Update 2/25/15: In a 5-4 decision the Supreme Court today ruled in favor of Yates, finding that fish are not “tangible objects” under 18 U.S.C. 1519. I’ll have an analysis of the opinion in next week’s post.
There are too many crimes on the books and too many criminal cases being filed. That was the argument of many who weighed in at the Supreme Court in support of a fishing captain charged with a twenty-year felony for throwing some undersized fish overboard.
Yates v. United States: Did the Prosecution Go Overboard?
I first wrote about Yates v. United States when the case was argued last November. It raises the novel legal question whether a fish is a “tangible object” within the meaning of a federal obstruction of justice statute. More broadly, though, the case has launched a renewed debate about overcriminalization in federal law.
To recap, John Yates is a commercial fisherman who was catching red grouper in the Gulf of Mexico. An inspector boarded his vessel and discovered about 70 fish that were below the legal minimum size. He issued Yates a civil citation and told Yates to keep the undersized fish in storage until he got back to port, where they would be seized by federal officials. Once the inspector left his boat, however, Yates ordered one of his crew members to throw the undersized fish overboard and replace them with larger ones. He also instructed his crew to lie to the federal officials at the port about the destruction of the fish.
Three years after this incident, Yates was indicted for three federal crimes: destroying evidence to prevent its seizure (18 U.S.C. § 2232), false statements to a federal official (18 U.S.C. § 1001) and obstruction of justice (18 U.S.C. § 1519). The obstruction statute provides a twenty year penalty for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration” of any federal matter.
Yates’ primary argument in the Supreme Court is that Section 1519, which was passed as part of the Sarbanes-Oxley reforms in the wake of Enron and other corporate scandals, is an “anti-shredding” provision aimed at the destruction of documents and other records. In context, he argues, the term “tangible object” in the statute refers only to objects that may store information within them, such as computer hard drives or flash drives. It does not cover other kinds of objects – including fish.
The Issue of Overcriminalization
The meat of the Yates case involves canons of statutory interpretation and what Congress actually meant by the term “tangible object,” but the argument took place against a larger backdrop concerning the issue of overcriminalization. A number of the groups who filed amicus briefs in support of Captain Yates focused on these broader policy concerns, with the central point being: can’t we all agree it’s a little bit nuts that throwing some undersized fish back into the ocean could get you thrown in jail for twenty years?
Federal overcriminalization has been an increasing concern in recent years, spawning lots of commentary and even Congressional hearings. In a 2009 book Three Felonies a Day, defense lawyer Harvey Silverglate argued (with a bit of hyperbole) that given the vast number of federal crimes and how broadly they are written, each of us probably commits three felonies a day just by living our lives.
Overcriminalization has even spawned a Twitter feed, A Crime a Day (@CrimeADay), which Tweets out a daily citation to a frequently obscure, and occasionally silly, federal crime. Recent examples: “18 U.S.C. §707 makes it a federal crime to use the words ‘4-H Club’ without authorization” (Feb. 6); “16 U.S.C. §460k-3 & 50 C.F.R. §32.34 make it a federal crime to use a motorboat to hunt a groundhog in the Tallgrass Prairie Wildlife Refuge” (Feb. 2).
Overcriminalization actually refers to several different but related arguments: there are too many criminal laws, the laws are too broad and vague, and prosecutors are bringing too many inappropriate cases.
#1: Too Many Criminal Laws on the Books
There are undoubtedly too many federal crimes — so many, in fact, that no one really knows the exact number. A group of criminal law professors who wrote an amicus brief on behalf of Yates claimed that there are currently some 4,500 criminal laws and more than 300,000 criminal regulations.
The criminal code has been stitched together piecemeal over more than 200 years, with individual statutes often passed in response to the “crisis du jour.” This results in overlap, redundancy, and disorganization. The Sarbanes-Oxley amendments that included 18 U.S.C. § 1519 are a good example: in response to Arthur Andersen’s massive shredding of Enron documents, Congress passed several new obstruction of justice statutes that were largely unnecessary and redundant.
