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Regulating Intrastate Crime: How the Federal Kidnapping Act Blurs the Distinction Between What Is Truly National and What Is Truly Local

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Regulating Intrastate Crime: How the Federal Kidnapping Act Blurs the Distinction Between What Is Truly National and What Is Truly Local Regulating Intrastate Crime: How the Federal Kidnapping Act Blurs the Distinction Between What Is Truly National and What Is Truly Local Colin V. Ram∗ Table of Contents I. Introduction ..................................................................................768 II. Federal Regulation Under the Commerce Clause.........................771 A. Channels of Interstate Commerce..........................................776 B. Instrumentalities of Interstate Commerce ..............................778 C. Substantial Effects Test .........................................................779 III. Federal Kidnapping Act ...............................................................781 A. The "Snatch Racket"..............................................................781 B. The Lindbergh Law ...............................................................783 C. The 2006 Amendment ...........................................................786 IV. Examining the Impact of the 2006 Amendment ...........................787 A. Interstate Kidnappings...........................................................788 B. Intrastate Kidnappings...........................................................789 C. Congress’s Authority to Regulate Wholly Intrastate Crimes ...................................................................................790 1. Defining the Outer Limits of Federal Criminal Law with the Substantial Effects Doctrine..............................790 2. The Conflicting Permissiveness of the Channels and Instrumentalities Rationale.......................................793 ∗ Candidate for J.D., Washington and Lee University School of Law, 2008; B.A., American University, 1996. I would like to thank Donald Houser and Professor Dorothy A. Brown for their invaluable guidance, remarkable patience, and helpful critiques. Additionally, I would like to give a special word of thanks to my friends and family, for providing the right amount of support and distraction throughout the writing process. This Note is dedicated to the memory of my grandfather, Madhira Subba Rao, Advocate. 767 768 65 WASH. & LEE L. REV. 767 (2008) 3. The Limiting Power of a Jurisdictional Element.............795 D. The Challenge of Regulating Intrastate Kidnapping Under Conflicting Doctrines..................................................797 1. First Principles of Commerce Clause Jurisprudence ..................................................................797 2. Federalism Under the Federal Kidnapping Act...............800 E. The Offender-Use Provision Is Neither Necessary nor Proper..............................................................................803 V. Conclusion....................................................................................806 I. Introduction In the early morning hours of Saturday, March 27, 2004, a white male wearing a black knit stocking cap slipped into the bedroom of Audrey Seiler’s apartment, threatened her with a knife, and ordered her to follow him to his waiting car.1 Once outside, he pushed the twenty-year-old college student into a car, forced her to swallow Nyquil capsules, and bound and gagged her with duct tape.2 For hours, Seiler’s abductor drove them around the city of Madison, Wisconsin before finally stopping near a wooded area on the edge of town.3 Seiler’s friends quickly noticed her absence. By late Saturday afternoon, the local police had launched an investigation into her disappearance. The national media immediately took interest, and for days the nation focused on every detail emerging from this shocking kidnapping in a small college town.4 Forensic investigators determined that someone had conducted Internet searches for "Madison parks" and "Madison area wooded areas" on Seiler’s laptop shortly before her disappearance.5 Additionally, detectives discovered surveillance video from a local Target store showing an individual purchasing 1. Criminal Complaint at 10, Wisconsin v. Seiler, No. 04-DA-005353 (Dane County Cir. Ct. Apr. 14, 2004), available at http://images.ibsys.com/c3k-structure/images/pdf/seiler_ complaint.pdf (last visited Mar. 3, 2008). 2. Id. at 10, 12. 3. Id. at 10. 4. See Josh Mankiewicz, Racial Profiling in Missing Persons Stories?, DATELINE NBC, Aug. 5, 2005, http://www.msnbc.msn.com/id/8667821 (last visited Feb. 26, 2008) (noting that, in the four days following Seiler’s disappearance, the national morning news programs of ABC, CBS, and NBC collectively devoted almost 100 minutes of airtime to her story) (on file with the Washington and Lee Law Review). 