State Con Law Case of the Week: Vicinage Deference

Anthony Sanders · May 28, 2021

One of the least talked about provisions in the U.S. Constitution’s Bill of Rights is the Vicinage Clause. After guaranteeing a speedy and public trial the Sixth Amendment says that trial shall be “by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” We call this the “Vicinage Clause” because it regulates the jury’s vicinity. The people who render a verdict on the defendant’s guilt must be from, at a bare minimum, the state where the crime occurred. This, of course, goes to the ancient principle that juries should be drawn from the same community as the crime because they better understand its impact and can serve as a check on overzealous prosecutors.

Unlike most of the Bill of Rights, the Supreme Court has never ruled on whether the Vicinage Clause applies to the states, that is to state and local governments conducting criminal prosecutions in state courts. Likely that’s because most states have their own similar clauses in state constitutions, and if they don’t they have vicinage legislation or the same principles enforced by their courts. And almost all the time those state requirements are going to be stricter than the Sixth Amendment.* Many states only have one federal “district,” and at most four, while states often apply their vicinage requirements to counties, which are much smaller. (Although this didn’t prevent the California Supreme Court from ruling, in 1973, that the Vicinage Clause not only applied to the states, but should be read to apply to California’s own “districts” within counties. Unsurprising, the case was later overruled.) Illinois’s constitution is one example. Article I, Section 8 guarantees a trial “by an impartial jury of the county in which the offense is alleged to have been committed.”

Both the Sixth Amendment and Illinois’ version are fairly straightforward in most cases. But what about where the offense has been committed in more than one place? Last week the Illinois Supreme Court addressed this when it applied its constitution to the crime of identify theft in People v. Bochenek.

With some crimes, of course, “where” it occurs can arguably be all kinds of places. For example, a cybercrime could conceivably happen where the criminal physically is, where a merchant who sells goods through a fraudulent order is, or even where the various servers that facilitate the sale are. The Illinois legislature—the General Assembly—has thus given prosecutors some leniency in where the a case can go forward by allowing it where “(1) the offense occurred; (2) the information used to commit the offense was illegally used; or (3) the victim resides.”

Although cybercrime was in the background, Bochenek involved a much more mundane situation. The defendant used another person’s stolen credit card to buy cigarettes at a gas station. The gas station was in Lake County, north of Chicago, while the rightful holder of the credit card lived in DuPage County, west of Chicago. Bochenek was tried and convicted in DuPage, with Section (3)—where “the victim resides”—as the vicinage hook.

The defendant argued this was unconstitutional because the crime simply isn’t “committed” where a victim of identify theft resides. The court disagreed, stating that since identify theft involves the use of information unique to the victim (such as credit card numbers, Social Security numbers, etc.), that information has to exist somewhere, and that logically can be where he or she resides. In doing so the court declared “We may not substitute our judgment for that of the General Assembly on the question of where identify theft is committed.”

Now, the court could be right about “where” personal information “is.” (Although, this case, where the defendant physically used a physical credit card at a gas station, doesn’t seem to be one that raises that metaphysical question.) But we should always be highly suspect when a court waives its hands and defers to the legislature. The General Assembly can’t be the only judge on whether its statute is within the bounds of the state constitution—that’s what judicial review is for in the first place. It is especially in this situation—where the constitution is drawn up to protect criminal defendants from both overzealous prosecutors and legislators—that the courts must be most vigilant in maintaining their independence and engaging with the constitution, not abdicating their duty to enforce it.

This particular matter might not be the most compelling one to adhere to the plain text of Illinois’ Vicinage Clause—and, since both Lake and DuPage are within the federal Northern District of Illinois, you probably couldn’t “make a federal case out of it”—but if courts don’t engage with the facts and constitution in one case they’re even less likely in the next one.

*The one exception is in Yellowstone National Park, where the District of Wyoming actually goes into Idaho and Montana. You can read about this fascinating “loophole” in federal law in the classic article by Professor Brian Kalt, The Perfect Crime.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.