The Idaho Loophole

Brian C. Kalt (2005), “The Perfect Crime,” Georgetown Law Journal, Vol. 93, No. 2.

Abstract: This article argues that there is a 50-square-mile swath of Idaho in which one can commit felonies with impunity. This is because of the intersection of a poorly drafted statute with a clear but neglected constitutional provision: the Sixth Amendment’s Vicinage Clause. Although lesser criminal charges and civil liability still loom, the remaining possibility of criminals going free over a needless technical failure by Congress is difficult to stomach. No criminal defendant has ever broached the subject, let alone faced the numerous (though unconvincing) counterarguments. This shows that vicinage is not taken seriously by lawyers or judges. Still, Congress should close the Idaho loophole, not pretend it does not exist.

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Posted on February 1, 2012 at 6:05 AM • 35 Comments

Comments

Steve Bennett • February 1, 2012 6:49 AM

How does the 6th Amendment square with the treaty that led to the UK Extradition Act – the one that’s being used to extradite the likes of Richard O’Dwyer and Gary McKinnon to be tried in the US for crimes committed in the UK?

I’m in the UK, so not too familiar with US law (but maybe I should become more so).

Clive Robinson • February 1, 2012 6:59 AM

It’s not a “perfect crime” in the ordinary accepted term where you get away with it without being detected by the police etc.

It falls down to a “home turf” issue with who’s juresdiction it’s under.

Wiki has a page on the issue,

http://en.m.wikipedia.org/wiki/Vicinage_Clause

Basicaly it goes back to “Ancient English Law” with respect to a defendant’s rights.

Taken • February 1, 2012 7:55 AM

Wasn’t tim Mcveigh prosecuted in anoter state than the one where he committed his crime?

I don,t know the legal aspects of this cahnge of venue, but, couldn’t the same legal mechanism be used to prosecute someone who commits a crime in th park?

Alan Kaminsky • February 1, 2012 8:17 AM

The Idaho section of Yellowstone sounds like the perfect place from which to launch cyberattacks, host file sharing sites, etc. Any attempt at prosecution would violate your Sixth Amendment rights.

Smyle • February 1, 2012 8:22 AM

@Taken – the change of venue was requested by the defendant’s attorney because he didn’t think he could get a fair trial. Big difference than the government proclaiming he couldn’t

Paeniteo • February 1, 2012 8:43 AM

@Alan Kaminsky: “The Idaho section of Yellowstone sounds like the perfect place from which to launch cyberattacks, host file sharing sites, etc.”

Umm… The area would likewise be the perfect place to simply destroy (as in: kill it with fire) file sharing servers etc…

mikeash • February 1, 2012 8:47 AM

@Steve Bennett

I believe the argument for extradition is that the crimes were in fact committed in the US. Even though the alleged criminal himself was in the UK at the time, the actions they’re being extradited for occurred in the US.

Ian • February 1, 2012 8:50 AM

@bob – You can also shoot a Welshman, as long as it is in the precincts of Hereford Cathedral and you use a longbow.

John • February 1, 2012 9:17 AM

Setting aside the minor detail that once you’re in the American criminal justice system you stand a good chance of being destroyed financially regardless of guilt or innocence why bother with unproductive crimes like murder or cracking networks?

It seems to me that this would be a good location to set up something profitable like a brothel town or a polygamous community.

jacob • February 1, 2012 10:42 AM

Waiting to hear more on this story.
The FBI in Boston/fitchburg used a CHAIN SAW to go through the front door in a no knock drug raid…It’s a wonder no one was hurt. But, hey they appologized…

David Leppik • February 1, 2012 11:55 AM

Reminds me of the loopholes that allow crimes on Minnesota reservations to go unpunished. I don’t remember the details, but state/county police don’t have jurisdiction in tribal areas, and tribal jurisdiction is limited. Crimes such as rape committed by non-tribal members fall between the cracks.

kiwano • February 1, 2012 11:59 AM

File sharing datacentres and brothels? Really? If you’re going to make money off the loophole, you need to commit crimes in the vein of “do something illegal, take your gains, and leave” rather than set up some sort of facility to generate an ongoing stream of income. I think it’d be way more viable to manufacture illegal drugs, or make illegal modifications to small arms.

