By William Hornbeck, ACLR Featured Blogger

1/12/2014

            Bond v United States has it all: a set of facts reminiscent of Jerry Springer, two trips to the United States Supreme Court, and potentially massive implications for our federalist system. While this case will likely propel Carol Anne Bond into the federalism revolution pantheon alongside Alfonso Lopez, Christy Brzonkala, and Angel Raich, the Bond case could also have an immediate practical impact on the behavior of state and federal prosecutors. If the Bond case makes prosecutors more aware of how their actions can implicate federalism, it could help achieve some of the most defendant-friendly goals of the federalism revolution.

            Carol Anne Bond, an immigrant from Barbados, lived with her husband in a small Pennsylvania town 25 miles outside of Philadelphia.[1] When Bond, who was infertile, found out that her husband had impregnated her best friend Myrlinda Haynes, she snapped. Bond stole some dangerous chemicals from her job, and bought some other dangerous chemicals from Amazon. Bond then spread these chemicals on Myrlinda’s mailbox, on her doorknob, and on her car door. Although Myrlinda suffered a chemical burn on her thumb, she was mostly able to detect and wipe off the chemicals before touching the surfaces.

            When Myrlinda’s calls to the local police brought her no assistance, she called the post office. The post office installed cameras around Myrlinda’s mailbox and quickly caught Bond reapplying the chemicals. After Bond was arrested, the federal prosecutor brought two counts of interfering with the mails, which would carry a maximum sentence of five years.[2] However, the federal prosecutor also brought one count of using a chemical weapon in violation of the Chemical Weapons Convention[3] of 1997,[4] which when combined with the mail charges made for a total sentence of six years of prison and five years of supervised release. Bond pled guilty to the chemical weapons charge on the condition that she be allowed to challenge its constitutionality. Although Bond convinced the Supreme Court that she had standing to assert Tenth Amendment claims against her conviction,[5] the Third Circuit subsequently ruled against Bond on the merits— the weapons charge did not exceed Congress’ Treaty Clause powers.[6]

            While the Supreme Court took this case to hear the Treaty Clause issue, some have characterized the case as a prosecutor run amok.[7] However, this isn’t purely a case of prosecutorial discretion: Bond is challenging the treaty charge, not her prosecution generally; even if she wins, she will be resentenced based on the mail charges. If anything, this is a case of stacking charges, but nothing in Pennsylvania or federal law gives prosecutors an ethical or professional obligation not to stack charges.[8] Bond’s lawyer Paul Clement extols the state prosecutor’s decision not to bring any charges as a model exercise of prosecutorial discretion,[9] but this misrepresents how this prosecution came about. Although Pennsylvania and the United States are separate sovereigns, one sovereign will generally let the other prosecute if the other was initially involved.[10] Here, the federal prosecutor was involved from the start, as the state police had ignored Myrlinda’s requests for help, forcing the post office to get involved.[11] Clement does not press his point that nobody should have prosecuted Bond: his main argument is that if the state prosecutors had brought charges, Bond would have gotten “at most, 25 months.”[12]

            Clement’s arguments find more support in the federalism revolution cases, many of which also involved prosecutions. The idea is that one benefit of federalism is that it forces states to handle most prosecutions, preventing simultaneous or consecutive prosecution by both sovereigns and forcing states to make resource allocation decisions without backup from the better-funded federal prosecutors.[13] The principle is not exactly apropos to this case, as Bond would still be facing the uncontested mail charges. However, it is clearly motivating the Supreme Court in its federalism revolution cases and may play a large role in the Supreme Court’s opinion in this case.

            There are at least two possible ways for the federalism revolution to affect actual prosecutions: by making federal prosecutors think about the federalism implications of their actions, and by fostering increased communications between state and federal prosecutors. The former would be difficult to measure, and the later would be unlikely to happen given the inherent rivalry between the sovereigns. But it is worth looking at each in turn.

            It is possible that Bond will make federal prosecutors think about the federalism implications of their actions. If a prosecutor will be faced with plausible Tenth Amendment objections to some of their charges,[14]they will be more careful to only bring charges that are clearly within the federal government’s purview. In a case like Bond, that might have limited practical benefit: if the prosecutor brought only the mail charges, Bond still could have gotten up to five years. But in some cases, federalism might mean the difference between a federal prosecutor bringing any charges and the federal prosecutor deferring to the states.

            Bond is unlikely to lead to more cooperation or communication between state and federal prosecutors. First, if state prosecutors felt emboldened by another Supreme Court opinion extolling the virtues of deferring to local prosecutors, their conversations with federal prosecutors might be more confrontational than before. Second, outside the limited realm of joint task forces (usually limited to drug cases), state-federal cooperation and communication are limited because of the structural incentives against such partnerships. Federal prosecutors are both better funded and under less electoral pressure than most local prosecutors.[15] They can therefore be more discerning about which cases to prosecute, and when they fight with local prosecutors over control of a case they usually win. Because of the Supremacy Clause, laws like the Westfall Act[16] giving federal agents special immunity from local prosecution give federal law enforcement and prosecution a unique advantage over local prosecutors. The long history of both animosity and indifference between local and federal prosecutors would not be overcome by a single Supreme Court opinion.

            No matter how narrow the opinion is in the Bond case itself, the principles of federalism that the Supreme Court has emphasized previously and is likely to emphasize again might have an important impact on the real-world decisions of prosecutors. By turning prosecutorial discretion in cases potentially involving federalism from a prosecutor’s decision to a constitutional command, Bond might help achieve the defendant-protecting goals that the Supreme Court has been trumpeting since the federalism revolution began.