cartoon woman anger fear horror scream
A prominent member of the gun control industry reacting to the latest news (Shutterstock)

A few years ago, Michigan State University law professor Brian C. Kalt was writing a paper on the intricacies of the Sixth Amendment, when he realized that there might be places in the United States where it’s difficult or impossible to select a suitable jury. Why? Because the Constitution is very clear and very picky about juries:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…

So, if the government wants to convict you of a crime (and you don’t waive your right to a jury trial), they have to pick a panel from the people that live in both the state and federal court district where the crime happened. Normally, that isn’t a problem, because district boundaries encompass states in their entireties and include populated areas from which to select jurors.

But Professor Kalt decided to take a careful look at the maps to see if there are any places without enough residents to form a jury. In his search he was surprised to find a place where the stars align to make for an impossible trial: a 50-square mile strip of land in Idaho that runs along the western edge of Yellowstone National Park.

Map by the National Park Service (red marking of the “Zone of Death” added).

Yellowstone National Park predates statehood of the states it’s in (Wyoming, Montana and Idaho), and when those states were formed, they gave the federal government all jurisdiction over the lands that make up the park. You can’t be convicted of a state crime in Yellowstone. Federal laws apply there and you can still be arrested by federal law enforcement and tried in a federal court.

Congress, however, made a small mistake when drawing the district court boundaries for Yellowstone. Probably out of laziness, they put the entire park in the Wyoming District Court’s jurisdiction. If you commit a crime in the Wyoming part of the park, there are plenty of people living in the state who can serve as jurors. So don’t pull a Yogi and steal anyone’s pick-a-nic basket there.

If you happen to be in the parts of the park that lie outside of Wyoming, however, the district court has to follow the Sixth Amendment when picking your jury. That means the jurors have to live in both the state and the district where the crime occurred. For the parts of the park that are in Montana, that’s no easy task, but it’s at least technically possible, as a few people live there.

Oddly enough, this loophole hasn’t ever been tested, despite a good opportunity to do so.

A poacher who was caught illegally taking an elk in the Montana portion of the park tried to raise the ‘Zone of Death’ issue. The Wyoming District Court ruled that there was no case law supporting his motion to dismiss the case on the grounds that a jury would be impractical to form.

But he didn’t go to trial — he took a plea deal —  and thus didn’t demand a constitutionally-compliant jury be formed. So the question of whether he could be tried by a Wyoming jury in Montana was never tested by courts at any level. He also waived his right to appeal based on the Zone of Death argument, so that one instance will never get to be a test case.

Yellowstone National Park waterfall
Cave Falls, on the Falls River in the extreme southwest corner of Yellowstone National Park. (Harry Bryan/National Park Service)

The section of the park that lies in Idaho, though, is even less hospitable to jury trials. It has zero human residents. So, in that small strip of land, the state government can’t try you for state crimes and there’s not population from which the federal government can select a jury that respects the accused’s Sixth Amendment rights.

A motion to dismiss probably wouldn’t fly any more than it did in the Wyoming part of the park, but it seems very unlikely that a decision by a Wyoming jury for a crime committed in Idaho or a decision by an Idaho jury that’s not in the Wyoming district would survive on appeal, assuming a judge is ballsy enough to apply the law and doesn’t lean on the defendant to take a plea deal and keep that hot potato out of his or her lap.

That’s why Kalt nicknamed that area the “Zone of Death.” In subsequent writings, he tells of his attempts to get Congress to act and move the district boundaries to make trials in the Zone of Death possible. He even addresses the nearby Montana non-test case, showing that the loophole in the law is still wide open, having never been shut by statute or case law.

Don’t Go Strangling Someone in Far Eastern Idaho

While Kalt discovered this legal no-man’s land in Idaho, it was neither his goal nor mine to encourage people to do immoral things in that narrow strip of land. And by morality, I’m not talking about the sexual ethics, Christianity values or the various “microaggressions” you can commit under progressive ideology. I’m talking about blatantly immoral violent acts, such as murder or beating someone half to death without justification (like self defense).

Seriously, don’t go killing someone at Yellowstone and say Jennifer sent you, because I didn’t.

It would be interesting, however, to commit some malum prohibitum violation of the law in the Zone of Death, though. I’m not a lawyer and you definitely shouldn’t take legal advice from me. So, don’t get into any trouble based on what I think is an interesting legal argument. Nobody should to risk time in federal prison just to make a point.

What we should really do, though, is raise the specter of an “Idaho Freedom Zone” where the Karens of Brady, Giffords and Everytown know people can do scary things like build “ghost guns” or make unregistered machine guns and possibly get away with it (without actually doing it). That would probably be enough to spur Congress to do what they should have done in the first place and fix the loophole that created the Zone of Death in the first place.

The possibility of someone getting away with murder obviously wasn’t enough to prompt Congressional action. The possibility of people having too much freedom and violating the NFA, however, would probably do the trick.

If they fix it now, though, after all these years, because of something as trivial as someone putting a pistol upper on a rifle lower, we’d be able to rub their noses in it forever. And wouldn’t that be fun?