Congress has an incentive to tackle almost any problem by throwing criminal penalties at it to demonstrate they are taking it seriously. Conversely, there is very little political upside for a politician to repeal or cut back unnecessary or excessive criminal laws, lest she be labeled “soft on crime” in an opponent’s 30-second attack ad during the next election. Once on the books criminal laws tend to stay on the books – and to multiply.
But although the existence of many statutes covering relatively arcane matters makes good fodder for sites such as @CrimeADay, it’s not the root of the problem. It’s amusing to point out that it’s a federal crime to use the Smokey Bear character without authorization (18 U.S.C. § 711) or to transport water chestnut plants in interstate commerce (18 U.S.C. § 46), but cases charging those offenses are not exactly crowding the criminal dockets. Most prosecutors have probably never heard of them. If we have large numbers of crimes that are relatively unknown and largely unenforced, that’s more of an aesthetic problem than a practical one. Even if you think we all may commit three felonies a day, the fact remains the feds aren’t swooping in and arresting us.
Critics also argue that the vast number of federal statutes on the books gives prosecutors too much power to pick anyone they wish to target and then find some obscure offense with which to charge them. Although this could be an issue in a rare case, for the most part I think the fear is misplaced. If you have a prosecutor with a bad motive, scaling back the number of crimes won’t really solve the problem. Most cases involve multiple potential violations from which a prosecutor may choose. Yates, for example, was charged with three different crimes, and potentially could have been charged under a different obstruction statute even if §1519 does not apply.
In other words, even if §1519 were not on the books and we weren’t debating whether fish are tangible objects, it would not mean there was no way to charge Yates with a crime. You could probably reduce the number of federal crimes by two-thirds and still not have much of an impact on a prosecutor who was determined to target someone with a criminal case. If a bad prosecutor really wants to go after someone for the wrong reasons, he or she has plenty of weapons. In such a case the problem is the prosecutor, not the criminal laws.
#2: Existing Laws Are Too Broad and Vague
Arguments about overcriminalization also frequently focus on the breadth and vagueness of various federal criminal statutes and the amount of conduct they seemingly cover. During the Yates oral argument the Court was definitely concerned about overbreadth. Justice Alito at one point noted that the statute could apply to “very trivial matters” and yet carries a twenty-year penalty. But although this is true, it is nothing new.
Criminal statutes – particularly white-collar statutes — frequently need to be written in sweeping language in order to cover the full range of potential criminal conduct. Federal mail and wire fraud, for example, broadly prohibit any “scheme or artifice to defraud,” and the same twenty-year felony applies both to Bernie Madoff and to an employee who submits a phony expense report on-line. It’s not that easy to write an obstruction of justice statute that would cover, say, the destruction of a murder weapon in a homicide but would exempt the destruction of Captain Yates’ fish. As a result, the same statute may apply to criminal conduct that is vastly different in terms of its severity or harm caused.
The breadth of the criminal statutes authored by the legislative branch is usually tempered by the two other branches. The judicial branch, in extreme cases, may find a statute unconstitutionally vague or overbroad. But in every case it is the judge who determines the appropriate sentence. Yates, for example, was convicted of a 20-year felony but the judge sentenced him to only 30 days. Former Virginia Governor Bob McDonnell was recently convicted of eleven felonies and in theory faced up to 190 years in prison — but the judge actually sentenced him to only two years.
That’s why all of the hue and cry about Captain Yates facing a twenty-year felony was mostly rhetoric. No one on either side ever believed Yates would actually receive twenty years. Given the enormous range of criminal conduct that may fall within the same statute, the system relies on judicial discretion to fashion an appropriate sentence. Particularly now that the Sentencing Guidelines are no longer mandatory, judges have substantial ability to do just that.
