{"id":22731,"date":"2014-06-03T11:23:48","date_gmt":"2014-06-03T16:23:48","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=22731"},"modified":"2014-06-03T11:23:48","modified_gmt":"2014-06-03T16:23:48","slug":"bond-v-united-states-scotus-interprets-criminal-statute-narrowly-to-preserve-federal-state-balance","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2014\/06\/bond-v-united-states-scotus-interprets-criminal-statute-narrowly-to-preserve-federal-state-balance\/","title":{"rendered":"Bond v. United States: SCOTUS Interprets Criminal Statute Narrowly to Preserve Federal-State Balance"},"content":{"rendered":"

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\u2019s decision in Bond<\/em> 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 \u201cusual constitutional balance of federal and state power.\u201d (12) This interpretive principle is not a new one, but the Court applied it in an unusually aggressive fashion in Bond<\/em>. 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.<\/p>\n

The underlying facts in Bond<\/em> were a mix of the mundane and the bizarre. \u00a0<\/p>\n

Ms. Bond discovered that her husband had an affair with her best friend, and she decided to get revenge against the friend\u2014that was the mundane part. Her plot involved spreading chemicals on the friend\u2019s car door, mailbox, and doorknob with the intent of causing a skin rash\u2014that was the bizarre part.<\/p>\n

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\u2019s 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\u2019s.<\/p>\n

Despite the apparent mismatch between the purposes of the Implementation Act and the character of Bond\u2019s offense, her conduct did seem to fall within the literal terms of the Act\u2019s criminal prohibition on the knowing use of a \u201cchemical weapon.\u201d The statute defines \u201cchemical weapon\u201d as a \u201ctoxic chemical . . . except where intended for a purpose not prohibited under this chapter . . . .\u201d 18 U.S.C. \u00a7 229F(1)(A). \u201cPurposes not prohibited by this chapter\u201d is defined as \u201c[a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity.\u201d 18 U.S.C. \u00a7 229F(7). There was apparently no dispute that Bond\u2019s chemicals were toxic, and, despite Bond\u2019s argument to the contrary, it is hard to see how her use could be characterized as \u201cpeaceful.\u201d<\/p>\n

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.<\/p>\n

Six justices, led by Chief Justice Roberts, thought the constitutional question\u2014relating to Congress\u2019s power to adopt treaty-implementing legislation\u2014could and should be avoided. Notwithstanding the broad statutory definition of \u201cchemical weapon,\u201d the Roberts-led majority interpreted the law only to reach chemicals \u201cof a sort that an ordinary person would associate with instruments of chemical warfare,\u201d taking into account \u201cboth the particular chemicals that the defendant used and the circumstances in which she used them.\u201d (15) Bond\u2019s conduct thus fell beyond the statute\u2019s coverage: the \u201ccircumstances of Bond\u2019s offense\u2014an act of revenge born of romantic jealousy, meant to cause discomfort, that produced nothing more than a minor thumb burn\u2014[do not] suggest that a chemical weapon was deployed.\u201d (16)<\/p>\n

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<\/em>, 501 U.S. 452 (1991), which Bond<\/em> quoted as follows: \u201c\u2019it is incumbent upon the federal courts to be certain of Congress\u2019 intent before finding that federal law overrides\u2019 the \u2018usual constitutional balance of federal and state powers.\u2019\u201d (12) Bond<\/em> reformulated this federalism canon for criminal cases as follows:<\/p>\n

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)<\/p><\/blockquote>\n

Again, I expect that many federal defense lawyers will have occasion to quote this language in coming years.<\/p>\n

Even requiring a clear statement of congressional intent to reach Bond\u2019s conduct, however, it would seem that Congress supplied such a statement through its broad definition of \u201cchemical weapon.\u201d 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.<\/p>\n

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\u2019s treatment of this question:<\/p>\n

In this case, the ambiguity derives from the improbably broad reach of the key statutory definition given the term\u2014\u201cchemical weapon\u201d\u2014being 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\u2014a treaty about chemical warfare and terrorism. (14)<\/p><\/blockquote>\n

Ambiguity thus came, in large part, from the gap between ordinary and dictionary meanings of \u201cweapon\u201d and \u201cchemical weapon\u201d and the statutory definition of \u201cchemical weapon\u201d (15-16). As Scalia observed, this was a remarkable move by the Court:<\/p>\n

There is no opinion of ours . . . which says, or even suggests, that \u201cdissonance\u201d 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: \u201cWhen a statute includes an explicit definition, we must follow that definition, even if it varies from that term\u2019s ordinary meaning<\/em>.\u201d Stenberg v. Carhart<\/em>, 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 \u201cdissonance\u201d between the statutory definition and the ordinary meaning of the defined word, the latter may prevail. (6)<\/p><\/blockquote>\n

In addition to the ordinary meaning of \u201cchemical weapon,\u201d the Court also based its finding of statutory ambiguity on \u201cthe deeply serious consequences of adopting [the Government\u2019s] boundless reading\u201d of the Implementation Act:<\/p>\n

The Government\u2019s 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\u2019s domain. (17, citations and internal quotation marks omitted)<\/p><\/blockquote>\n

Again, Scalia points out the novelty of the Court\u2019s reasoning:<\/p>\n

[The Court] starts with the federalism-related consequences of the statute\u2019s meaning and reasons backwards, holding that, if the statute has what the Court considers a disruptive effect on the \u201cfederal-state balance\u201d 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<\/em>! (4-5)<\/p><\/blockquote>\n

Bond<\/em> 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\u2019s favor.<\/p>\n

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\u2014Roberts begins his opinion with an extended description of John Singer Sargent\u2019s famous World War I painting, Gassed\u2014and the pathetic character of Carol Anne Bond\u2019s 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: \u201cThis case is unusual, and our analysis is appropriately limited.\u201d (20)<\/p>\n

I focus here on the statutory interpretation questions that governed the majority\u2019s analysis, but the constitutional analysis of Justices Scalia, Thomas, and Alito\u2014all concurring in judgment\u2014also bears note. They make clear their desire to limit Congress\u2019s power to make treaty-implementing law, and the arguments they rehearse in Bond<\/em> are likely to be repeated in future cases in which the Court is less inclined to dodge the constitutional question.<\/p>\n

Cross posted at Life Sentences.<\/p>\n","protected":false},"excerpt":{"rendered":"

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\u2019s decision in Bond is noteworthy for its approach to the interpretation […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[126,30,53,122,24],"tags":[],"class_list":["post-22731","post","type-post","status-publish","format-standard","hentry","category-constitutional-law","category-criminal-justice","category-federalism","category-public","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/22731","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=22731"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/22731\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=22731"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=22731"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=22731"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}