5. Criminal Complaint, supra note 1, at 6. REGULATING INTRASTATE CRIME 769 duct tape, rope, a knife, and Nyquil medication.6 Moreover, as the investigation would later reveal, Seiler’s alleged abductor reportedly used a cell phone to call an accomplice, pleading "I did what you asked. You got to let me in now."7 Then, on the Wednesday following Seiler’s disappearance, a 911 caller reported seeing a young woman fitting Seiler’s description sitting in a grassy area near a bike path.8 Police officers responded to an area just two miles from Seiler’s apartment.9 Upon arrival, they quickly discovered that the lone woman sitting in the grass was indeed the missing college student.10 Audrey Seiler had been found.11 If she had been transported across state lines, the Federal Kidnapping Act12 (Kidnapping Act) would have been violated.13 But because Seiler remained in-state—indeed, the entire ordeal took place within Dane County, Wisconsin—her kidnapping amounted to a state law crime.14 That is, until Congress passed the Adam Walsh Child Protection and Safety Act.15 Enacted in late July 2006, this statute contains over one hundred different provisions aimed at protecting children from the harms of violent crime and sexual exploitation.16 Included in this legislation, however, is a one line amendment to the Kidnapping Act, dramatically expanding the reach of federal jurisdiction to include virtually every type of kidnapping currently regulated 6. Id. at 7. 7. Id. at 9. 8. Id. at 8. 9. Id. 10. Id. 11. Or so the story goes. As it turns out, Audrey Seiler faked her own kidnapping. In July 2004, she pled guilty to obstructing a police investigation, was placed on probation, and ordered to pay restitution. See generally Criminal Complaint, supra note 1 (detailing Seiler’s disappearance and subsequent claims). However, the details of Seiler’s "kidnapping" are rife with use of the channels and instrumentalities of interstate commerce and provide an ideal framework through which the 2006 changes to the Federal Kidnapping Act can be introduced. 12. See Federal Kidnapping Act, 18 U.S.C. § 1201 (2000) (amended 2006) (proscribing abduction in cases where the victim is "transported in interstate or foreign commerce"). 13. See id. § 1201(a)(1) (prohibiting the transportation of kidnapping victims in interstate commerce). 14. See WIS. STAT. ANN. § 940.31(1)(a) (West 2006) (criminalizing the taking of a person from one place to another by threat or the use of force). 15. See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (codified as amended in scattered sections of 18 U.S.C. and 42 U.S.C.) (protecting children from online predators and sexual exploitation). 16. Id. 770 65 WASH. & LEE L. REV. 767 (2008) under state law.17 Specifically, the amendment extends federal jurisdiction to kidnapping cases in which an offender makes use of the channels or instrumentalities of interstate commerce.18 Under the current interpretation of Congress’s commerce power, there is no minimum threshold of interaction necessary to create the required nexus with interstate commerce.19 Rather, simply driving a car, picking up a telephone, or even walking down a neighborhood sidewalk satisfies the usage requirement. In Seiler’s case, this nexus would have been created when her alleged abductor accessed the Internet, purchased items in a store, transported her in an automobile on local streets, or telephoned his accomplice. Viewed in this light, it is difficult to imagine a kidnapping scenario in which an offender does not use a channel or instrumentality of interstate commerce in commission or furtherance of the crime. Most, if not all, intrastate kidnappings invariably involve the use of an automobile, a telephone, or some other instrument of interstate commerce in conjunction with the act. Prior to the 2006 amendment, only state authorities could prosecute these otherwise intrastate kidnappings. With the added "offender-use provision" in the 2006 amendment, however, federal authorities now share concurrent jurisdiction with the states over virtually every kidnapping in this country. Indeed, the 2006 amendment is so broad that Congress could use it to extend federal jurisdiction over practically all intrastate criminal activity. While the Kidnapping Act is certainly not the first statute to rely on Congress’s authority to regulate the use of the channels and instrumentalities of interstate commerce, it is exceptionally permissive in that the Act allows an offender’s actions to create the required nexus with interstate commerce by "any" use.20 Consider the effect of this jurisdictional element on an offender who makes use of interstate commerce. For example, a murderer may approach his victim in a dark alley, a burglar may case a neighborhood in her car, or a shoplifter may take a bus to the mall. In each of these examples, the offender has made use of an instrumentality or channel of interstate commerce: the dark alley, the car, or the
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