The federal government treats it as a grave offense when someone in the United States possesses or uses any pathogen with the intent to harm others.
Biological weapons are considered very dangerous, and the legal consequences are severe. Any involvement with biological weapons is strictly prohibited, including facilitating other people with these types of weapons.
This includes viruses, bacteria, and other biological toxins. The law is embodied in Title 18 U.S.C. §175. If you are found guilty of violating this law, you could face a prison term of any number of years, all the way up to life imprisonment.
18 U.S.C. § 175 says, “whoever knowingly develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin, or delivery system for use as a weapon, or knowingly assists a foreign state, or attempts, threatens, or conspires, shall be fined or imprisoned for life or any term of years, or both. There is extraterritorial federal jurisdiction over an offense under this law committed by or against a national of the United States.”
Subsection (b) says, “whoever knowingly possesses any biological agent, toxin, or delivery system of a type or quantity reasonably justified by a bona fide research, will be fined and imprisoned for up to 10 years.”
Subsection (c) says, “the term “for use as a weapon” includes development, production, transfer, acquisition, retention, or possession of any biological agent, toxin, or delivery system for other than bona fide research purposes.” Domestic terrorism is defined under 18 U.S. Code § 2331(5).
What Does the Federal Law Say?
18 U.S.C § 175 prohibits anyone from possessing or using biological agents or toxins "for use as a weapon." The term "biological agent" means any microorganism, virus, infectious substance, or biological product used to kill or injure people.
The word "toxin" means a poisonous substance produced by a living organism. These definitions are comprehensive, which gives law enforcement much leeway in deciding what constitutes a violation of the law. Specifically, federal law makes it a crime to do any of the following:
- Develop, produce, stockpile, transfer, acquire, retain, or possess any biological agent, toxin, or delivery system for use as a weapon;
- Attempt, threaten, or conspire to develop, produce, stockpile, transfer, acquire, retain, or possess any biological agent, toxin, or delivery system for use as a weapon;
- Knowingly help or assist any foreign government or organization in any of the actions described above; OR
- Knowingly possess biological agents or toxins in any quantity other than is reasonable for peaceful purposes such as research, treatment of disease, etc.
Additionally, the federal government asserts "extraterritorial jurisdiction" regarding biological weapons. This means:
- The government can charge a U.S. national with biological weapons crimes anywhere in the world, even if the crime was not committed within U.S. borders; AND
- The government can charge any individual or organization with biological weapons crimes if they are committed against a U.S. national.
What are Some Examples?
EXAMPLE 1: Joseph, an epidemiologist, is contracted by a government with a history of terrorism to cultivate many infectious viruses.
Although they might say it's "for research," Joseph is aware that the government is using the viruses to develop biological weapons—but he takes the job for the money. Joseph can be charged under the federal biological weapons law.
EXAMPLE 2: Sarah, a medical student, is studying the effects of different antibiotics on various bacteria. As part of her research, she develops a new strain of bacteria resistant to all known antibiotics. She stores the bacteria in her home laboratory without taking any safety precautions.
Even though Sarah did not develop the bacteria for use as a weapon, she may be charged with violating the law because she knowingly possessed a biological agent serving no beneficial or peaceful purpose, and she kept it in an unprotected environment (i.e., her lab).
EXAMPLE 3: David is a microbiologist researching the effects of using certain toxins in minuscule quantities to combat a new virus spreading rapidly across the globe.
He uses his connections to acquire a modest amount of anthrax as part of his research, and it triggers an investigation by federal agents. David should NOT be charged under U.S.C. 175 because although he is acquiring and stockpiling a biological toxin, he is doing so in limited quantities for bona fide research and prophylactic purposes.
What Are the Related Offenses?
18 U.S. Code Chapter 10 lists the federal statutes addressing criminal behavior involving biological weapons, such as the following:
- 18 U.S.C. §175a - requests for military assistance to enforce prohibition in specific emergencies;
- 18 U.S.C. §175b – the statute prohibiting restricted persons from shipping or transporting biological toxins or agents in interstate commerce;
- 18 U.S.C. §175c - the statute prohibiting receiving, transporting, possessing, importing, exporting, or using the Variola virus;
- 18 U.S.C. §176 – this statute establishes the law on seizure, forfeiture, and destruction of biological agents, toxins, and delivery systems;
- 18 U.S.C. §177 – this statute establishes the circumstances when the United States government can seek an injunction;
- 18 U.S.C. §178 – this statute defines the keywords applicable to determine if you have violated any laws related to biological weapons.
What are the Penalties for Violating Federal Biological Weapons Laws?
The penalties for violating the federal biological weapons laws are severe. The penalties for conviction are as follows:
- If you are convicted of developing, producing, stockpiling, acquiring, or retaining a biological agent, toxin, or delivery system: the maximum (and recommended) sentence is life in prison. The judge may take certain mitigating circumstances into account to lessen your punishment.
- If you are convicted of possessing a biological agent, toxin, or delivery system in an unacceptable amount (i.e., more than is reasonable for bona fide peaceful purposes): the maximum sentence is ten years in prison.
What Are the Best Legal Defenses Against These Charges?
By the time you are charged with a federal crime involving biological weapons, federal prosecutors likely have ample evidence against you.
However, there may still be certain defenses a federal defense attorney may employ to exonerate you from the charges or minimize the penalties. The most common are discussed below.
Perhaps we can argue that you did not knowingly participate in the development, production, etc., of biological agents or toxins for weapons purposes. In other words, you worked with biological agents or were under a contract to do so, but you were unaware of their ultimate purpose.
Perhaps we can argue that you were acting with peaceful purposes. If you can show, for example, that you were utilizing the biological agents for legitimate research and only in the quantities required, you should not be convicted under U.S.C. 175.
Eisner Gorin LLP is located in Los Angeles, California. We provide legal representation across the United States o federal issues. For a case review and to discuss legal options, contact us by phone or fill out the contact form.
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