Kidnapping federalism: the constitutionality of extending federal criminal law into the states.

• Author: Scott, M. Todd
• Position: Case Note

On March 1, 1932, Charles and Anne Lindberg's twenty-month-old baby boy was kidnapped out of his nursery while he slept. (1) Known for many years after as the "crime of the century," the kidnapping of the Lindberg baby was, at the time, highly sensationalized. (2) Not only did it involve Lindberg, the man who had flown solo across the Atlantic to become the age's "greatest hero," but the ransom demanded--fifty thousand Depression-era dollars--was considered by most Americans at the time to be a fortune. (3) Newspapers of the day covered the kidnapping with an intensity usually reserved for politics or war, and ordinary people deluged the Lindberg family with thousands of potential leads, expressions of sympathy, and psychic predictions. (4) Even the notorious gangster Al Capone got involved; he promised that if he were released from prison, he and his henchman would deliver both the missing child and the perpetrator. (5)

Despite the level of attention swirling around the missing Lindberg baby, authorities investigating the kidnapping found themselves hampered in their efforts by the nature of kidnapping laws. (6) At the time, the only kidnapping laws were state laws, and these often--conflicting state laws forced the authorities to conform an otherwise national manhunt to the particular idiosyncrasies of each state into which it extended. (7) To alleviate this confusion and facilitate the pursuit of kidnappers without regard to state lines, Congress quickly passed the Federal Kidnapping Act. (8) Designed exclusively to give federal authorities the power to chase kidnappers when they fled from one jurisdiction to another and from one state to another, the Act created a legal supplement to state kidnapping laws: a nationwide rule of illegality that could govern where a single state's law could not. (9)

Unfortunately, the Act could do little to help the missing Lindberg child. As a trucker discovered on May 12, 1932, the body of the baby had all the while been laying in the woods just a few miles from the Lindberg home, dead as the result of a skull fracture. (10) The Act had been irrelevant; the victim had not been carried across a county line, much less a state line. (11)

Nevertheless, the Act remained, and for the next fifty years it was employed with little controversy, used against those kidnappers that, during the course of the kidnapping, carded their victims across state lines. (12) Over the years, the Act performed the function for which it was designed: to give federal authorities the ability to chase kidnappers across jurisdictional lines and prosecute them under a single, federal criminal statute without becoming tangled in the mire of inconsistent state laws. (13)

Recently, however, in United States v. Wills, the Court of Appeals for the Fourth Circuit expanded the Act's traditional scope to reach kidnappings in which the kidnapper does not carry his victim across state lines. (14) In Wills, the court held that federal jurisdiction arises under the Act when a kidnapper uses false pretenses to lure his victim into crossing state lines, even if the kidnapper himself does not accompany the victim during that crossing. (15) As the Wills court noted, its holding was in direct opposition to United States v. McInnis, a twenty-year-old case from the Court of Appeals for the Fifth Circuit that held that federal jurisdiction under the Act can be established only when the kidnapper actually accompanies the victim across state lines. (16) The Act, the Fifth Circuit held in McInnis, does not "reach the entirely voluntary act of a victim in crossing a state line even though it is induced by deception." (17)

As this article will argue, the circuit split resulting from Wills is of some consequence. For if, as Wills holds, federal jurisdiction under the Act can attach even when a kidnapping does not cross state lines, then the constitutionality of the Act is brought into question. The Act, like all federal criminal laws, is constitutionally justified by Congress' power to legislate under the Commerce Clause, which grants Congress the power to regulate interstate commerce. (18) If it can be applied to intrastate activities, as the Wills decision would have it, under what part of the Constitution could the Act be said to originate? (19) Likewise, if the Act can be used to allow federal authorities to prosecute a kidnapper who does not carry his victim across state lines, important questions of federalism arise: Which entity--the federal government or the state--is charged with policing the protection of citizens? What powers, if any, do the states still retain if the federal government is free to police crimes within their borders? (20) Finally, in the aftermath of Wills, how are courts to deal with the Act's declared legislative purpose and heretofore cohesive body of precedent, both of which Wills would seem to contradict? (21)

This article proposes that, in its split with existing law set forth by the Fifth Circuit, the Fourth Circuit in United States v. Wills misread the Federal Kidnapping Act to reach a conclusion that 1) unconstitutionally enabled federal jurisdiction by allowing a federal criminal law to be utilized against a wholly intrastate crime; 2) violated the tenets of federalism by granting federal authorities power over an area traditionally reserved to the states; and 3) contradicted both precedent and the legislative purpose of the Act by extending the law to a crime--intrastate kidnapping--that it has never been understood to cover.

