Today the U.S. Supreme Court will consider the connection between an international convention to eliminate chemical weapons and a suburban Philadelphia love triangle. Remarkably, the first and apparently only person prosecuted under the United States’ implementation of the 1993 Chemical Weapons Convention is Carol Anne Bond, a Lansdale, Pennsylvania, woman who used chemical irritants to cause a slight burn on the thumb of Bond’s formerly close friend after the friend bore Bond’s husband’s love-child. Today the Supreme Court hears oral arguments in the case (Bond v. United States).
Neither Bond nor her attorneys dispute that what she did was wrongful and dangerous and that punishing her as a criminal is just. Indeed, she pled guilty to two counts of stealing some of her rival’s mail out of her mailbox, and she is not challenging those charges. Tampering with the U.S. mails has long been recognized as a proper subject for criminalization by the federal government.
But Bond asserts that although her use of the chemicals should have subjected her to a state prosecution for aggravated assault, it should not subject her to criminal punishment under a federal statute designed to punish those who violate the terms of the Chemical Weapons Convention. The international organization that has responsibility for implementing the “Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction” states that the convention’s purpose is “to eliminate an entire category of weapons of mass destruction by prohibiting the[ir] development, production, . . . transfer or use” by signatory nations.
These are highly laudable goals, and anyone actively working to develop or acquire chemical weapons, such as to commit a mass terrorist attack or similar act of war, should be severely punished. On the flip side, the 50 states investigate, prosecute, and punish 95 percent of the violent crimes committed in America each year. The states are fully competent to carry out their criminal-justice responsibilities by meting out appropriate punishment to anyone who commits assault, aggravated assault, murder, or attempted murder using poisons or other chemicals.
Mirroring the language of the Convention, however, federal law defines “chemical weapon” quite broadly to include any “toxic chemical and its precursors” not used for a “peaceful purpose related to industrial, agricultural, research, medical, or pharmaceutical activity or other activity.” Even ordinary household chemicals fall within this definition if federal authorities decide the chemicals are not being acquired or used for an acceptable “peaceful purpose.” Therefore, it is at least debatable whether the Constitution grants the federal government power to treat as a chemical weapons offense, punishable by up to life imprisonment, every non-peaceful act that involves some chemical.
More directly to the point, Bond’s sole argument to the Supreme Court is that she should at least have the opportunity to litigate in federal court whether she was convicted under an unconstitutional statute. Invoking the constitutional doctrine of “standing,” the federal court that heard Bond’s initial appeal held that she could not challenge the chemical weapons statute as exceeding Congress’s enumerated powers or violating the Tenth Amendment (which says that all powers not granted by the Constitution to the federal government are “reserved to the States respectively, or to the people”). The Philadelphia-based Third Circuit Court of Appeals relied on an expansive reading of one sentence from a 1939 Supreme Court decision involving the Tennessee Valley Authority and held that only the States themselves may challenge a law that allegedly violates the Tenth Amendment. According to the Third Circuit, individuals convicted and imprisoned under such an unconstitutional law have no standing to challenge the law in court.
But now that the case is before the Supreme Court, even the United States agrees that the Third Circuit wrongfully denied Bond the opportunity to challenge the constitutionality of the criminal offense in the chemical weapons statute. The Justice Department appropriately “confessed error,” abandoned the arguments that federal prosecutors had made in the lower courts and, in its brief for the Supreme Court, agreed with Bond that the decision of the appeals court should be reversed.
Those who have filed briefs as “friends of the Court” in support of Bond’s right to challenge the constitutionality of the chemical weapons statute in court include several prominent conservative and libertarian organizations, as well as the states of Alabama, Colorado, Florida, South Carolina, Texas, and Utah. Indeed, because the United States confessed error, the only brief to the Supreme Court opposing Bond’s right to appeal the statute’s constitutionality had to come from a “friend of the Court” appointed to defend the government’s “win” in the courts below.
If Bond wins before the Supreme Court, the next stop for her case will probably be back before the Third Circuit, where this time the federal appeals court will have to decide the merits of her claim that the criminal offense in the chemical weapons statute is unconstitutional. Regardless of who wins there, the case seems likely to end up before the Supreme Court once again.
