Prosecutorial Discretion in Bond

Who would have thought that Bond v. United States — today’s much-awaited decision involving the Chemical Weapons Convention — would have so much to do with prosecutorial discretion? Yet prosecutorial discretion appeared repeatedly in the Court’s consideration of the case, serving different purposes each time.

First, the fact of prosecutorial discretion is the critical factor explaining why Bond even arose. By way of background, Bond used certain harmful chemicals to retaliate against a romantic rival. Bond was then prosecuted for violating federal legislation implementing the Chemical Weapons Convention. In Bond, the Court relied on federalism canons to conclude that the implementing legislation didn’t reach Bond’s conduct. A major theme of the majority opinion is that Bond is an “unusual” and “curious case” that is “worlds apart” from what anyone would have associated with the Chemical Weapons Convention or its implementing legislation. Another major theme is that the “common law assault” at issue in Bond would normally be handled by state and local government. But if that’s so, then why was the defendant federally prosecuted? The answer is that the federal prosecutors involved in the case concluded — contrary to the intuitive view — that the Convention’s implementing legislation properly applied.

Second, prudent use of prosecutorial discretion was a source of comfort to the majority, since it meant that the Court’s statutory holding wouldn’t have harmful effects. “[W]ith the exception of this unusual case,” Bond noted, “the Federal Government itself has not looked to section 229 to reach purely local crimes.” Instead, federal authorities had previously used the relevant statutory authority primarily to prosecute things akin to “assassination, terrorism, and acts with the potential to cause mass suffering,” and the Court declined to “disrupt the Government’s authority to prosecute such offenses.” In a related discussion, the Court relied on the constitutional value of state prosecutorial discretion to deflect an argument raised by the federal government. In justifying its decision to prosecute in Bond, the United States argued that state and local prosecutors had fallen down on the job in that they had “charged Bond with only a minor offense based on her ‘harassing telephone calls and letters’ and declined to prosecute her for assault.” The Court’s response was curt: “we have traditionally viewed the exercise of state officials’ prosecutorial discretion as a valuable feature of our constitutional system.”

Finally, the federal government’s failure to exercise wise prosecutorial discretion in Bond was, to a great extent, the problem that the Court perceived and chose to solve. That is surprising. Bond was widely expected to be a grand verdict on Missouri v. Holland and the scope of the constitutional treaty power. To the Court, however, that abstract debate seemed far removed from the facts of the case. The real problem was that federal prosecutors had overreached. As Justice Kennedy told the Solicitor General during oral argument: “It … seems unimaginable that you would bring this prosecution.” But bring it they did. The solution was to prevent such overreaching in the future. As the Court put it: “Here, in its zeal to prosecute Bond, the Federal Government has ‘displaced’ the ‘public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign,’ that Bond does not belong in prison for a chemical weapons offense.” Under the Court’s narrowed reading of the statute, that problem will no longer arise.

Bond‘s discussion of prosecutorial discretion calls to mind other instances where the Court has policed federal attorneys.  In United States v. Stevens, for instance, the Court (per the Chief, as in Bond) noted that the United States had repeatedly invoked “its prosecutorial discretion” as a potential cure for First Amendment problems.  The Court retorted: “But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige.” A related sentiment is at work in Bond.

Looking ahead, the decision in Bond is likely a harbinger for the recently granted case Yates v. United States, where a defendant was convicted of violating Sarbanes-Oxley’s “anti-shredding” prohibition by throwing illegally caught fish off his boat. Critics have viewed Yates as an instance of federal prosecutorial overreach accomplished by reading statutory definitions in an unnaturally broad way. Surprisingly, the statutory issue in Yates will be informed by the Court’s most recent brush with the treaty power.