Bond v. United States, a Jilted Wife and a Chemical Weapons Treaty

Somewhere in the federal government, a lawyer looked at a quarrel over a doorknob and thought: this is a job for an international arms-control treaty. I would pay good money to have been in that meeting. I would pay more to have seen the slide deck.

That is not a joke I made up for effect. It is the case. In Bond v. United States, the Department of Justice brought the heavy artillery of a chemical weapons law against a woman who had spread chemical irritants around a former friend's home and car. The woman had done something wrong. Nobody disputes that. The question was whether what she did was a matter for the same statute Congress wrote to carry out a treaty banning the weapons of the battlefield. Twice the Supreme Court took the case, and twice the government got a lesson in what the Constitution says about who prosecutes what.

I think it is one of the most instructive criminal cases of the last generation, and it is also one of the funniest, which is a rare combination. Let me tell it in order.

The facts

Carol Anne Bond was a microbiologist in Pennsylvania. She learned that her husband had fathered a child with her close friend, Myrlinda Haynes. Bond's response was to try to injure Haynes. She obtained two chemicals, one of which she had access to through her work and the other ordered over the internet, and she spread them where Haynes would touch them, on doorknobs around her home and on her car.

The plan was clumsy, and it failed in a way that is almost comic. Haynes noticed the powder, avoided most of it and reported the matter. She suffered a minor chemical burn on her thumb. That was the extent of her physical injury. Bond was caught, in part because the matter was reported and investigated, and her conduct was recorded.

This is where a normal case would take a normal path. A woman who goes after another with a harmful substance can be charged under the state's law of assault, or something like it. In Pennsylvania, as in every state, there are statutes against harassment, assault and reckless endangerment. The local prosecutor was available. The police were available. Everything necessary for ordinary justice was within reach.

Instead, the federal government stepped in. Bond was charged in federal court, among other things, under 18 U.S.C. 229, a statute enacted in 1998 as the Chemical Weapons Convention Implementation Act, to carry out the United States' obligations under the international treaty that bans chemical weapons. The statute makes it a federal crime to knowingly use a "chemical weapon," and it defines that term by reference to toxic chemicals, with a long definition meant to cover the weapons of war.

Bond entered a conditional guilty plea, reserving the right to appeal, and was sentenced to six years in prison.

The steelman: the government's best case

I always try to state the other side's argument in a way its defenders would accept, so here is the government's.

The statute is broad. It says what it says. It prohibits anyone from using a toxic chemical in a way that is not peaceful, and it defines "toxic chemical" as any chemical that can cause death, temporary incapacitation or permanent harm to humans through its chemical action. Bond used such a chemical against a person. Congress can write broad laws, and the Court's job is to apply what Congress wrote. Besides, the treaty exists, the treaty power is in the Constitution, and in Missouri v. Holland, in 1920, the Supreme Court upheld a federal law implementing a treaty about migratory birds, over a state's objection, on the grounds that a treaty can authorize what Congress might not otherwise do. If a treaty can reach birds, the government says, it can reach poison.

That is a clever argument. It is not a stupid one. It relies on the plain words of the statute and on a precedent that is still on the books. Let me tell you why it lost, and why the way it lost matters.

Round one, 2011: can she even raise the argument?

Bond's lawyers argued that the statute, as applied to her, took the federal government beyond the powers the Constitution gives it and into the reserved authority of the states. That is a Tenth Amendment argument: "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."

The government's first response was that Bond had no right to make it. The Tenth Amendment protects states, the argument went, and a private person has no standing to assert a state's rights. The lower court, the Third Circuit, agreed.

In 2011 the Supreme Court unanimously reversed. Justice Kennedy wrote that federalism is not only about states. It exists to protect individuals, by dividing power so that no one government holds all of it. When the national government acts outside its powers, the person it prosecutes may say so, and a state's consent or silence does not cure the injury. In other words, the Tenth Amendment is not a private club for governors. It belongs to the people too.

I want you to take note of what that holding means. It means that when an officeholder in Washington reaches past the Constitution, the citizen on the receiving end does not have to wait for a state attorney general to ride to the rescue. The citizen can invoke the structure of the Constitution as a defense. It is a modest-sounding ruling that did a great deal of work.

The case went back down, the Third Circuit ruled against her again on the merits, and Bond returned to the Supreme Court.

Round two, 2014: the statute does not mean that

In 2014 the Court ruled for Bond. Chief Justice Roberts wrote the opinion for the Court. It did not hold the statute unconstitutional, and the Justices split 6 to 3 on the reasoning while agreeing on the result. It did something a conservative should appreciate: it read the statute narrowly, to avoid the constitutional question.

The reasoning ran in four steps.

1. Start with the balance. Under our system, the states hold the general police power, the authority to punish ordinary crimes. The Constitution gives the federal government limited, enumerated powers. When a federal law would alter that balance and bring local crime into federal court, the Court expects Congress to say so clearly.
2. Look at the ordinary meaning of the words. The statute talks about chemical weapons. In the Court's view, the ordinary person would not call a minor assault with irritants a chemical weapons attack. It is a stretch to say Congress intended to turn every poisoning, every dumping of a toxic substance, into a federal weapons offense.
3. Notice what the government's reading would do. If the law covered Bond, it would cover nearly every use of a harmful chemical against a person, from a household cleaner to a pesticide, and federal prosecutors would have a roving commission over what had always been state law. The Court was not willing to assume Congress meant that without saying so.
4. So the statute does not reach this. The treaty is about the weapons of war, and the statute should be read to match. Bond's conduct was a local crime, and the remedy was in state court.

