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CHAPTER TWO
JURISDICTION
Learning Objectives
After reading this chapter, students will be able to:
1. Explain why a state has general power to make criminal law and to prosecute those who
violate the law.
3. Draw the boundaries for congressional power under the Commerce Clause to regulate
actions through criminal laws.
5. Describe the “Federal Domain.”
7. Describe the jurisdiction of Indian tribal courts.
Lesson Plan
Correlated to PowerPoints
I. Jurisdiction of the Federal Government to Enact Criminal Laws – Assignment 2, 3
Learning Objective 1: Explain why a state has general power to make criminal law and to
prosecute those who violate the law.
Learning Objective 2: List four of the specific powers granted to the federal government to
make criminal laws.
Learning Objective 3: Draw the boundaries for congressional power under the Commerce
Clause to regulate actions through criminal laws.
Learning Objective 5: Describe the “Federal Domain.”
Class Discussion/Activity
Where would jurisdiction lie in the case where Tabitha makes a
threatening and harassing telephone call from her home in Nebraska to
Dave who receives the call at his home in Montana, a violation of the
criminal statutes of both states? What difficulties might be encountered in
attempting a prosecution in either state? Can you think of any place on
earth, or the airspace around it, where a crime could be committed, but no
court would have jurisdiction?
A. The federal government is limited to enacting criminal laws based on the powers
granted to it by the U.S. Constitution.
B. The Commerce Clauses
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1. Article I, Section 8 of the U.S. Constitution contains 17 clauses, each
specifically conferring on Congress enumerated powers.
2. If an activity (e.g., legal or illegal drug trade) involves more than a single
state, Congress may regulate it by either criminal or civil laws. However, an
activity that is solely within a single state can be regulated by the state, but not
the federal government.
Media Tool
“The Commerce Clause”
http://video.pbs.org/video/2365002785/
o PBS video on the Commerce Clause.
o Discussion: Why do some people have a problem with Wickard v.
Filburn? How is the case related to the Commerce Clause? What
positive outcomes of the case can you think of? What negative
outcomes of the case can you think of?
C. Other Federal Jurisdictional Powers
1. Federal crimes fall into three classes
a. Crimes committed in places beyond the jurisdiction of any state
What If Scenario
A Texas schoolboy is convicted for carrying a gun on a Texas schoolyard under a federal statute.
The conviction is appealed to the U.S. Supreme Court. What is the outcome?
D. Federal Crimes Frequently Used to Support State and Local Law Enforcement
1. Unlawful Flight Statute
3. Federal Conspiracy
4. RICO (Racketeer Influence and Corrupt Organization)
E. The Federal Domain—One-Third of America
1. Territories and federal enclaves
2. Federal Enclaves, Territories and the Assimilative Crimes Act
a. Military installations, national parks and forests, and federal
buildings
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at the time of the defendant’s conduct
d. Generally does not operate if there is already a federal statute or
regulation
i. Must be of “general applicability”
F. The Expanding Federal Criminal Code
1. Over the years, the number of federal criminal laws has increased
II. Nation-to-Nation Jurisdiction – Assignment 4
Learning Objective 4: Explain the basis for an international court to claim jurisdiction over a
person charged with a violation of international law.
A. The laws of a nation follow its ships and aircraft
Media Tool
“Extraordinary Rendition”
http://www.pbs.org/frontlineworld/stories/rendition701/video/video_index.html
o Frontline video on people who have been prisoners as a result of
extraordinary rendition.
o Discussion: Should the federal government be allowed to use
extraordinary rendition? What purpose does extraordinary
rendition serve? Is this an individual act or is it policy? How
reliable is the information uncovered by such processes?
B. Rendition and the war on terror
1. “Extraordinary Rendition” is the practice of seizing foreign nationals in
one country and transporting them to another country for questioning or
prosecution
C. International criminal law
Class Discussion/Activity
Students can research the International Criminal Court website to see how
the court is organized and the types of important cases it has and is
currently deciding. The Internet site for the Human Rights Watch under
the link for “International Justice” has an easy to follow explanation of the
ICC and the cases it has handled. What are the advantages of the
International Criminal Court, over the temporary courts established in the
past? How effective can the ICC be if jurisdiction is limited to the
countries that ratified the Treaty of Rome?
What If Scenario
A Romanian man is on an American airliner flying from Europe to New York City. While in the
air, the man places his hand on the genitals of a 9-year-old Norwegian girl. Who has
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1. The U.S. has joined with other nations to define offenses against the law
of nations by international treaties and conventions.
3. The International Criminal Court (ICC), the first permanent war crimes
4. The United States did not ratify the Treaty of Rome that created the ICC
and is currently negotiating for immunity from prosecution by the ICC for
the U.S. military.
D. Jurisdiction of the sea approaches to the continental United States
1. Each nation has established territorial jurisdiction in the waters and
airspace around it.
2. The U.S. has claimed sovereignty over waters extending two hundred
nautical miles from the U.S. and its possessions.
E. The crimes of piracy, felonies committed on the high seas and offenses against the
law of nations
1. Pirates off the coast of Somalia
III. The Military, Martial, and War Powers Jurisdiction of the Federal Government
Learning Objective 6: Identify the jurisdiction of military courts.
Media Tool
“Assault in the Military”
http://www.youtube.com/watch?v=FTWRzNM31sY
o YouTube video discussing the problem of sexual assault in the
military.
o Discussion: Should the policies that currently deal with sexual
assault in the military be changed? How would proposed
legislation change these policies? What is the problem with
having sexual assault investigated within the military chain of
command?