The second mechanism for limiting the scope of potentially overbroad statutes is prosecutorial discretion: the executive branch’s obligation to decide what cases to bring and how to charge them. It’s prosecutorial discretion that I believe is really at the heart of the current debate about overcriminalization.
#3: Prosecutorial Discretion – Or the Lack Thereof
There is an increasing sense among many, including perhaps the Supreme Court, that federal prosecutors are no longer doing a very good job deciding when to bring federal criminal charges. At the Yates oral argument, Justice Scalia asked incredulously what kind of “mad prosecutor” would charge Yates with a twenty-year felony. Justice Kennedy went so far as to say he wasn’t sure if prosecutorial discretion was a concept the Court should even rely upon any more.
Yates arose in the shadow of a case from last term that raised similar concerns, Bond v. United States. In Bond a jilted wife tried to injure her husband’s lover by sprinkling some caustic chemicals on her mailbox and doorknob. The chemicals caused a slight skin irritation on the woman’s thumb that was easily treated with cold water. Federal prosecutors subsequently charged Bond with violating a statute prohibiting the use of chemical weapons. The Court ultimately held the law did not apply to Bond, but was clearly troubled that prosecutors would seek to apply a federal chemical weapons statute to a relatively minor offense that easily could have been prosecuted under state law. During the Yates oral argument Justice Scalia asked sarcastically whether the prosecutor in Yates was the same one who had charged Bond.
I believe the real issue in overcriminalization is not so much all of the laws on the books or the breadth of those laws, but how prosecutors choose to enforce them and what cases they decide to bring. Looking at Captain Yates, for example, there’s no question his conduct deserved to be punished. But the underlying misconduct – catching the undersized fish – was only a civil violation. Surely some other kind of civil penalty, such as a hefty fine or the suspension or revocation of his fishing license, could have served to deter similar misconduct and adequately punish him.
It’s hard to know the exact scope of any problem concerning prosecutorial discretion. The extreme cases such as Yates and Bond tend to get all the attention – and as they say in journalism, nobody writes about all the planes that don’t crash. But it does seem there has been an unusual number of recent high-profile examples of federal prosecutors bringing substantial criminal charges in cases that look like they could have been handled some other way. When you have Supreme Court Justices suggesting that the concept of prosecutorial discretion doesn’t mean anything any more, it’s probably time to sit up and take notice.
I wonder if this issue isn’t symptomatic of the general increased polarization we see in public life and public discourse. In politics, compromise has become a dirty word, and the country seems increasingly divided. If the rest of society tends to place people in opposite camps with little room for middle ground, then perhaps there is a risk that prosecutors too increasingly come to view people either as good guys or as criminals, with little recognition of the many shades of gray in between those two extremes.
I have a friend and former colleague who likes to describe the problem by noting that when your only tool is a hammer, every problem starts to look like a nail. When you’re a federal prosecutor, there’s a risk that every problem starts to look a crime. But of course many bad acts aren’t crimes and aren’t really a prosecutor’s problem at all. There’s a lot of sleazy, rotten, unethical, nasty stuff that goes on in the world that isn’t criminal – and shouldn’t be. And even if you can find a charge that might apply, that doesn’t mean a criminal prosecution makes sense.
This is a primarily a matter of training and prosecutorial culture. Young prosecutors need to have it drilled into them from day one, so the sound exercise of their discretion becomes a fundamental part of their professional identity. In a world of limited resources (and seemingly unlimited criminal laws) prosecutorial discretion is an essential part of our system, but to be effective it must be exercised with some wisdom, compassion, and common sense. That only comes with experience, and with training and supervision from those who have experience.
Not every problem is a nail, and not every case of wrongdoing requires a federal criminal solution. A well-functioning criminal justice system requires a renewed focus and emphasis on the sound exercise of prosecutorial discretion, along with a renewed appreciation for the proper role of the federal criminal penalties hammer.
And as for Captain Yates – federal prosecutors really should have had bigger fish to fry.
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