There was no act in MS; leaving the state is, by definition, an act that occurs outside the state.
Not quite. Here is the best part for your argument:
First, this is dicta and not really well thought out. The three cases cited in support are two right to travel cases, and yes, an abortion case. At the end of the day, it stands for nothing because it is dicta and the cases support they idea that you cannot prevent a citizen’s travel to obtain a constitutional right. It says nothing of the laws I came up with.
The intent was formed in MS. The driving to the border or getting on an airplane with the announced destination of NV all occurs in state. Packing your suite case occurs in state, etc. Plenty of nexus to MS there.
Good luck drafting legislation that prohibits attempted leaving of the state upheld.
Is there a difference between state criminal law powers on this point and federal criminal law powers?
It is a federal criminal offence to travel to another country with the intent to have sex with underage people in a foreign country, even if it’s not illegal in that foreign country. It’s not a criminal offence to travel to that same foreign country for tourism or business. It’s solely the purpose for the travel that makes the first trip a federal offence.
Can a state not impose criminal liability based on the purpose of the trip, using the same type of statutory principles?
No. Federal criminal law can have extraterritorial application because the federal government has exclusive power over foreign relations and national borders. States have plenary power, but only within their own borders.
It is not outlawing leaving the state. It is outlawing leaving the state with a particular mens rea that the state believes is injurious to its citizens. Just like this:
Right. It is undisputed that the feds can do so. And other than that piece of dicta from Bigelow I cannot think of any reason a state could not do so as well.
Maybe the gambling example is a bit much, but only because even the most anti-gambling states in the country don’t care if you go off somewhere else and do it.
But in a post-Roe world where abortion is no longer a constitutional right and states are permitted to define persons under state law with a greater protection for the unborn than is given in the 14th Amendment (i.e. unborn children are full persons under the law), then I don’t see how a woman leaving MS and going to NY to get an abortion, e.g. kill the unborn child as defined by MS) would be any less punishable by MS than currently taking a 16 year old child across the border and murdering it.
The counterargument would be that murder is likewise illegal in the other state, but I’m not seeing the legal significance there. Like Rehnquist and White discussed in dissent in the Bigelow case, it would seem that a company in New York could advertise heroin for sale in NYC and Virginia would be powerless to stop it, because whether heroin is legal or illegal in NY, the same principles of the case should apply that Virginia is powerless to regulate the internal affairs of NY so the other state’s law is really irrelevant to these analyses.
And again, MS is not punishing you for your gambling activities in NV. They would be punishing you for your activities in MS, within its borders, where it punishes you for having the intent to leave the state with the desire to gamble in another state and then leaving the state: all activities which occur entirely within MS.
Further, I’m not sure how foreign relations and national borders give the feds that power. If someone goes to a lax country to sleep with a child prostitute, they have already crossed a border and that does not impact foreign relations because the foreign country has no problem with that activity. I’m not sure how the traditional power of foreign relations or border security come into play.
You are subject to those laws because, mainly, the United States has the guns and the raw power to arrest you and by being a U.S. Citizen you are subject to the laws of the United States. It is not even that, really, as it is illegal for anyone to murder a U.S. citizen anywhere in the world, so it is the whole “we got the guns” thing.
Okay, you are making me rethink this a bit and taking me back to law school hypotheticals. Let’s try this:
You and I don’t like a guy named Dave who lives in Alabama. We are not sure whether to talk to him and try to patch things up or just quit doing business with him or what.
So we agree to meet at a Hampton Inn in Pascagoula, MS to discuss it in person. We get a few drinks in us and decide and agree that we are going to kill Dave the next day.
We get up the next day, drive across the border into Alabama and one or both of us kills Dave. We are guilty of (at least) Murder and Conspiracy to Commit Murder. My understanding is that either MS or AL or both could punish us for both crimes (along with the feds, but lets leave them out). Does that square with your view? And if so, why is that different from my “leaving the state to gamble” hypo?
