Tuesday, June 3, 2014

Supreme Court: Why a Love Triangle Isn’t Chemical Warfare

In 1997, the United States ratified the international Convention on Chemical Weapons, whose purpose was to prevent chemical warfare. The next year, in order to implement the convention, Congress enacted a law that prohibits the possession or use of “any chemical weapon.” (18 U. S. C. §229(a)(1).)

A Toxic Situation

In 2006, Carol Bond, a Pennsylvania microbiologist, learned that her best friend was pregnant. She then learned that her husband was the man who had impregnated Myrlinda Haynes. So, Bond secreted an arsenic-based compound from her place of work and headed online for a chemical often used in photography. Bond didn’t intend to kill Haynes with the toxic substances, but rather cause her former friend “an uncomfortable rash.”

Over the course of approximately seven months, Bond made 24 or more visits to Haynes’s home. During these trips, she would spread the chemicals on Haynes’s car door, mailbox, and door knob. 

Haynes avoided the easily visible chemicals almost each time they appeared. On the only occasion that she didn’t, she sustained a minor burn on her thumb, which required no more treatment than a rinsing with water.

After the authorities caught Bond in the act, federal prosecutors charged her with mail theft (they had her on video stealing an envelope from Haynes’s mailbox). Surprisingly, they also charged her with violation of Congress’s chemical weapons law. Bond pleaded guilty, but reserved her right to appeal, and her case made it all the way to the Supreme Court, which ruled on the case this week.

The Court Calls Foul

Bond didn’t argue that she didn’t employ chemical agents against Haynes, but that the chemical weapons law didn’t cover her conduct. (Bond v. U.S., 572 U. S. ____ (2014).) She also argued that Congress didn’t have the power to pass the law that implemented the international convention, but the Supreme Court sidestepped that issue. Chief Justice Roberts said that the case could be resolved without delving into congressional authority to effectuate treaties, because Bond was right that law didn’t apply in the first place.

The Court explained that federalism requires that certain powers be left to the states. (See State vs. Federal Prosecution.) In that vein, punishment of “local criminal activity”—for example, fistfights, DUIs, and even most homicides—has traditionally been the province of state government. For Congress to override the typical federal-state relationship and begin to punish local crime, its intent to do so must be clear. The Court determined that, when it came to the chemical weapons law, no such purpose was apparent.

If the Court, like the prosecutors who charged Bond, were to have given technical meaning to the law in question, virtually any kind of chemical could have constituted a weapon. Taking it to the logical extreme, Chief Justice Roberts invoked the scenario of a frustrated parent poisoning the family goldfish “with a few drops of vinegar.” That, he said, would constitute “a serious federal offense” under the government’s proposed interpretation.

What’s Reasonable

The Supreme Court remarked that an average person wouldn’t consider Bond’s behavior to constitute deployment of chemical weapons—and nor would Congress. The purpose of the law was to implement an international convention on warfare and terrorism, not to regulate the use of easily accessible products to pester an antagonist. The latter situation is well within the ambit of existing state law; Pennsylvania prosecutors, if so inclined, could have easily charged Bond with some variation of assault.

Though the high court’s most conservative Justices—Scalia, Thomas, and Alito—wanted to get into the issue of congressional power to implement treaties, that one will have to wait for another day. For the time being, the majority was content to explain that “[t]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard.”