Johnny Cash and Personal Jurisdiction
Theo Bruening
June 1, 2020
If you shoot a man in Reno, Nevada, just to watch him die, why are you doing time in Folsom Prison, California?
Not long ago, I was taking a deposition a few hundred miles and a couple of states south of New York, which is the office I work out of. Driving back to the airport, Johnny Cash’s Folsom Prison Blues came on my playlist, and a question occurred to me:
If you shoot a man in Reno, Nevada, just to watch him die, why are you doing time in Folsom Prison in California?
This is, of course, an age-old question that many lawyers before wondered about while listening to this song. (At least I think other attorneys must also wonder about stuff like this constantly. I can’t be the only one, right? Right?)
Criminal justice, like police powers, is based on territoriality, i.e. where a person is and where the act in question occurs. See e.g. The Schooner Exch. v McFaddon, 7 Cranch (11 US) 116, 144 (1812). Criminal justice is thus a state issue except for those instances expressly reserved for the federal government.
Nevada defines murder as “the unlawful killing of a human being… With malice aforethought, either express or implied…” (Nev. Rev. Stat. Ann. § 200.010) The lyrics are clear: “I shot a man in Reno just to watch him die.” Thus the actus reus is established, he both killed a person, and he did so in Reno. The mens rea – just to watch him die – also seems well-established; killing someone just to witness a death would qualify as “malice aforethought.” The corpus delicti of murder is thus established under Nevada law.
I set out to think up a factual scenario that would fit the song’s lyrics. The following options seemed possible:
1. It was a federal crime and thus the prosecution and subsequent incarceration was not bound to the state it occurred in. Federal crimes exist, including murder (e.g. 18 U.S.C. § 1111), or the victim was a federal employee or killed on federal land (Nevada is after all 84.9% federal land). It is possible that the eighth line of the song refers to a killing prosecuted under a federal statute, or of a federal person, or on federal land. However, Folsom Prison is a state prison, not a federal penitentiary. So, this is clearly not the correct answer.
2. Maybe the perpetrator was a California resident, who plotted several crimes in California against California residents, except that one moved to Reno, where he killed him. California extradited him and sentenced him to life in prison (he would not get the death penalty though – Folsom has no death row, he’d be in San Quentin instead (for all the nitpickers, yes, Folsom technically did carry out executions between 1895 and 1937. However, Folsom Prison Blues was released in 1955, and Johnny Cash was born in 1932, so it is doubtful that he was thinking of Folsom as death row.)). Nevada then does not bother to prosecute because the perpetrator is already put away for life. However, the song does not indicate with a single word that any crime was committed outside of Reno, and like a judge reviewing a motion to dismiss, any explanation for this conundrum must arise from the four corners of the lyrics. This answer is therefore also not satisfactory.
3. Maybe it was a conspiracy, or an organized crime killing, and the majority of relevant events took place in California and the perpetrator did not step into Nevada at all? However, any such organized crime would likely be prosecuted by federal authorities under RICO, as would most cross-state crimes. And in any case, the lyrics do not indicate any larger criminal plot – the killing literally (and metaphorically, one hopes) only occurred because the perpetrator wanted to watch a man die. Moreover, if the death occurred in Nevada, Nevada would have jurisdiction since it could hold the perpetrator – who caused the death through the conspiracy – to be constructively present. Commonwealth v Thomas, 410 Pa 160, 166, 189 A2d 255, 258 (1963). In short, any crime that wholly takes effect outside of Reno cannot be the solution.
4. What if the perpetrator was arrested and tried in Nevada, but the state sent him to a private prison in California? This too is an incorrect explanation since Folsom is operated by the California Department of Corrections and Rehabilitation, not by any private entity such as the CCA.