Also note the USA recently changed something, from what I read in the news - it no longer has to prove you went abroad with the*** intent ***to have underage sex, only that you in fact did the act abroad.
but then, as pointed out, the constitution gives the feds juridiction over internation relations as mentioned above…
So the question is - can a state prosecute someone for simply ***intending ***to do something that is legal elsewhere?
Not conspiracy (2 or more people planning) but simply forming the idea in your head?
How specific does the evidenc need to be to prove *mens rea *absent confession?
Plenty of people think about things and don’t do them. (I think that was a twilight zone episode about a planned bank robbery)
And - Can a state prosecute someone for departing the state to perform a legal act elsewhere?
The last part is what I am trying to flesh out, but to your earlier point, the state would not be punishing you just for your thoughts. You could sit in Jackson all day and dream of going to Vegas and playing blackjack or scheming to be able to get on a plane and violate MS law. No problem there.
But when you take the prohibited act, i.e. leaving the state with the required intent, then you break the law, because the acts you committed: packing your suitcase, buying an airline ticket, driving to the airport (or alternatively driving to the state border on a somewhat cross country trip), all done with the requisite intent, occurred entirely within the state of MS. No extraterritorial application analysis is even required here.
And in my analysis to the answer to your final question, at least in my back and forth with RNATB, is why does it matter if what you are doing is legal in the other state or not? Why does it matter if it is gambling in NV (legal) or murder in NV (illegal)? Why should that impact the power of MS to punish acts within its own borders?
Missed this part. That’s up to twelve citizens, good and true. And getting back to what we are really talking about instead of analogies, the premise is that Roe v. Wade is overturned and each state has its own abortion law.
New York has pretty much the status quo…legal elective abortion. Mississippi outlaws all abortions except to save the mother’s life. Also, Mississippi sees that many of its female citizens are traveling to New York to have abortions that would otherwise be illegal in MS, so it passes a law saying that one may not leave the state with the intent to have an abortion in the other state. Whether it can do that in a post-Roe world is what we are discussing.
However, to prove it? Intent is sometimes hard to prove but as prosecutors always say, it may be inferred by actions. If a woman who is 3 months pregnant drives to the Jackson airport, flies to JFK, checks into a hotel, sleeps overnight, gets an abortion the next morning, and flies back to Jackson, would you as a juror have a hard time finding beyond a reasonable doubt that her intention for going to New York was to have an abortion?
A state probably can’t because that’s interstate “commerce”, a federal domain. The feds have done so with the Mann Act criminalizing crossing state lines with “any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose… It was amended… to limit its application to transport for the purpose of prostitution or other illegal sexual acts.”
Are those “sexual acts” that are illegal federally, or in one state but not another? If the latter, then the feds certainly control the intent of interstate movement. A guy meets an adult woman in Crystal Bay (Nevada, prostitution legal) and walks her from the Nevada side to his room 100 feet west (California, prostitution illegal) for a hot time. He gives her money. Did he violate the Mann Act? Is Leavenworth his next home?
The key argument is “formulating a plan or intent to violate the law as it stands in your state by going to another state where it is legal - is a violation of your state’s law”.
But how do you show beyond reasonable doubt that the person did not simply decide to go to Nevada? He may have withdrawn $2,000 planning to see the big fight, not gamble.
Similarly, Miss Jane takes a trip to new York and comes back less pregnant. How do you *prove *intent to do so was formed while she was still in Hicksville?
I doubt the act of taking a trip out of state is in and of itself sufficient proof. IANAL. And of course, expecting logic and fairness and adherence to strict law from the courts may be a lost cause.
And then again - formulating a plan to explicitly do something legal in another state - is that actually intent to break the law in your state? Don’t you actually have to plan to do an actually illegal act?
Proving any of this is going to be impossible as a practical matter, anyway. Jane takes a trip to NY and comes back "less pregnant". OK, and how do you prove she didn't have a miscarriage at some point? Forget prove, how does MS even *know* that? You'd have to come up with some bizarre , extremely unlikely story where Jane discloses her pregnancy and her plans to have an abortion to someone who is *so opposed* to the idea that they turn Jane in. I think most people know who in their circles is at that level of opposition.