Say that you are in the Idaho portion of Yellowstone, and you decide to spice up your vacation by going on a crime spree. You make some moonshine, you poach some wildlife, you strangle some people and steal their picnic baskets.
Brian C. Kalt “The Perfect Crime” Georgetown Law Journal (2005)
The content of Kalt’s paper (which you can download here) is perhaps better known in the USA than here in the UK, so I apologize to my American readers if I’m rehearsing a well-known story for them.
Although Kalt’s paper is entitled “The Perfect Crime”, it doesn’t quite correspond to the general view of what constitutes a perfect crime—that is, one that either goes undetected or unsolved. Instead, Kalt reveals a situation in which the perpetrator is known, but cannot be brought to justice. This loophole in the law derives from the Sixth Amendment to the US Constitution, and from the peculiar legal geography of Yellowstone National Park.
First, the Sixth Amendment:
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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
I’ve emboldened the relevant phrase, which relates to the legal concept of vicinage—the defined area from which the members of a jury must be drawn.* Under the Sixth Amendment, then, the defendant is entitled to a local jury trial, defined by the state and the federal court district in which the crime was committed. The federal court districts are generally aligned with the state boundaries, with some states containing more than one district, as shown in the map below.
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.
As Sanders discusses, state law will often modify the broad Sixth Amendment vicinage for juries, applying the selection to smaller areas than the federal court districts.
So far, so good. But now Kalt moves on to Yellowstone National Park, created in 1872, mainly in Wyoming but extending a short distance into Montana around its northern and western margins, and a similar distance into Idaho at its southwest edge. When Wyoming, Montana and Idaho later achieved statehood, they ceded legal jurisdiction over the park land to the federal government. And the United States Congress, in a fateful moment of inattention, then assigned the whole of Yellowstone National Park to the Federal District of Wyoming—including the bits that lie within the geographical borders of Montana and Idaho. No doubt this seemed like the simplest solution to Yellowstone’s multi-state geography.
But, Kalt points out, anyone who commits a crime within the Montana and Idaho fringes of Yellowstone is entitled, under the Sixth Amendment, to be tried before a jury drawn from a geographical area that is both in the state in which the crime was committed and in the Federal District of Wyoming. So the panel of potential jurors would have to be inhabitants of the narrow strips of land falling both within the park boundary and within the boundary of the relevant state. In the case of Montana, this is an area of around 260 square miles, inhabited by a few dozen residents; in the case of Idaho, it’s 50 square miles, with a population of …. zero.
You see the problem. For the comically varied list of crimes Kalt gives in my quotation at the head of this post, committed within the Idaho region I’ve highlighted in pink in my Yellowstone map above, it’s impossible to provide the defendant with a jury trial under the terms of the Sixth Amendment. As Kalt summarizes the situation:
The Constitution entitles you to a jury trial and an impartial jury of inhabitants of the state and district where the crime was committed. The U.S. Code […] makes it impossible to satisfy both provisions in the case of the Yellowstone State-Line Strangler. Assuming that you do not feel like consenting to trial in Cheyenne [the location of the Federal District Court for Wyoming], you should go free.
Which is why Kalt has dubbed this little corner of Idaho the Yellowstone “Zone of Death”. In keeping with the general tone of the essay, it’s a tongue-in-cheek label for a legally vexatious situation, but it seems to have stuck—people seem to be more enchanted by the prospect of murderers going free than the idea that a poacher might get off without a trial.
Part III of Kalt’s paper quickly dismisses a couple of legal considerations that superficially appear to offer a route to a jury trial, but turn out not to. Part IV (entitled “Don’t Go Killing Anyone Just Yet: Some More Promising Cures”) deals with potential workarounds for prosecutors—charging the defendant with related crimes committed outside the Zone of Death, such as conspiracy; finding associated lesser crimes that don’t require a jury trial, such as carrying a firearm into the Park; and the prospect of civil liability. Then there’s the possibility of trying to populate the Zone of Death with potential jurors—Kalt walks us through the legal difficulties with that one, particularly if the attempt is retrospective.
