I just an an really interesting piece to be published in the Georgetown Law Journal (shocking itself, it’s also a good read) that argues there’s a 50 square mile area in the U.S. where felonies can’t be prosecuted: the portion of Yellowstone National Park which is in the state of Idaho.
The Constitution’s 6th Amendment requires that juries be picked from the same district and state in which a crime is committed. Federal law sets the district governing all of Yellowstone as Wyoming — logical, as the park is 91% in the state of Wyoming. The districts of Montana and Idaho exclude the park.
So juries must be chosen from the District of Wyoming to prosecute crimes committed in the park. However, if the crime is committed in that part of the park that is in Idaho, juries must be chosen from the state of Idaho. And only that 50 square mile area of the park overlaps both requirements. The problem is that no one lives there so it is impossible to form a jury.
Naturally the article deals with potential objections, and points out that some crimes may have federal (firearms violations) or multistate (conspiracy) elements so it’s not a certainty that legal violations would go unpunished. And crimes with a penalty of less than six months’ imprisonment do not require jury trials and so would be unaffected.
But an interesting constitutional challenge nonetheless, and one that may warrant a change to federal law.
(Hat tip to the Volokh Conspiracy.)