November 6, 2013

Minimizing the crimes of women (in a serious case about federalism).

Here's how WaPo's Robert Barnes begins his report about a case of attempted murder:
A melodramatic love triangle begat a ham-handed revenge poisoning. That led to what one Supreme Court justice called an “unimaginable” federal prosecution of the scorned wife under a law enacted to implement a global chemical weapons treaty.
As long as the victim didn't actually die, it's just some kind of joke?

Now, there is a problem with the feds taking over this prosecution, and that should be the focus of the story about this case. But you should see how outrageous it is to diminish the criminal behavior in this gendered fashion.
Carol Anne Bond, a Pennsylvania microbiologist... ordered a rare blend of chemicals, partly off the Internet, and over the next several months tried to poison [Myrlinda] Haynes 24 times by putting them on her doorknob, car and, critically, mailbox.
Just some nutty lady's bumbling parry in a cat fight?
Federal prosecutors charged Bond with violating the 1998 Chemical Weapons Convention Implementation Act, a law based on the chemical weapons ban treaty that is signed by all but four of the world’s nations.
The problem here is not the unseriousness of attempted murder. It's that murder is traditionally left to the states, and the federal government is — at least theoretically — a government of limited, enumerated powers. With this important constitutional principle at stake, Bond is represented by the great ex-Solicitor General Paul Clement:
Clement...  said that if the law implementing the treaty “really does reach every malicious use of chemicals anywhere in the nation, as the government insists,” then it violates the “bedrock principle of our federalist system that Congress lacks a general police power to criminalize conduct” that does not have distinctly federal concern....
[Justice Elena Kagan] said the treaty gave Congress the power to pass implementing legislation. “So you have to find a constraint on the treaty power. Where does it come from?” she demanded.

Justice Sonia Sotomayor worried about the courts hamstringing efforts to deal with terrorism. 
Writing tip for Barnes: If you've already got "ham-handed," don't use "hamstringing." Too much ham.
“It would be deeply ironic that we have expended so much energy criticizing Syria, when if this court were now to declare that our joining or creating legislation to implement the treaty was unconstitutional,” she said.
Now, we're getting to the real meat of it. The government was represented by the current Solicitor General, Donald B. Verrilli Jr.
Chief Justice John G. Roberts Jr., who posed no questions to Clement, asked Verrilli if it would be possible for the president to join a treaty that gives national governments all powers and for Congress then to put in place such legislation.

When Verrilli said that would be unimaginable, Justice Anthony M. Kennedy shot back: “It also seems unimaginable that you would bring this prosecution.”

That led the conservative justices — plus Justice Stephen G. Breyer, who usually sides with the liberals — to unleash a barrage of hypotheticals of what could be prosecuted under the broad law, which covers chemicals that could harm humans or animals: a wheelbarrow full of kerosene; a poisoned potato given to a horse; the performance-enhancing drugs allegedly used by cyclist Lance Armstrong.

“Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?” Alito asked Verrilli, drawing laughter from the court’s spectators. He explained that chocolate Halloween candy is “poison to dogs, so it’s a toxic chemical” under the act.

Verrilli chafed, saying, “This is serious business.”
Yes, it truly is. It's easy to see Kennedy's point: The federal government shouldn't have chosen to prosecute this case. But it did, and now what? It's easy to think: The central government needs ample power to do everything that might need to be done at a national level and it should refrain from using that power to deal with matters that are better left to the states.

But it doesn't refrain.

22 comments:

betamax3000 said...

Re: "over the next several months tried to poison [Myrlinda] Haynes 24 times by putting them on her doorknob, car and, critically, mailbox."

That Dedication to Love and Scorn is Kinda Hot. I Like Chicks Like That.

Michael K said...

As we have recently seen, there is no limit to the competence of the federal government so I expect to see new traffic laws being enacted. By regulation, of course.

El Pollo Raylan said...