David Glasser • February 1, 2012 12:34 PM

I think you invented the “2012” in that citation, and that the journal article in question is actually from “2005”. Of course, a web search for “Georgetown Law Journal, Vol. 93, No. 2” today mostly finds people quoting this blog post 🙂

Snarki, child of Loki • February 1, 2012 12:59 PM

Up until the ~1921, there used to be a wedge in the angle between DE, MD, and PA that was (arguably) part of none of them.

This was caused by far-off englishmen describing boundries that didn’t mesh properly.

It wasn’t a haven for criminals breaking federal law, but a number of people charged under state laws got off by claiming “not your jurisdiction”! Or so it is said…

Fred P • February 1, 2012 1:37 PM

@David Leppik-

I think that loophole is weaker than you remember. Here’s a paper on it: http://www.law.northwestern.edu/lawreview/v101/n2/897/LR101n2Droske.pdf

Basically, Public Law 280 grants criminal, but not civil or regulatory jurisdiction over “Indian country”.

In the case in question, the sex offender didn’t have to register with the state predatory offender registration law.

Due to that case, a number of tribes entered compacts with their states to allow sex offenders to be registered through the tribal government, shared with the state government’s registry.

State v. Feds • February 1, 2012 1:45 PM

Doesn’t this only apply to federal laws since it’s the federal constitution and court system? Murder is against state laws.

Fred P • February 1, 2012 2:20 PM

@State v. Feds

-if you read the paper, it states that the state has no jurisdiction because it’s a federal enclave.

DavidTC • February 1, 2012 2:44 PM

So basically the problem is that all juries have to be composed of an intersection of people who both reside in the state, and reside in the federal court district…and that stupid-considered boundaries have resulted in an area with literally no residents at all. (And a nearby area with almost no residents.)

But this isn’t just a problem there. It’s pretty unlikely, but there’s nothing requiring states to actually have populations. Nothing is stopping everyone from just moving out of Kansas one day, at which point it also would be impossible for a jury to be convened.

Incidentally, this opens a fairly horrible loophole for really good mass murderer. Just kill everyone in one state.

I think an argument can be made that the sixth amendment provides for rights of the accused, and people accused of crimes in such no-jury-lands do, indeed, have the right of a jury of people from that state and district…if they can find one. If not, we’ll have to get one elsewhere, or go ahead without one. The accused do not have the right to things that literally don’t exist, and ‘denying’ the accused those things does not mean we have to let them go.

Fred P • February 1, 2012 3:02 PM

@DavidTC-

Everyone would not need to move out of a state – merely a district in a state where the district is a federal enclave.

The author is relying on Cook v. United States, as well as common law (and the Constitutional text) on vicinage.

I don’t think that it’s clear that the arguments in this paper would persuade a judge. If it did, it would almost certainly only work once, at least if the case were major. I think that the main suggestion of the paper is to close this theoretical loophole before it is tested in court.

Matt from CT • February 1, 2012 3:52 PM

Um folks, read the link for comprehension before posting, mmmm k?

McVeigh’s trial was Federal IIRC, state
wasn’t as much of an issue.

As the article points out, your jury must still be from the state and district.

The change of venue is a defendant’s right — the prosecution will agree to it so it’s not raised on appeals that publicity, etc had made a fair trial within the district of the crime impossible.

The vicinage clause of the Constitution is also defendant’s rights — so prosecutors can’t unilaterally move a trial to another district on the thought they couldn’t possibly get a conviction in the first.

The Idaho section of Yellowstone
sounds like the perfect place from which
to launch cyberattacks, host file sharing
sites, etc

Only within the Idaho section. Other then jamming reception of hikers GPSs, probably not a lot of opportunity

Soon as you cross a state line, you’ve committed a federal crime in another state; cross the line into a populated section of Idaho you’ve committed a crime in that district.