What If Scenario
A civilian working on a military base is arrested for stealing money from the military. What
jurisdiction should be responsible for his prosecution?
A. Jurisdiction of military courts
2. The military justice system has jurisdiction to try a member of the armed
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service for any crimes committed on- or off-base as long as the accused
was a member of the military at the time of the alleged offense.
3. Civilians working with military units can also be subject to the Code of
Military Justice.
Class Discussion/Activity
Students should research the Uniform Code of Military Justice to see how
it differs from civilian justice. This project is especially appealing to
students who served in the military and have additional insights to offer to
the class about the M.C.J. As part of this assignment, students can also
research the Judge Advocate General’s Corp (J.A.G. Corp). Students
interested in going to law school may be particularly interested in learning
about opportunities in the J.A.G.
B. When U.S. citizens or military are in a foreign country
1. Americans who commit crimes in foreign countries are subject to
prosecution before foreign courts.
2. If a U.S. service person commits a crime while off-base, while off-duty,
Class Discussion/Activity
The war on terrorism has opened up new legal issues about persons
suspected of terrorism against the U.S. who are located both inside and
outside of the country. Some of those persons have U.S. citizenship and
some do not. The questions are quite complex and the law is evolving, so
there are a lot of gray areas and unanswered questions. Students can
familiarize themselves with these issues by visiting several Internet sites,
including the sites for the U.S. Department of Justice and the American
Civil Liberties Union (ACLU). There are many additional Internet sources
and news and magazine articles that analyze these issues. Key search
terms include “enemy combatants.” Students need to look for the most
recent news and analyses. What are military tribunals and what is their role
since September 11, 2001? Who can be prosecuted in a war tribunal and
for what offenses?
C. The use of national guard troops and curfews to assist police with riots and
disorders
1. Military forces have been used many times in the history of our country to
maintain public order and enforce laws.
D. The crime of the improper use of national or state guard troops
1. Federal and state National Guard troops (and other military) can lawfully
be used in disaster assistance, search and rescue missions, domestic
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they are needed to protect constitutional rights or to support a request from
a state, or to enforce federal authority.
2. The 1878 Posse Comitatus Act makes it a federal offense to use military
forces to execute the law without specific congressional authorization.
IV. Indian Tribes within the United States – Assignment 1
Learning Objective 7: Describe the jurisdiction of Indian Tribal Courts
What If Scenario
A non-Indian man is arrested by FBI agents on Indian land for attending an illegal dog fight. He
appeals his conviction stating that the federal government does not have jurisdiction? Is he
correct?
A. Indian tribal governments have Indian tribal courts and Indian police.
2. Public Law 280 transferred jurisdiction to the six states.
4. Indians who commit crimes while not on or within their reservation or
Indian country are subject to the laws of the state or government where the
crime was committed.
Lecture Notes
Jurisdiction is a word used in the criminal justice field in several different ways. Students may
laws is not enough. To enforce the law, a court must also have jurisdiction of the body of the
defendant.
The question of jurisdiction can become quite confusing. The war on terrorism has raised new
issues about which court has the jurisdiction to try cases involving enemy combatants. The goal
in Chapter 2 is to help students understand the complexity of jurisdiction. There are cases where
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law. Most criminal justice courses don’t address these other criminal justice systems. Students in
the military may be familiar with military justice, but most students will be surprised at the
Key Terms
jurisdiction – power to regulate conduct and punish an offender. (p. 36)
maritime jurisdiction – Jurisdiction of the United States over actions within territorial waters of
the U.S., on U.S. ships, or stateless vessels on the high seas. (p. 45)
Assignments
1. Have students describe the system of criminal justice on Indian reservations and the role
of tribal courts and the state courts where the reservations are located. Students can learn
2. Ask students to define, compare, and contrast “jurisdiction” and “venue.” There are a
number of high profile cases each year, nationally and locally, in which a defendant
3. Explain how the Commerce Clause is the basis for the federal government’s authority to
enact some criminal laws. Discuss a Supreme Court case that addressed the federal
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4. What is extradition and when does it become necessary? Some nations refuse to extradite
Case Analysis and Writing Exercises
1. The U.S. Supreme Court has routinely held that Congressional statutes do not have
“extraterritorial” application unless the statute clearly shows a contrary intent. Under that
rule, the Court has decided that the U.S. Securities laws do not have extraterritorial
application, unless (1) the case involves a purchase of a security listed on an American stock
exchange, or (2) the purchase or sale occurs in the United States. Does a purchase or sale
“occur” in the United States when the buyer/sellers use brokerage accounts located outside
the U.S. but use a “market maker” to complete the transaction? (A “market maker” is a
2. After the Supreme Court’s decision in United States v. Bond, discussed in this chapter, when
does use of a toxic chemical become more than a “purely local” crime? In United States v.
3. May police officers sitting in a New Jersey “listening post” monitor cell phone
conversations under the New Jersey Wiretapping Surveillance law, when those
conversations occurred in other states? May the state then use the conversations as evidence
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in a murder trial in New Jersey? See State v. Ates, 86 A.3d 710 (N.J. 2014), cert denied 135
4. Does the Uniform Code of Military Justice confer jurisdiction on military courts to try
charges of forgery of travel reimbursement forms by an army reserve member? If so, when?