Carol Anne Bond, a Pennsylvania microbiologist... ordered a rare blend of chemicals, partly off the Internet, and over the next several months tried to poison [Myrlinda] Haynes 24 times by putting them on her doorknob, car and, critically, mailbox.

The doorknob antic reminded me of Dan Savage.

Ann Althouse said...

It reminded me of the 1984 Rajneeshee bioterror attack.

rhhardin said...

They've outlawed the poisoned pawn by treaty as well.

That's when the Russians started losing.

EDH said...

Not sure I have a problem with this federal prosecution.

Is this a straight federal murder charge taking the case away from the state, or a charge about acquiring "a rare blend of chemicals, partly off the Internet" (and presumably across state lines) for the purpose of weaponization, as well as tampering with the federal mail?

Bond ordered a rare blend of chemicals, partly off the Internet, and over the next several months tried to poison Haynes 24 times by putting them on her doorknob, car and, critically, mailbox.

Haynes suffered nothing more than a burn on her fingers, and local prosecutors did not pursue charges. They suggested she call in federal officials, and postal inspectors set up surveillance that identified Bond as the assailant.

Federal prosecutors charged Bond with violating the 1998 Chemical Weapons Convention Implementation Act, a law based on the chemical weapons ban treaty that is signed by all but four of the world’s nations.


Isn't this the case of a federal prosecution of last resort (the local prosecutor would not pursue charges) and not the feds preempting the state prosecution of attempted murder and lesser includeds?

As a matter of federalism, I'd also say it's preferable to the kind of double jeopardy federal civil rights prosecutions that follow a state court acquittal, often in response to public opinion and activist protesting.

chuck said...

This case needs to be taken to the Security Council.

Why can't there just be a law against attempted murder? All these 'hate crime', 'chemical weapons', etc., toenail clippings just just get in the way and provide salary for prosecutors and fees for the defense. And for the rest of us, respect for the law is replaced by contempt.

Hagar said...

Messing with a mailbox is a federal offense, and the government should have stuck with that. Violating a treaty ban on chemical weapons warfare is just silly.
And did not there use to be some common law rules about lawyers bringing frivolous law suits?

Jeff said...

Presumably the local prosecutor has some reason for not pursuing an attempted murder charge. Even if he or she doesn't, it's still no business of the Feds.

About the treaty aspect of this, IANAL, but I always thought the governing principle was that no treaty can override the Constitution. Federalism is not just a tradition, it's inherent in the Constitution. If a local prosecutor decides a case is not worth pursuing, the federal courts should not allow federal prosecutors to take up the cudgel. The fact they often do allow it is yet another sign of how far we have deviated from the founders' design.

EDH said...

Just some nutty lady's bumbling parry in a cat fight?

Yeye cat fight!

Larry J said...

Bond ordered a rare blend of chemicals, partly off the Internet, and over the next several months tried to poison Haynes 24 times by putting them on her doorknob, car and, critically, mailbox.

Her real crime, at least to the federal government, is endangering a postal worker. There are many federal statues where a person can receive the death penalty for killing a government employee. The rest of us are just peons but all must bow before the government.

Smilin' Jack said...

Presumably the local prosecutor has some reason for not pursuing an attempted murder charge. Even if he or she doesn't, it's still no business of the Feds.

People who are murdered can't buy health insurance, and thus the Commerce Clause justifies federal action.

Sean Gleeson said...

I think you are being unfair to Robert Barnes and the myriad other journalists who are covering Mrs. Bond's crime in a less than entirely serious tone. At least, I do not think any sexual double standard is at fault.

People like to laugh at incompetent criminals. I know I've enjoyed videos of, e.g., burglars falling through drop-ceilings, things like that. The "dumb crime" story seems to permit laughter if (1) the plan was a stupid one, and (2) the crime was foiled or the criminal was quickly caught, and (3) nobody, not even the criminal, was killed or gravely harmed. In most such stories that I come across, the criminals are men.

