Bond v. United States: towards the US Supreme Court again

Feb 07 2013
VERTIC Blog >> National Implementation Measures

Yasemin Balci, London 

The case of Ms Bond, a woman convicted in the United States under the Chemical Weapons Convention (CWC) Implementation Act for putting highly toxic chemicals on the car door handles, doorknob and mailbox of a former friend, will be considered by the US Supreme Court again. Due to its focus on the balance of power in a federalist system, this case is particular to the US domestic legal order. However, as the Court will address the application of the CWC Implementation Act to Ms Bond’s criminal acts, it is also of interest to other CWC States Parties that have adopted or are in the process of adopting implementing legislation for the CWC.

The US Supreme Court previously heard Ms Bond’s case in 2011 to decide whether she had standing (that is, the legal ability to bring her case) to challenge her conviction under the CWC Implementation Act (see Trust & Verify No. 134 on this decision). Deciding that she did, her case was then remanded to the US Court of Appeals for the Third Circuit, which upheld her conviction under the CWC Implementation Act in 2012, although not without some criticism (see the VERTIC Blog of 28 June 2012 for an analysis of this judgment).
This would have been the end of the case, had the Supreme Court not accepted last month to hear it on appeal (the Court only hears 75 to 80 cases out of 10,000 petitions for a writ of certiorari per year).  Ms Bond’s new appeal has raised two questions for the Court. The first one asks how treaties such as the CWC should be implemented by the Federal government in the domestic legal order without encroaching on the power of states. The second one asks whether “the provisions of the CWC Implementation Act [can] be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities […]?”
Ironically, state and local authorities failed to adequately handle Ms Bond’s case, at least in terms of enforcement. When the victim notified the local police about the white powder on her car door handles, doorknob and mailbox (something that occurred over 24 times over a course of three months), she was told it might be cocaine and was advised to clean it. Only when she contacted the postal service, a Federal entity, was an investigation started that led to Ms Bond’s arrest. The white powder was 10-chlorophenoxarsine, half a teaspoon of which could have been lethal if swallowed by the victim or her child. This instance highlights the importance of training enforcement officers at all levels to be aware of the possible non-peaceful uses of toxic chemicals (as well biological agents, toxins and nuclear and radioactive material).
It is true that Ms Bond’s criminal acts could have been prosecuted under penal provisions other than those in the CWC Implementation Act. Many states have provisions criminalizing the use of poison. These are often archaic provisions, however, which usually do not clarify what is meant by the word ‘poison’. For example, international instruments such as the Hague Regulations of 1899 and 1907 and the Geneva Protocol of 1925 separate poison from gases. Nor do these provisions include related activities such as acquiring poison for malicious purposes. In the CWC Implementation Act, which ‘faithfully tracks the language of the CWC’ according to the US Court of Appeals for the Third Circuit, chemical weapons and toxic chemicals are clearly defined. While these definitions are broad, this is necessary to ensure that these legal terms will remain relevant as the field of chemistry advances.

Ms Bond could have also been prosecuted for the crime of assault or battery. These charges would not have satisfactorily reflected her criminal behavior, however, especially as her intent was to cause physiological damage to her victim through covert means. As a microbiologist working for a chemicals manufacturing company, she knew which chemicals she should choose for this purpose. She was correctly prosecuted under the CWC Implementation Act, which criminalizes chemical weapons use, i.e. the non-peaceful use of toxic chemicals, which can cause permanent harm to humans by the way they affect bodily functions. It is common knowledge that chemical weapons can be used as weapons of mass destruction or for terrorist purposes. However, it is also important to understand that the use of toxic chemicals as a weapon by one individual on another can qualify as chemical weapons use. Whether this will feature in the Court’s decision will become clearer in June this year.     

Last changed: Feb 07 2013 at 6:14 PM