To make this argument, the first section of this article will provide a brief history of the Act and will detail the contradictory holdings of McInnis and Wills. The second section will discuss the constitutionality of the Wills decision by first reviewing the history of Congress' power under the Commerce Clause to pass federal criminal laws such as the Act. Next, it will examine the curtailment of Congress' commerce power in United States v. Lopez (22), and describe the federalist interests of the current Supreme Court. Lastly, the second section of this article will show how a federalist jurisprudence grounded in Lopez was successfully employed by the Court in United States v. Jones, (23) a case nearly identical to Wills that could have implicated many of the same constitutional concerns.

The third section of this article will turn specifically to Wills, detailing the manner in which the Fourth Circuit's decision contradicted the legislative purpose of the Act, the internal logic of the federal criminal regime, and the precedent under the Act. The third section will also detail the highly unnatural "natural reading" of the Act employed by the Fourth Circuit to reach such an isolated decision.

Finally, the fourth section of this article will look to the possible future effect of the Wills decision, most notably to a similar case likely headed to court as a result of Wills' expansion of federal jurisdiction under the Act.

1. THE FEDERAL KIDNAPPING ACT: FROM INCEPTION TO WILLS

   A. PURPOSEFUL BEGINNINGS

   Originally enacted in 1932 as a response to the kidnapping of the Lindberg baby, the Federal Kidnapping Act (24) was designed to assist state governments in quashing the then "epidemic" of organized kidnapping syndicates. (25) The point of the Act, simply, was to enable federal authorities to chase kidnappers when they fled from one jurisdiction to another. (26) To achieve this end, Congress used "comprehensive language" in the Act to cover "every possible variety of kidnapping followed by interstate transportation," thereby giving federal authorities broad power to "disregard borders" and prosecute interstate kidnappings that individual states' laws could no longer reach. (27)

   Though the Act's "comprehensive language" helped produce an early body of caselaw consistent with the proclaimed purpose of the Act, (28) a 1972 amendment to the Act served to confuse some of this consistency. (29) In short, the amendment opened the possibility that the Act no longer required the kidnapper to physically "accompany" the victim across state lines in order for federal jurisdiction to attach. (30) Though the cases that were decided after the amendment continued to further pre-amendment precedent on this point, (31) the question of whether such interstate accompaniment was absolutely necessary under the Act remained unanswered until the Fifth Circuit decided McInnis.

   B. IMPLICIT UNDERSTANDING MADE EXPLICIT: UNITED STATES V. MCINNIS

   In McInnis, the U.S. Court of Appeals for the Fifth Circuit became the first court to explicitly hold that for jurisdiction to attach under the Federal Kidnapping Act, a kidnapper must physically accompany his victim across state lines. (32) The Fifth Circuit found in McInnis that federal jurisdiction did not exist, for though the defendants in that case planned to have their victim travel from Texas to Mexico--where he would be kidnapped and murdered--their plan involved the victim traveling on his own accord. (33) Jurisdiction under the Act, the court held, could not be extended to reach such a situation, to "reach the entirely voluntary act of a victim in crossing a state line even though it is induced by deception." (34)

   The McInnis court supported its conclusion with reference to the legislative purpose of the Act, (35) to the jurisdictional requirements of other federal criminal statutes predicated on interstate commerce, (36) and to the absence of cases "in which causation has been imputed because the victim transported himself." (37) Additionally, the court noted, though the 1972 amendment to the Act served to "make the thrust of the offense the kidnapping itself rather than the interstate transporting of the kidnapped person," (38) the legislative history of the amendment--as well as the text of the revised amendment itself--in no way indicated that the jurisdictional element of transportation had been removed or diminished. (39) As a...