Thursday, June 16, 2011

Ginsburg Points the Way

Bond, like any other defendant, has a personal right not to be convicted under a constitutionally invalid law.
Really, you'd think it wouldn't require a Supreme Court decision to establish that rule.  And strictly speaking, the rule still hasn't been established since that sentence (the second) was taken from Ruth Bader Ginsburg's concurring opinion (joined by Stephen Breyer).  The Court's opinion, written by Kennedy and joined by the other 8 berobed ones, discusses federalism at length but never addresses that fundamental question.
Here's the plot as described by Justice Kennedy.
Petitioner Carol Anne Bond lived outside Philadelphia, Pennsylvania. After discovering that her close friend was pregnant and that the father was Bond’s husband, Bond sought revenge. Bond subjected the woman to a campaign of harassing telephone calls and letters, acts that resulted in a criminal conviction on a minor state charge. Bond persisted in her hostile acts, placing caustic substances on objects the woman was likely to touch, including her mailbox, car door handle, and front doorknob. Bond’s victim suffered a minor burn on her hand and contacted federal investigators, who identified Bond as the perpetrator.
The US is party to the a treaty, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction.  Although treaties have the force of law, they mostly don't count unless we actually enact a law implementing them.  (Yes, that's stupid.  No, it makes no sense.  Yes, it's a correct statement of the law.)  In this case, legislation was enacted.  Specifically, the Chemical Weapons Convention Implementation Act of 1998.
Now, without knowing more, you might think that the CWCIA of 1998 wouldn't apply to a grumpy housewife.  You might think it was about the military (or paramilitary) stockpiling chemical weapons or engaging in chemical warfare.  You might think that.  But the US Attorney's office didn't think so.
Carol was charged with violating the CWCIA.  She moved to dismiss the charges claiming that Congress had no constitutional basis for enacting the law and that it violated the Tenth Amendment.
You know how far that went with the district court.  She got 6 years.
In the Third Circuit Court of Appeals, Bond argued it again.  The court said she couldn't make the argument.  After all, the 10th Amendment protected the states from an overreaching federal government.  it didn't protect individuals.
So today, the unanimous Supremes ruled.
[W]here the litigant is a party to an otherwise justiciable case or controversy, she is not forbidden to object that her injury results from disregard of the federal structure of our Government.
Which doesn't really answer the question of whether Bond had a right not to be convicted (or, really, even charged) under an unconstitutional law.
But at least she can make the argument.
And if she can convince the lower courts that the law is unconstitutional, she can then try to convince them that her conviction should be vacated.
The Ohio Supreme Court decided last week that Ohio's statutory rape law is unconstitutional when applied to a child under 13 who has sex with another child under 13 (In re D.B.)  D.B.'s personal situation is clear.  His delinquency adjudication was vacated.  But what of any other kids in his situation? Who were convicted before?  Who are maybe serving time in the custody of the Department of Youth Services?  Who have records?  Who have other consequences?  Their convictions are unconstitutional.
Can they do anything about it?  Can they even complain about it?
These questions arise routinely.  The practice, the law, the whatever is declared unconstitutional.  Now what?  And can the victim of the unconstitutionality undo what happened?
The answer to date has been
Sometimes yes and sometimes no.
Which isn't really much help.
Ginsburg (joined by Breyer) at least offers a hint that the answer should always be yes.
Which is, I suppose, a step in the right direction.
Alas, it's only a step.

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