she used them.” (15) Bond’s conduct thus fell beyond the statute’s coverage: the “circumstances of Bond’s offense—an act of revenge born of romantic jealousy, meant to cause discomfort, that produced nothing more than a minor thumb burn—[do not] suggest that a chemical weapon was deployed.” (16)
How did the Court reach such a narrow interpretation of a statute that was written so broadly? The Court relied on a rule of statutory construction that is sometimes referred to as the federalism canon. The leading case is Gregory v. Ashcroft, 501 U.S. 452 (1991), which Bond quoted as follows: “’it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides’ the ‘usual constitutional balance of federal and state powers.’” (12) Bond reformulated this federalism canon for criminal cases as follows:
Because our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as intruding on that responsibility, unless Congress has clearly indicated that the law should have such reach. (2)
Again, I expect that many federal defense lawyers will have occasion to quote this language in coming years.
Even requiring a clear statement of congressional intent to reach Bond’s conduct, however, it would seem that Congress supplied such a statement through its broad definition of “chemical weapon.” Justice Scalia argues persuasively to this effect in his opinion concurring in the judgment; it was his more expansive reading of the statute that rendered the constitutional question unavoidable in his analysis.
In order for the federalism canon to do its work, the majority had to find some ambiguity in the Implementation Act. Lawyers and judges should take note of the Court’s treatment of this question:
In this case, the ambiguity derives from the improbably broad reach of the key statutory definition given the term—“chemical weapon”—being defined; the deeply serious consequences of adopting such a boundless reading; and the lack of any apparent need to do so in light of the context from which the statute arose—a treaty about chemical warfare and terrorism. (14)
Ambiguity thus came, in large part, from the gap between ordinary and dictionary meanings of “weapon” and “chemical weapon” and the statutory definition of “chemical weapon” (15-16). As Scalia observed, this was a remarkable move by the Court:
There is no opinion of ours . . . which says, or even suggests, that “dissonance” between ordinary meaning and the unambiguous words of a definition is be resolved in favor of ordinary meaning. If that were the case, there would hardly be any use in providing a definition. No, the true rule is entirely clear: “When a statute includes an explicit definition, we must follow that definition, even if it varies from that term’s ordinary meaning.” Stenberg v. Carhart, 530 U.S. 914, 942 (2000) (emphasis added). Once again, contemplate the judge-empowering consequences of the new interpretive rule the Court today announces: When there is “dissonance” between the statutory definition and the ordinary meaning of the defined word, the latter may prevail. (6)
In addition to the ordinary meaning of “chemical weapon,” the Court also based its finding of statutory ambiguity on “the deeply serious consequences of adopting [the Government’s] boundless reading” of the Implementation Act:
The Government’s reading of section 229 would alter sensitive federal-state relationships, convert an astonishing amount of traditionally local criminal conduct into a matter of federal enforcement, and involve a substantial extension of federal police resources. It would transform the statute from one whose core concerns are acts of war, assassination, and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults. As the Government reads section 229, hardly a poisoning in the land would fall outside the federal statute’s domain. (17, citations and internal quotation marks omitted)
Again, Scalia points out the novelty of the Court’s reasoning:
[The Court] starts with the federalism-related consequences of the statute’s meaning and reasons backwards, holding that, if the statute has what the Court considers a disruptive effect on the “federal-state balance” of criminal jurisdiction, that effect causes the text, even if clear on its face, to be ambiguous. . . . Imagine what future courts can do with that judge-empowering principle: Whatever has improbably broad, deeply serious, and apparently unnecessary consequences . . . is ambiguous! (4-5)
Bond thus supplies lower courts and lawyers with new grounds for finding statutory ambiguity. And, once a statute is deemed ambiguous, a variety of canons of statutory construction may come into play, including the federalism canon. Another canon of particular interest in criminal cases, of course, is the rule of lenity, which indicates that ambiguous statutes should be interpreted in the defendant’s favor.
Did the Court mean to unsettle statutory interpretation to this extent? Perhaps not. The Court seemed moved by the truly extraordinary gap between the historical horrors of chemical warfare—Roberts begins his opinion with an extended description of John Singer Sargent’s famous World War I painting, Gassed—and the pathetic character of Carol Anne Bond’s little revenge scheme. Much as defense lawyers are sure to quote various aspects of the opinion noted above, prosecutors are sure to respond with this line: “This case is unusual, and our analysis is appropriately limited.” (20)
I focus here on the statutory interpretation questions that governed the majority’s analysis, but the constitutional analysis of Justices Scalia, Thomas, and Alito—all concurring in judgment—also bears note. They make clear their desire to limit Congress’s power to make treaty-implementing law, and the arguments they rehearse in Bond are likely to be repeated in future cases in which the Court is less inclined to dodge the constitutional question.