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32 COMMENTS

  2. “Zone of Death”…sounds like a bad sci-fi movie🙄 If I go there and spree kill I’ll blame Jennifer. She planted the idea in my head😎 Then again “zone of death” sounds like large swaths of Chiraq.

  3. That’s not the only thing I’d like to rub Congress’s collective noses in…(think new puppy).

    • Montana, yer too nice. I have entire torture chambers drawn up on my cad program. I should prob delete them, pretty sure I have the more effective features more or less memorized by now…

  4. What about having an article about the impossibility of a conservative getting a fair trial in a blue state or the communist D C enclave.

  5. The only problem is, the only way into and out of the ‘Zone’ is through territory where you can be arrested, tried, convicted, and sentenced…

    • Nope. Crime needs to be committed IN the jurisdiction that is asserting its laws. I can violate the law in Oregon; KKKalifornia does not have the right or jurisdiction to try me for it.

      This is the constitutional/legal issue with “extra-territorial” laws, like proposed bans on people seeking abortions outside of the state. If Texas bans abortions, and Texans go to New Mexico to get an abortion, Texas can pass all the laws it wants, but that Texan and her (note, dacian the demented, I said “HER” – I’m not a biologist; I know what a “woman” is) activities are not subject to prosecution in Texas. Texas can try, but I guarantee that will be struck down – probably in a 9-0 ruling.

  6. UUUUM MAKING OF A MOVIE .. LEAVE ALEX BALDWIN OUT OF IT , MAYBE PUT HIM IN IT ,
    O HE UP IN IT TO HIS NECK ANYWAY …

    • I’m on line now renting a fleet of buses. Can you get the congress critters lined up outside the Capitol for a bulk load ’em up????? Even if we lose the test, the end would be worth the effort. At my age, death or life in prison has lost its sting…..hardly even an oowie…..just takin’ one for the Flag. OH, you know I’m kidding……………………………

  9. What a douch bag. Someone trying to murder you and you defend yourself. I would take my chances in eastern Washington, northern Idaho or eastern Montana, where the constitution still applies.

  10. What a douch bag. Someone trying to murder you and you defend yourself. I would take my chances in eastern Washington, northern Idaho or western Montana, where the constitution still applies.

  11. Totally overblown. A couple people who I’ve been in a long-standing disagreement with asked if we could all bury the hatchet. We’re going to camp at Buffalo Lake in SW Yellowstone. They said it will be a trip to remember. No worries.

  12. IIRC at the time the Constitution was written the term “district”was not a legal term and referred to a smaller area than a state, meaning the general area the person lived in. Given that, this whole thing is pointless.

  13. In the TV series Yellowstone, I think this is the place where they dump bodies. If memory serves, they said there’s not anyone to serve on a jury, there’s no one to elect or run for sheriff, and it doesn’t fall into any specific jurisdiction. If it’s not the same place, it’s very similar and the show takes place in Montana.

  14. Much has been made of this, and raised it to urban myth proportion. Although an interesting concept that has not been determined in terms of boundaries and is technically not in the district the federal government owns the land and still exercises jurisdiction and the federal government can exert ‘prosecution jurisdiction’ over any federally owned land. The forum selection clause can work both ways, its a pain and a legal minefield but it can probably be done.

    • Kalt paints this scenario in terms of the sixth amendment and article III section 2: Court would need to be held in the state where you committed the crime (Idaho), but also technically in the district where you committed the crime (Wyoming).

      Technicalities that don’t take precedent over the provision of the sixth amendment right. The land is federal land, the fact that you demand a ‘speedy and public trial’ under the Sixth Amendment imposes a burden on government to provide it no matter the federal court venue in which it happens and there have been precedents where the federal courts have moved a ‘speedy and public trial under the Sixth Amendment’ into a court jurisdiction to ensure that ‘speedy and public trial’ as that’s deemed more important than the venue in which its heard. So I tend to think the courts would work this out, and maybe at some point it would go to SCOTUS on appeal and they would probably apply a reasoning that it was more important to uphold the ‘speedy and public trial’ under the Sixth Amendment as a jury selected from elsewhere can still weigh the facts of the case based upon the merits and evidence and that reasoning ability has no boundary defined by a line drawn on a map. But also in Article III section II the very first thing we see “The judicial Power shall extend to all Cases,” and the federal government is very unlikely to cede ‘judicial Power’ due to a technicality to fail to carry out the demand for ‘speedy and public trial’.

  15. when the national divorce happens
    which by the way
    now that president just used the legal terms
    “clear and present danger” and
    “enemies of the state” to describe his political enemies
    is no longer over the horizon
    most of washington state and oregon
    and much of california
    will become part of whats now known as
    “idaho”

  16. You know, once upon a time, people weren’t terribly shocked at the idea of there being no law in remote wilderness where literally nobody lived.

  20. Best-selling author CJ Box set one of his Joe Pickett murder mysteries in the Zone of Death. It is titled Free Fire, published back in 2007. Great book – you should read it!

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