The Court's tone was dry and the point was sharp: the global need to prevent chemical warfare does not mean Washington gets to police the kitchen cupboard. The outcome was that Bond's conviction under the federal statute was reversed.

The concurrences: Scalia and the treaty power

Three Justices concurred only in the judgment, and the separate opinions are where the constitutional heart of the case lives.

Justice Scalia, joined by Justice Thomas (and in part by Justice Alito), thought the Court had gone about it the wrong way. He argued that the statute's words plainly did cover what Bond did, and that the Court had effectively rewritten it to save it. That is a respectable position, and a textualist can hold it. But then he asked the question the Court had avoided: if the statute says what it says, is it a valid law? His answer was that the treaty power does not give Congress authority beyond the powers listed in Article I. A treaty is made by the President with the Senate's advice and consent under Article II, but a treaty cannot, by itself, enlarge Congress's legislative powers. Implementing legislation has to rest on a power the Constitution gives Congress in its own right, and, in his view, a purely local poisoning does not.

Justice Thomas wrote separately to press a similar point from another direction: that the treaty power extends to matters of foreign relations, and that the notion that a treaty can erase the line between federal and state authority is a mistake that should be corrected. He also questioned Missouri v. Holland, as did Justice Scalia and Justice Alito.

I do not know whether the Court will eventually revisit that old case. What matters is that three Justices said, in print, that a treaty is not a master key to the Tenth Amendment. That idea has been waiting a long time to be heard, and Bond brought it into the open.

What it shows about overcriminalization

Now the larger lesson, and I want to put it in numbers.

1. The federal criminal code is enormous, and it grows. Over the years Congress has attached criminal penalties to a staggering range of conduct, and scholars have struggled to count the offenses. I will not give you a figure I cannot back up. The point is that nobody, including federal prosecutors, can recite the whole code.
2. Broad words invite broad use. A statute written to catch a terrorist with a nerve agent is a tool, and when a tool is available, someone will find a use for it. Bond is what happens when prosecutors treat the outer edge of a statute's words as its purpose, a pattern we also see in How RICO, a 1970 Law Against the Mob, Became a Weapon Against Gangs.
3. Duplication is not harmless. When federal and state law overlap, a prosecutor can choose the forum, the charges and the sentence. A person like Bond, who could have faced a state sentence for assault, faced a federal one for a weapons crime. That is a lot of discretion in one office.
4. Local crimes belong to local governments. The Founders designed a system in which the people closest to a problem handle it and answer to those who live with the result. A federal prosecutor in Washington is accountable to everyone and so, in practice, to no one in particular. We make a related argument about blanket non-prosecution in Prosecutorial Discretion Has Limits, and Blanket Non-Prosecution Crosses Them: discretion is real, and it needs limits in both directions.

There is a reasonable objection. Someone will say that Bond got off on a technicality and that she should have been punished. Two answers. First, she was not set free in the sense that matters. The Court's decision left state law fully intact, and the state could have punished her, and in the ordinary course would have. A reversal of a federal charge is not an acquittal of the wrongdoing. Second, the rule of law is not a technicality. It means the government has to prosecute under laws that actually say what the prosecutor claims. The line between a state assault and a federal weapons offense is exactly the line between local self-government and a distant authority.

The conservative lesson

I notice something about the way the case divided the Court. The result was unanimous, and the opinions split mainly on how to get there. The liberal justices and the conservative ones agreed that this prosecution went too far. That tells you the principle is not a partisan trick. It is a basic matter of how a limited government works.

The principle is also about us. It is easy to look at a story like this one and feel sorry for the defendant, and then forget that the same logic can be turned on anyone. The next person charged under a stretched federal statute may not be a woman with a grievance. It may be a farmer, a small business owner, a church volunteer or a man who did not know what he did was a crime. Law that is broad enough to catch a jilted spouse is broad enough to catch you. We press a related point about the courts and the limits of federal power in Gonzales v. Raich and the Marijuana Case That Split Conservative Justices, where the Commerce Clause played the same role the treaty played here.

Alexander Hamilton, in Federalist No. 17, observed that ordinary criminal law and the "administration of private justice" were things the people would naturally look to their state governments for, and that the national government would have little to gain from taking them over. That is a paraphrase, and the point stands: the founding design put the everyday work of punishing local crime close to home on purpose.

The case in brief

1. In Bond, federal prosecutors charged a woman who spread irritating chemicals on a rival's property under a statute implementing the Chemical Weapons Convention, rather than leaving the matter to state law.
2. In 2011 the Court unanimously held that an individual may raise a Tenth Amendment claim, because federalism protects people and not only states.
3. In 2014 the Court held that the statute does not reach a local assault of this kind, reading it narrowly to preserve the balance between federal and state power.
4. Justices Scalia, Thomas and Alito would have gone further and said a treaty cannot enlarge Congress's powers beyond those the Constitution lists.
5. The case is a warning about overcriminalization: broad statutes used at their outer edge put citizens at the mercy of prosecutors' choices.

What you can do: read the Tenth Amendment and Article I, section 8 on the Constitution page, then check your state legislature's website for how your own state defines assault, so you can see what local law already covers.