As discussions of obscure legal problems go, this one is eminently readable and pleasantly amusing. But of course Kalt has a serious point to make:
It bears emphasis that the flaw here is really with the District of Wyoming statute, not with the Sixth Amendment. The solution is to fix the statute, not eviscerate the Constitution. If we do it quickly enough, no one will get hurt.
Kalt wrote his article in anticipation that the problem would be easily addressed and resolved by Congress. His follow-up article in the Georgetown Law Journal, “Tabloid Constitutionalism: How A Bill Doesn’t Become A Law” (2008) amusingly details how that very much didn’t happen—you can download it here. Kalt’s faculty page at Michigan State University also hosts an undated document detailing his amusingly irascible response to discussion of the Zone of Death on social media. It’s here, and worth taking a look at if you imagine you’ve got an ingenious solution to the problem Kalt has posed.
What does the Zone of Death actually look like? It’s a strip of land about 2½ miles wide and 24 miles long, running along the western border of Yellowstone from its southwest corner to the Montana border. A look at the area on Google Earth shows open forest and a few apparently fairly shallow lakes. It’s not accessible from the main road network of the Park—you either need to walk in cross-country, or approach via the seasonal gravel road that serves the Bechler Ranger Station from the town of Ashton, Idaho. The Ranger Station lies just a couple of hundred metres east of the Idaho-Wyoming border, and the gravel road makes enough of a westward curve to lie within the Zone of Death for much of its length. So the Zone is a pretty minimalist location for a crime spree—but that hasn’t prevented it appearing in crime fiction.
It first turned up, as far as I know, in C.J. Box’s novel Free Fire (2007). This was the seventh novel featuring Box’s crime-solving Wyoming game warden, Joe Pickett—the Zone of Death is practically custom-made for a Joe Pickett adventure. The plot opens with a local lawyer murdering four campers in the Zone of Death, and then immediately turning himself in to the authorities at Bechler Station, after which he walks free because of Kalt’s Yellowstone Loophole. So it’s a “whydunnit” rather than a whodunnit. It’s the only Joe Pickett novel I’ve read, and I admired the way the geography of Yellowstone was woven into the plot—I ended up reading it with a map of the park open on my lap. And the bizarre architecture of the Old Faithful Inn was likewise used to good effect. Unfortunately, I developed a deep dislike for Joe Pickett and his friend Nate Romanowski as the story progressed, so I’m not planning on reading any more of their adventures. The novels are, however, hugely popular, and Pickett seems to be a much-loved character for many people, so don’t let me put you off giving Free Fire a go yourself if the set-up sounds intriguing.
Then there was the mockumentary Population Zero (2016), written by Jeff Staranchuk and directed by Julian Pinder and Adam Levins. This is something of a curiosity, since Pinder is a serious documentary film-maker, who plays a version of himself in this work of fiction. The plot again involves a group of campers being murdered in the Zone of Death, after which the murderer surrenders himself to the authorities. His lawyer then invokes the Yellowstone Loophole, and the murderer goes free. Pinder and his cameraman set off to investigate the reasons for the murder, and to track down and interview the murderer.
C.J. Box has written that the plot of Population Zero is a “poor re-hash” of Free Fire, but the film and novel seem very different to me. I picked up on only two points of strong correspondence, beyond the obvious involvement of the Zone of Death—and it was of course Kalt, rather than Box, who first put the idea of murders being committed in this region into the public domain. The first correspondence between film and novel is one I’ve already mentioned—the murder of campers followed by surrender at the Ranger Station. The second is much more significant, and involves the final revelation of why some of the campers were killed. I shouldn’t give this one away, but I think it would be a quite remarkable coincidence if such an unusual plot element cropped up independently in film and novel. But between the opening scene and the closing revelation, the plots follow entirely different trajectories, and the final fates of the murderers couldn’t be more different.
Population Zero is a slow build, but Pinder is an engaging protagonist, and portrays a slow descent into obsession and paranoia well. Of the two fictional accounts, I have to say I much prefer Pinder’s film.
* The word vicinage comes from Latin vicinus, “neighbour”, which also gave us English vicinity and French voisin.