Whats the legality of prosecuting someone for doing something that is illegal in their home state, but legal in another state

In My Humble Opinion
61

The understanding of the fundamental right to travel goes all the way back to the original Articles of Confederation which explicitly upheld the people’s right to travel within and between states, saying in Article 4:

… the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively—

When the US Constitution was drawn up, the Founders felt this right was so implicitly obvious it didn’t need to be enumerated; instead, a number of Supreme Court rulings have reinforced the implicit existence of that right. The most recent was probably United States v. Guest (1966), which included an interpretation of the 14th Amendment that citizens hold a constitutional right to travel from state to state, and there were other similar rulings long before that one.

How do you square the Constitution with lunatic laws that attempt to criminalize interstate travel by law-abiding US citizens just because, say, the Texas legislature doesn’t like those people’s reasons for such travel? If the Supreme Court were to try to support the constitutionality of such a law, they’d have to overturn decades of precedent and would be seen as outrageously activist. It would be legitimizing the state’s ability to charge someone with criminal conspiracy to commit a perfectly legal act.

62

New Jersey should try prosecuting someone for crossing into Delaware with the intent of pumping their own gasoline.

63

“Thoughtcrime” is an over-used concept, particularly in the areas of attempts and conspiracy. Those are offences that can be committed with each step being entirely legal, but at the end, an offence has been committed, even if no harm occurs. It’s the criminal intent that makes it a crime.

Suppose, for instance, that the following occurs, back in the days when presidents rode in open-air convertibles.

A person legally buys a handgun in Dallas. No offence there.

The person applies for a concealed carry permit, and is granted it.

The person goes to Dealy Plaza with a friend and stands on the grassy knoll, which is open to the public. No offence there.

He has the handgun in his coat pocket, consistent with his concealed carry permit. No offence.

As the motorcade draws by, the person pulls the handgun out, but a sharp-eyed bystander knocks it out of his hand before he can aim or fire it.

Is he guilty of attempt murder? Nobody’s been harmed, and he’s not committed any offence.

What if at the moment the bystander knocks the gun out of his hand, he says “Dammit, I had a clear shot at that SOB!” Guilty of attempt murder?

Or, at the moment the bystander knocks the gun out of his hand, he says, “Why did you do that? I was just showing my new gun to my friend here.” Guilty of attempt murder?

It’s the thought that counts.

64

Yes, and I think this thread has been overcome with emotions about states prohibiting travel for abortions, something I vehemently disagree with, but as this is GQ, I think that they can do that provided they leave it to the actions that occur within their own borders.

ETA: And it’s not just the thought but the actions taken in furtherance of the thought. Packing a suitcase and gassing up the car to drive to NM are not just thoughts, they are acts in furtherance of what TX (in this hypo) has designated to be a crime. The challenger must show up in court, with standing, and explain by arguing law why TX cannot prohibit this. It is not my burden to explain why it can.

65

Even if such prohibitions are unconstitutional?

66

If they are unconstitutional, then sure, but how are they? I could cobble together a federalism argument maybe, but it’s pretty weak, IMHO.

67

You certainly have a right to travel. But not an absolute one for purposes that the state deems unlawful. TX cannot say that you cannot move to NM, but if you are a TX resident and want to go to NM for an abortion and then come back, I think that they could certainly regulate that conduct.

68

The right to travel is not absolute. One of the best examples is the Mann Act (a/k/a the White Slave Traffic Act) which criminalises taking a minor across a state line for a criminal purpose. The reference to a state line was necessary for Congress to assert jurisdiction, as it does not have a general criminal jurisdiction. It is open to attach criminal consequences to crossing a state line without infringing the 14th Amendment. Now, that was a federal law, and Congress can regulate inter-state commerce in a way states cannot. But the statute has been upheld by the Supreme Court, indicating that the right to travel is not absolute.

69

I think all the calls for “cite” in the thread, from both sides, are a bit fruitless, as I don’t think the issue has ever arisen with respect to a state statute. I can’t think of a court case that raises the issue, but I could be wrong, of course.

70

Perhaps you’ll give us the benefit of your esteemed legal mind on Saenz v. Roe.