5. What if the victim was shot in Reno, but did not die in Reno? If he was shot and then made his way into California, the perpetrator might have followed him because he wanted to watch him die. The victim eventually died in California where the perpetrator, who watched him die, was arrested. Under the dual sovereignty principle, when a person “in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offences,’” the double jeopardy clause of the fifth amendment notwithstanding. Heath v Alabama, 474 US 82, 83 (1985). Thus, the perpetrator might be in Folsom pending the extradition to Nevada. However, the lyrics indicate that it is a long-term stay (“I ain't seen the sunshine since I don't know when / I'm stuck in Folsom prison, and time keeps draggin' on”). Nor is it clear that California would have jurisdiction here either since not every element of a crime confers jurisdiction and the “gravamen” of the crime – which is required for jurisdiction – is still in Nevada. People v Holt, 91 Ill 2d 480 (1982). In short, the jurisdiction for murder tends to be where the act of killing took effect, not where the act began or where the victim died (unless it’s a bullet crossing state lines, see below). The Court in Holt suggested – in interpreting an Illinois Statute – that a State in which the result does not occur has jurisdiction based on conduct if the conduct within the State amounts to an attempt to commit the offense. People v Holt, 91 Ill 2d 480, 489, 64 Ill Dec 550, 554, 440 NE2d 102, 106 (1982). In other words, Nevada – if it had the equivalent to the Illinois statute from Holt – would be able to prosecute the perpetrator. But that still does not explain why he would be in a California jail. See also State v Gessert, 21 Minn 369, 369 (1875), holding that the location of the assault causing the death, rather than the location of the death itself was determinative of jurisdiction. Pollard v State, 270 Ind 599 (1979) is similar. Here, a victim was wounded but not killed in Indiana; the perpetrators then drove him to Kentucky, where he was shot and died. The court held that because there was an “integral relationship between the assault, abduction and murder of the victim”, Indiana had ample jurisdiction. The court did not, however, explore whether and why Kentucky would have jurisdiction, which leaves us none the wiser with regard to how the perpetrator in Johnny Cash’s lyrics wound up in a California prison.
6. The model penal code is more ambiguous – it would allow both California and Nevada to prosecute the perpetrator: “Except as otherwise provided in this Section, a person may be convicted under the law of this State of an offense committed by his own conduct or the conduct of another for which he is legally accountable if (a) either the conduct that is an element of the offense or the result that is such an element occurs within this State.” (Model Penal Code § 1.03, emphasis added). Alas, California has not adopted this part of the MPC.
7. However, another interpretation of “I shot a man in Reno just to watch him die” might help. “In Reno” might just refer to the victim (“a man in Reno”), rather than to the perpetrator. What if the shot was made in California, and the bullet traveled over the state line to Nevada, where it hit “a man in Reno”? The perpetrator could “watch him die” through the scope of a sniper rifle (in fact, the perpetrator needn’t be successful in watching the victim die; it was only the motive for the shot). Sniper rifles can fire up to a distance of two miles; Reno downtown is approximately five miles from the California border, however, Google Maps indicates that parts of Reno adjoin the California border:
However, there is ample case law establishing that where a bullet travels across borders, jurisdiction exists only where the bullets strike, not where they were shot from. E.g., United States v. Davis, 25 F. Cas. 786, 787 (C.C.D. Mass. 1837) (No. 14,932) (Story, J.) (bullet fired from an American ship killing victim on foreign ship gives sole jurisdiction over the crime to foreign ship’s sovereign), Simpson v State, 92 Ga 41, 43, 17 SE 984, 985 (Ga. 1893) (bullet fired across a river from South Carolina into Georgia gave Georgia jurisdiction since the perpetrator’s “presence need not be actual [but] may be constructive”), State v Hall, 114 NC 909, 911, 19 SE 602, 602 (NC 1894) (bullet shot from North Carolina into Tennessee, holding that unless a statute specifically provided jurisdiction to North Carolina, Tennessee would retain jurisdiction even where both the shooter and victim were North Carolina citizens).
My research was getting desperate. No solution seemed to fit. Of course, it is possible that Johnny Cash was not thinking like a lawyer when he drafted that song. But there’s no fun and no challenge in simply conceding that there is no factual scenario that would fit these lyrics.
Finally, while perusing a map of California, it occurred to me that the four corners of the lyrics only state that the perpetrator “shot a man in Reno just to watch him die.” The song does not refer to Reno, NV, it only refers to “Reno.” Maybe the perpetrator simply killed someone inReno Junction, CA!