And as Fred P. said, it’s an interesting paper but if the theory worked at most it would work is once then the loophole would be closed.

Joe Buck • February 1, 2012 4:30 PM

The Wikipedia article http://en.wikipedia.org/wiki/Vicinage_Clause
discusses this, and offers several possible “outs” to the technicality. I’m sure that judges would have no problem keeping someone from getting away with “the perfect crime”.

Technical people often imagine that the law operates somewhat like a computer program and that they can exploit logical flaws in much the same way that software bugs can be exploited. But at least in the US (and I think in other countries that have inherited British common law) judges are free to interpret around odd loopholes like this based on the intent of the lawmakers.

Brett • February 1, 2012 6:18 PM

Send In the Clouds!!
This Constitutional oddity will hit us IT guys smack up the Cloud! Where is you cloud? Google keeps half of it in Canada! So, in which state is your data? Where did the crime happen if a Cloud-which is no-where (not in either state)?

Jonadab • February 2, 2012 6:18 AM

The Idaho section of Yellowstone sounds
like the perfect place from which to launch
cyberattacks, host file sharing sites, etc.

For those crimes, civil suits are at least as dangerous to the perpetrator as criminal persecution, so I’d say it’s not a problem.

Most traditional crimes (theft, murder, etc.) aren’t a problem either, because you can’t commit them without a victim. No people in the area means no victim for those kinds of crimes.

However, there could be a problem with crimes that have victims living outside the immediate vicinity of where the crime is committed, but which are largely a matter for criminal prosecution rather than civil suit. Counterfeiting is probably impractical to commit in an area where you can’t own land, but toxic waste dumping and arson have some potential…

The obvious solution is to adjust the district boundary (I imagine that’s easier than moving the state line) so that jury selection is less of a problem.

Jonadab • February 2, 2012 6:33 AM

Doesn’t this only apply to federal laws

In theory, the jury selection rules apply to all criminal prosecution in the United States.

It is arguable that they might apply to civil suits as well, on the grounds that the wording in the seventh amendment makes the jury rules apply to civil suits, but that amendment doesn’t actually say anything about how the jury must be selected, it only says the trial has to be by jury. I assume case law on the matter would be used to determine the extent to which criminal jury selection rules apply in a civil suit. Not being a lawyer, I have no idea what the case law on the subject is. (That’s the main disadvantage of a common law system: you need about eight years of law school and at least a month’s worth of research time to have any hope of figuring out what the law actually is on any given subject, because just reading the written law on the books doesn’t tell you what you need to know.)

NobodysHere • February 2, 2012 10:19 AM

@Jonadab

Most traditional crimes (theft, murder, etc.) aren’t a problem either, because you can’t commit them without a victim. No people in the area means no victim for those kinds of crimes.

“No residents” is not the same as “no people”. Yellowstone sees more than three million visitors each year. Our serial killer would have his pick of hikers wandering through the loopholed portions of the park; our criminal genius need only find a pretext for his wealthy friend to join him on a vacation.

Jon Lennox • February 3, 2012 3:42 PM

Has there really never been anyone prosecuted for a crime committed in the Idaho section of Yellowstone, in the past 122 years? That strikes me as very unlikely, so I’d hope there’s precedent for how crimes like that are handled.

Nbsc Etts • February 4, 2012 12:15 PM

Hey! Why not a “Felony Free Area”? It’s remote, Federal Land
with no hard tangible productivity anyway. Should Claud Dallas,
have lived there? Would have been better for everyone. Has any
“law er”, considered that Incorrigibles should have their own Area?
They can go there and just leave the people that went to finishing
school alone at no cost!! :o) This could also apply to Humanities
Failures, (humans do promote them), that aspire to become
Strongmen, Chiefs, Dictators, Kings, Prime Ministers and Presidents;
They could stay in that area until the Urge Passes; Perhaps the
quadruple Human Scourge of Kings, Taxes, Armies and Wars
could be muted if not avoided.
Idaho Joe

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