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October 19, 2010

"A 10th Amendment Drama Fit for Daytime TV Heads to the Supreme Court"

The title of this post is the headline of this piece by Adam Liptak in today's New York Times. Here are excerpts (with the sentencing angle emphasized below):

[The Supreme Court] has decided to consider what to do about a woman hellbent on poisoning her best friend. The woman, Carol A. Bond of Lansdale, Pa., was at first delighted to learn that her friend was pregnant.  Ms. Bond’s mood darkened, though, when it emerged that her husband was the father.  “I am going to make your life a living hell,” she said, according to her now-former friend, Myrlinda Haynes.

Ms. Bond, a microbiologist, certainly tried.  On about two dozen occasions, she spread lethal chemicals on her friend’s car, mailbox and doorknob.  Ms. Haynes, who managed to escape serious injury, complained to the local police.  They did not respond with particular vigor.  After checking to see whether the white powder on her car was cocaine, they advised her to have it cleaned.

Federal postal inspectors were more helpful.  They videotaped Ms. Bond stealing mail and putting poison in the muffler of Ms. Haynes’s car.  When it came time to charge Ms. Bond with a crime, federal prosecutors chose a novel theory.  They indicted her not only for stealing mail, an obvious federal offense, but also for using unconventional weapons in violation of the Chemical Weapons Convention of 1993, a treaty aimed at terrorists and rogue states.

Had she been prosecuted in state court, Ms. Bond would most likely have faced a sentence of three months to two years, her lawyers say.  In federal court, she got six years.  Ms. Bond’s argument on appeal was that Congress did not have the constitutional power to use a chemical weapons treaty to address a matter of a sort routinely handled by state authorities.

She relied on the 10th Amendment, the one so beloved by Tea Party activists.  It says that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

A unanimous three-judge panel of the federal appeals court in Philadelphia said Ms. Bond’s argument was a serious one of “first impression.”  Then the court ducked answering the question by saying Ms. Bond was not entitled to raise it.  Only states, it said, can mount 10th Amendment challenges.

Paul D. Clement, a solicitor general in the administration of President George W. Bush, now represents Ms. Bond. He called the idea that Ms. Bond lacks standing to challenge the law under which she was imprisoned “startling” and “absurd.”

More broadly, Mr. Clement wrote, the Bond case is an instance of an issue that has lately united conservatives, libertarians and liberals.  They say there are too many federal crimes, that they are often simultaneously vague and harsh, and that they undermine state authority to maintain public safety.  Mr. Clement said his client’s poisonous rampage was not “successful or particularly sophisticated.”

“Domestic disputes resulting from marital infidelities and culminating in a thumb burn are appropriately handled by local law enforcement authorities,” Mr. Clement wrote. “Ms. Bond’s assault against her husband’s paramour did not involve stockpiling chemical weapons, engaging in chemical warfare” and the like, he added.

In the appeals court, federal prosecutors embraced the idea that Ms. Bond was powerless to attack her conviction on 10th Amendment grounds. But the federal government reversed course in the Supreme Court. “A criminal defendant has standing to defend herself by arguing that the statute under which she is being prosecuted was beyond Congress’s Article I authority to enact,” Acting Solicitor General Neal K. Katyal told the justices.

Ms. Bond has been in prison for more than three years. Given that two sides agree her case was mishandled, the Supreme Court might have summarily reversed the appeals court’s decision.  Instead, it will hear arguments in the case in the next few months and probably issue a decision by June.  That means the case of the poisoned paramour, known formally as Bond v. United States, No. 09-1227, will be among the more closely watched this term.

I am not an expert on standing or on the Tenth Amendment, so I have no keen sense of how this case will cash out before SCOTUS.  But while the difference between possible state and federal sentencing outcomes seems only tangential to the formal legal issues in Bond, the difference does impact the equities of the case and perhaps will also impact how the Justices decide to develop the law.

October 19, 2010 at 08:58 AM | Permalink


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Does the Erie Doctrine apply here, more than the 10th Amendment? The Ninth Amendment reverts rights to the person. The 10th reverts them to the states. So the decision seems correct, on first impression.

Posted by: Supremacy Claus | Oct 19, 2010 9:44:51 AM

What ever happened to the state law charge of attempted murder?

Posted by: ohwilleke | Oct 19, 2010 11:11:38 AM

This case is largely being misreported. The merits of the Tenth Amendment issue are interesting, but they are not before the Court for decision. The only question presented in the cert. petition (and thus the only question the Court is prepared to decide at this time) is the standing question--whether a defendant convicted under a federal criminal statute has standing to raise a Tenth Amendment challenge to that statute.

As Kent S. covered in comments to an earlier post, the answer to that seems a pretty easy yes. The more interesting Tenth Amendment question should then be remanded for decision by the Third Circuit, which ducked it the first time around.

Posted by: Def. Atty | Oct 19, 2010 11:48:15 AM

Findlaw also has an interesting essay on this case; Michael Dorf thinks it is something of a no-brainer / wonders why they even took it for full argument and uses it to raise another issue not involved.

Posted by: Joe | Oct 19, 2010 2:16:38 PM

Note also that in its brief in opposition to granting cert, the SG’s office agreed with Petitioner that a criminal defendant has standing to bring a Tenth Amendment challenge.
See http://sblog.s3.amazonaws.com/wp-content/uploads/2010/09/BIO.09-1227.pdf

For the second time this Term the Court did not GVR the case in light of the government's new position, as requested by the SG. (The other case being Pepper).

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