Stranger

71

The Mann Act is federal law.

Stranger

72

Yes, which I commented on in my post.

73

If it is just the intent that is under discussion here, then what about a situation where someone fully intends to go out of state to have an abortion performed, that person for some strange reason tells the cab driver the real reason for the trip, the returns without have it done for some reason? Is ether one of them in trouble legally?

74

That is a case where a state put restrictions on people moving into the state from another state. The hypothetical law under discussion would criminalise the conduct of a person living in the state where the crime defined by the state legislature would occur.

The police power of the states is very broad, unless it infringes something in the Constitution:

It seems to me that there are two possible grounds to challenge the proposed law. There is the right to travel, but as mentioned, that is not an absolute right. There’s also the dormant commerce clause, where a state law of this sort might be found to restrict inter-state commerce.

However, neither of those restrictions are tied to the idea that State A cannot criminalise conduct in State A, even though it relates to something which is legal in State B.

75

In the context of the o.p. and the subsequent discussion is the question of whether one state can regulate the activities of a citizen in the jurisdiction of another state, or punish them for actions or intent in preparing to go to another state for an action that the home state has defined as unlawful, e.g. going from Texas to New Mexico to obtain an abortion procedure. It has been acknowledged that the US federal government has explicit authority to regulate the travel and commerce of people and corporate entities between states, and even actions outside of US borders. The states do not have that authority to do so beyond their own borders.

As an aside, this business of criminalizing ‘intent’ in and of itself is also wrong. Someone can have all of the criminal intent in the world, but until they take a material action toward committing a criminal act, such as engaging in conspiracy, making threats, obtaining illegal weapons, using false identity, et cetera, they have not actually committed any crime. Indeed, it is difficult to prosecute someone even when they have made extensive and obvious actions toward committing the intended crime if they have not actually committed any associated criminal acts. I can ‘intend’ to kill someone, go buy a legal firearm, look up their address, and get in my car with the ‘intent’ to drive over to the hypothetical victim’s house, and as long as I haven’t made any threats or conspired with someone else to commit the murder no actual crime has yet occurred until I actually brandish the weapon or trespass on their property. Nor could I be prosecuted if I turned around halfway to the victim’s house and went back home without committing any crime. It is an issue that is problematic when it comes to stalking crimes because short of making threats or trespassing most ‘stalking’ is not technically illegal, or is at most is petty harassment, hence why the initial action against stocking is to get a court to issue a restraining order so as to force the stalker into violating the court order.

Stranger

76

Hypothetically it is conspiracy. However, the question is “Conspiracy to do what?” The abortion procedure is legal in the jurisdiction in which it occurs, the state cannot legitimately restrain someone from traveling from the state to visit another state, and of course the cab driver is just offering the same legal service he would offer to any other rider, from a guy going on vacation to Tom Cruise preparing to execute someone in preparation for his role as a hitman. (I’m morally certain he actually did this for Collateral, and after seeing that he made actors actual learn to fly fighter jets for Top Gun: More Jingoism you won’t convince me otherwise.)

If a cab or limo driver drove Mark Meadows to one of polling locations in the three states in which he is alleged to be registered to vote, is the driver a party to conspiracy for voter fraud?

Stranger

77

As we all learned from Legally Blonde, the three elements of crimes of criminal conduct are mens rea (intent), actus reus (act), and the concurrence of the two. A failure to show the presence of every element beyond a reasonable doubt will lead to an unconditional acquittal of the charged crime. But why am I giving you a vocabulary lesson instead of questioning the witness?

78

“It is possible that the two yutes…”

Stranger

79

You are describing current attempt laws, which could be full law review articles all on their own. But why couldn’t a state criminalize driving with the intent to kill?

You keep repeating this and I keep repeating that they are not criminalizing anything going on outside of their own borders. They are criminalizing actions contained entirely within their borders. Intent, gassing up a car, packing a suitcase with such intent, etc. All that happens inside of Texas. How do you keep going on about extra territoriality? All of that is done inside of Texas.

80

NY sort of does, sent people with NY license plates parked at a NJ mall nasty gram letters stating they would be required to pay NY sales tax on anything bought out of state.