RecChief said...

why does it look to me as if the only reason the Feds decided to prosecute was to set a precedent for the weapons treaty that some claim would make the 2nd amendment moot? By subverting federalism.

El Pollo Raylan said...

Ann Althouse said...
It reminded me of the 1984 Rajneeshee bioterror attack.

Yes, yes. They're all bioterrorists (or criminals in modern parlance).

William said...

This is the second time within recent memory that a female microbiologist has committed a deranged act of mortal terror. I don't like to engage in unfair gender stereotyping, but what is it about female microbiologists? Perhaps such women should be placed under the supervision of male macro economists.....If you extrapolate the probabilities you are far more likely to be murdered by a female microbiologist than by a male jiihadi. Thank God we have the kind of Justice Dept. that stays on top of such eventualities.

Tom said...

The Chemical Weapons Band Treaty is about WMD (before it was called WMD). WMD is a Weapon of Mass Destruction. Putting some chemicals on a mail box is going to hurt one, maybe two people. That's not good and it's a crime. But it ain't WMD and it doesn't violate any treaty. But it does violate the 10th Amendment and the US Attorney should get his head thumped by the Supreme Court.

Further, if anyone believes this is about anything other than a blatant attempt to expand the powers of the federal government by bypassing the 10th Amendment, please, by all means, argue that point.

Sam L. said...

What? No prosecution for trying to kill a postal worker? Visitors to Myrlinda's house? Her auto mechanics?

Richard Dolan said...

Important case and interesting oral argument. Looks like at least a 6-3 reversal.

Ann's final comment: "The central government needs ample power to do everything that might need to be done at a national level and it should refrain from using that power to deal with matters that are better left to the states. But it doesn't refrain."


Rather than thinking about the issue in terms of the "national government," perhaps a better starting point would be the "national bureaucracy." This is a case that began in the US Attys office in WD Pa, probably caught the interest of some AUSA, who then rousted around in Title 18 looking for a federal statute he could use to indict the case. Having latched on to the Chemical Weapons implementation statute, the case just wended its merry way up the chain from there.

The Althousian notion that the "national government" should refrain from pushing defensible positions over the edge into ridiculous ones is, in reality, the idea that all those AUSAs as a group should exercise such restraint. But that's an exercise in wishful thinking, and ignores all of the usual reasons why bureaucracies and those who inhabit them follow their own internal laws. The first of them is always, always to expand one's turf; and the second is to always, always defend the home team; and ther third is always to have one eye out for self-promotion. For any bureaucracy, the world is inherently Manichean -- it's us vs. them -- while the bureaucracy also functions as a ladder to someplace better (career-wise, if you want it).

Restraint in that context is not likely to happen as a general rule, and certainly not consistently. Given that federal criminal statutes today are written in astonishingly broad and vague terms, all it takes is an imaginative AUSA, and a bureaucratically inclined set of superiors, for a criminal case to become an exercise in turf-expansion. Courts typically look at the statutory language, and then bless whatever turf-expanding interpretation the Govt (really the AUSA) has come up with so long as it fits, more or less, with the statute's words.

That seems to be what happened in Ms. Bond's case, at any rate.

Amazing, really, that no one in the Executive Branch, even at the highest levels of DOJ, could see this train wreck coming. Even more amazing that no one in the lower courts had the sense to see it for the preposterous extension of federal power that it is.

hombre said...

The case must have received a lot of publicity. As I recall, that was the standard for federal prosecutors to stick their noses where they didn't belong.

Kirk Parker said...

Althouse,

"The central government needs ample power to do everything that might need to be done at a national level..."

No no no no no! And you a lawprof! A conlaw prof!

The central government needs ample power to do what it has been specifically been granted the authority to do! None of this "to regulate what needs regulating" bullshit for us Americans, please!

If we as a people decide that there are other things the central government should be doing that it currently doesn't have the authority to do... ... ... well, that's what the amendment process is for.

southcentralpa said...

If all fun and games until one of those silly gals keels over ...