(from The Washington Post, February 22, 2011)
The cataclysmic events that led Carol Anne Bond to prison and now to the Supreme Court began with thrilling news: Her best friend was pregnant.
That was followed by devastating news: Bond’s husband, Clifford, was the baby’s father.
Rage came next.
Carol Bond, a trained microbiologist, set out to poison Myrlinda Haynes over several months with a rare and potentially lethal blend of toxic chemicals. But Haynes, who received only a minor injury, was unable to persuade local law enforcement officials to act on her suspicions. So she called in the feds.
The U.S. attorney’s office in Philadelphia went after Bond with a “sledgehammer,” according to her lawyer, former Bush administration solicitor general Paul D. Clement: Prosecutors sent Bond to prison under the anti-terrorist statutes meant to enforce an international chemical-weapons treaty.
So more is at stake at the Supreme Court than simply a woman scorned and inventive lawyers. Bond says the federal government had no right to indict her, and she bases her claim on the 10th Amendment, the Tea Party favorite that specifies the limits of federal power.
As a result, Bond has drawn support from Phyllis Schlafly’s Eagle Forum, the libertarian Cato Institute, gun owners and the attorneys general from six states, who not so coincidentally are among those suing the federal government over President Obama‘s health-care act.
The issue for the justices is whether an individual has the right to sue on the claim that the federal government has trespassed in areas reserved for the states – a subject of considerable interest to those who want to challenge the actions of Congress.
The U.S. Court of Appeals for the 3rd Circuit said individuals don’t have such a right on their own, without the involvement of a state.
At oral arguments Tuesday, the justices seemed inclined to say that a criminal defendant such as Bond should at least get the chance to argue the statute is unconstitutional.
But they seemed divided on whether they should give lower courts guidance on how Bond could win or how to decide whether the law is too broad.
Clement said before the arguments that even if the court does not rule broadly on the 10th Amendment, it should at least give Bond the chance to argue that her vengeful actions should never have been prosecuted under the auspices of a treaty with a daunting title – the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.
“If Chemical Ali wanders into your district, this is your statute,” Clement said, referring to Ali Hassan al-Majid, the executed Iraqi war criminal.
“But it’s not for a domestic case in Bucks County.”
24 poisoning attempts
News that her best friend was carrying her husband’s child was too much for Carol Anne Bond, who was unable to conceive. It also brought back painful memories of her father’s infidelities, according to her attorneys, which had caused Bond’s mother to leave her father and move the family from Barbados to the United States.
Bond’s emotional breakdown caused her to lose her hair and suffer panic attacks. But her enmity appears to have been directed mostly at Haynes, a fellow island immigrant who lived nearby in the Philadelphia suburbs. (Carol and Clifford Bond remain married, according to one of her lawyers, despite her incarceration in federal prison in West Virginia.)
The first phase of her campaign included slashing photos and placing phone calls to Haynes with threats such as “I [am] going to make your life a living hell” and “Dead people will visit you,” according to court documents.
Bond was convicted in 2005 and fined on a minor state charge of harassment.
She was undeterred. From November 2006 through June 2007, she tried to poison Haynes on 24 occasions. Bond stole an arsenic-based chemical – 10-chloro-10H-phenoxarsine – from her employer, a chemical manufacturer. She went online and ordered potassium dichromate, a corrosive chemical than can destroy human tissue.
While her attorneys say there is no evidence that Bond ever meant to kill Haynes or her infant daughter, less than a teaspoon of either chemical ingested can be lethal.
Bond spread the substances on surfaces that Haynes was sure to touch, such as her front door, car door and mailbox. Fortunately for Haynes, the chemicals were clearly visible, and she suffered only a burn on her thumb.
Haynes called local law enforcement more than a dozen times when she discovered the chemicals, but officers were unimpressed. One told her that the substance might be cocaine and that she should clean the surfaces regularly.
Frustrated, Haynes told her letter carrier. He informed postal inspectors, who shot video of Bond spreading the chemicals and took the case to federal prosecutors.
Bond, 40, pleaded guilty to four counts of violating the domestic statutes required to enforce the chemical arms treaty.
Despite her protests that using the law to prosecute her crimes was unconstitutional, she was sentenced in 2008 to six years in prison and five years of supervised probation, fined $2,000, and ordered to pay nearly $10,000 in restitution.
Her attorneys say if she had been charged under aggravated-assault laws in Pennsylvania, the punishment would have been three to 25 months.
Bond’s attorneys argued at the appeals court, as they do at the Supreme Court, that the statute “exceeded the federal government’s enumerated powers, violated bedrock federalism principles guaranteed under the 10th Amendment and impermissibly criminalized conduct that lacked any nexus to a legitimate federal interest.”
But the appeals court never decided that question. Instead, it said Bond lacked the right – “standing,” in legal parlance – to challenge her conviction.
Basing its decision on a 1939 Supreme Court ruling, the appeals court said that only states can bring challenges under the 10th Amendment – which says that any power not delegated by the Constitution to the federal government “are reserved to the States . . . or to the people.”
The federal government, which is the defendant in the case, agreed with the appeals court’s decision at first, but it now argues that Bond should have standing to sue.
Still, the government continues to assert that Congress was fully within its power to write a law granting the federal government power to enforce the treaty.
Stephen R. McAllister, a University of Kansas law professor who also serves as the state’s solicitor general, was assigned by the justices to defend the appeals court’s decision.
He tells the court that its 1939 decision was the correct one – the 10th Amendment speaks to states’ rights.
“Although [Bond] may not be a professional terrorist and did not, for example, send toxic chemicals through the mail,” McAllister said in his court brief that her legal challenge could make it difficult to prosecute others with terrorist intentions.
The conservative groups that have filed briefs on Bond’s behalf urge the court to decide more than just the question of whether Bond has standing.
And the brief for the states said the requirements for who can challenge a federal statute under the 10th Amendment should be broad.
It is filed for Alabama, Colorado, Florida, South Carolina, Texas and Utah by Washington lawyer David B. Rivkin Jr., who is representing those states and others in challenging the federal health-care act as an intrusion on the states.
His brief said the states “welcome the efforts of private citizens” to challenge federal actions.
“It would be incongruous if the states alone could challenge Federal actions upsetting this critical balance, because its purpose was and is to guard and vindicate the rights of individual citizens.”
The case is Bond v. U.S.