An Era of Overcriminalization

Originally published by Charles Koch Institute | January 1, 2015

Case: Yates v. US

In 2011, fisherman John Yates was convicted of a felony under the Sarbanes-Oxley Act’s “anti-document-shredding” provision, punishable by up to 20 years in prison. What did Yates do to earn a conviction under a law intended to prevent white-collar criminals from defrauding investors and the public? He allegedly threw 3 of 72 fish he had caught back into the Gulf of Mexico. The National Oceanographic and Atmospheric Administration (NOAA) had found the fish to be under the legal minimum size. Earlier this year, the Supreme Court threw out Yates’ conviction.

Non-profit government accountability watchdog Cause of Action (COA) filed an amicus brief in 2014 supporting Yates. COA’s Executive Director Dan Epstein noted that the Supreme Court’s ruling in favor of Mr. Yates “protected individual rights against arbitrary government prosecutions.”

Though she disagreed with the Court’s decision, Justice Kagan laid plain the state of overcriminalization in her dissent, admitting that this law is “unfortunately not an outlier, but an emblem of deeper pathology in the federal criminal code.”

As the Charles Koch Institute’s senior research fellow Vikrant Reddy describes it, “Overcriminalization refers to the frequent use of criminal law—rather than civil law or administrative sanctions—to punish behavior that historically would not have been viewed as criminal.” A number of scholars, prosecutors, and activists have charted the growth of the federal criminal code, as well as regulations carrying criminal penalties, and have begun shining a light on its dismal impact on individual lives. The United States Code contains nearly 4,500 criminal offenses.

Since 2000, Congress has created an average of 56 new crimes annually. Further, modest estimates count over 300,000 regulations that carry criminal penalties. According to University of Notre Dame Law School professor Stephen Smith, overcriminalization and cases of “abusive prosecution … take place from coast to coast and have ruined the lives and reputations of people who were like other law-abiding citizens except for their misfortune of having attracted the attention of an overzealous federal agent or prosecutor.”

How is it possible that an otherwise law-abiding citizen would find himself facing a federal conviction?

  1. The growing volume of laws and regulations carrying criminal penalties makes it nearly impossible to discern what is and is not a crime.
  2. A crime requires both an actus reus (“guilty act”) and a mens rea (“guilty mind”). But many laws and regulations containing criminal penalties do not include an intent requirement, meaning individuals can be prosecuted for unknowingly breaking the law.
  3. Many modern criminal laws are written in vague and ambiguous language. Combined with the absence in the criminal code of a clear definition of a crime, the criminal implications of an act are often left open to interpretation by prosecutors, defense attorneys, and citizens.

According to James Copland, director of the Manhattan Institute’s Center for Legal Policy, “The proliferation of criminal statutes undermines a key principle: that folks know in advance what conduct could land them in prison.” Overcriminalization, he says, “has moved us from the rule of law to the rule of prosecutors. And if our laws are too voluminous—if we can go to jail for a mistake—our liberty is seriously compromised.”

Experts studying this unsettling phenomenon have proposed a number of solutions for protecting innocent citizens from overcriminalization. Georgetown Law professor John Baker advocates an “interpretive rule” that “reads in a mens rea where one is not literally provided in the statutory language.” Further, he proposes adding a definition of a “crime” to the criminal code.

Sidney Powell, a former federal prosecutor who criticized the increasing “politicization of the Justice Department and the use of prosecutors,” has called on Congress to introduce open-file discovery legislation requiring prosecutors to share all evidence and information with criminal defendants and mandating harsh penalties for those who fail to comply. She concludes that prisons “should be reserved for people who are a danger to the community. Those who are not dangerous could be engaged in more productive activities (at no or little cost to the taxpayers) while they pay restitution or their debt to society.”

In his amicus brief filed in the Yates case, Smith remarked: “I am glad the court finally seems to understand that ‘prosecutorial discretion’ is no panacea. Federal prosecutors routinely engage in overcharging—seeking disproportionately severe punishments which no reasonable person could believe warranted.” He left readers with a stern warning that “if proportionality of punishment and the rule of law are to mean anything, federal courts must take seriously their obligation to ensure that federal prosecutors are not exceeding the proper scope of their authority under criminal statutes.”

Curbing overcriminalization is vital for restoring the rule of law, whereby laws are applied consistently and justly, as opposed to rule by the discretion of prosecutors. The scholars mentioned above will discuss these issues in a panel on “Protecting the Innocent in an Era of Overcriminalization” at the Charles Koch Institute’s Summit on Public Safety and Human Dignity in New Orleans this November.


Yates v. United States: Angling for A Narrower Statute

Originally published at National Review by Jonathan Keim | November 6, 2014

The justices made waves Wednesday during Supreme Court arguments (transcript here) in Yates v. United States, a case about a federal obstruction of justice statute, 18 U.S.C. § 1519, that was passed as part of the Sarbanes-Oxley legislation, which was originally intended to broaden federal white collar criminal laws after the Enron debacle. This particular provision of Sarbanes-Oxley makes it a crime when someone “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with intent to impede, obstruct, or influence an investigation, and gives the crime a maximum penalty of 20 years.  TOP ARTICLES3/5READ MOREBloomberg Claims Russia Is AidingSanders in Primary to Aid Trump in General Election

The defendant, a commercial fisherman, was convicted under the statute for tossing three undersized fish back into the ocean after a federal official instructed him to hold onto them so they could be seized, and was sentenced to 30 days in prison.

The parties’ arguments on appeal were even-keeled: the defendant argued that the statute, being focused on white-collar information storage, did not apply to red grouper. The government argued that the court should allow the statute to have its full linguistic scope. Both parties ably articulated and defended their positions. First-year law students still trying to figure out how legal reasoning works should note the Supreme Court justices testing the boundaries of the statutory phrase “tangible objects” by reference to Internet “cloud” storage, typewriters, iPads, laptop and desktop computers, iPhones, an empty filing cabinet, a knife with the defendant’s name written on it, an EPA questionnaire, and digital and analog photography (pp. 5-7, 12, 16, 20-22).

Under the surface, though, this case was about much more. As became clear at oral argument, the justices had deep concerns about the scope of federal criminal law and the government’s exercise of prosecutorial discretion.

The justices initially snagged their hooks on the overcriminalization problem in this case. As you can imagine, the specific purposes of Sarbanes-Oxley – stricter punishments for white collar crimes – have nothing to do with fish. Yet the words of the statute are almost impossibly broad. Justice Breyer’s skepticism was noteworthy (p. 16):

MR. BADALAMENTI: The narrowing is the document itself. This statute’s exceedingly broad. Our –

JUSTICE BREYER: But my problem, of course, is reading the statute and taking your argument in the context that you mean it, which is we must look for a way to narrow this statute, which at first blush seems far broader than any witness tampering statute, any obstruction of justice statute, any not lying to an FBI agent statute that I’ve ever seen, let alone those within Section 15 [sic].

Justice Scalia was particularly critical, describing the statute as “incredibly expansive.” (p. 17) Under questioning, the government lawyer admitted that the statute did not require the defendant to know that a particular matter was within federal jurisdiction (pp. 39-40) to be guilty of a crime, which seemed to surprise Justice Scalia. Justice Scalia also asked the government lawyer to help him find a limit to what might constitute a “tangible object”, triggering a flippant response that tacitly conceded the point (pp. 43-44):

MR. MARTINEZ: I think — I think it’s true that the term “tangible” is different. I think that the way to understand the term “tangible” is the way in which Congress and — and the rules always use the term “tangible” in connection with things or objects, which is as a way to refer to all types of — of objects, all types of evidence.

We’ve cited 35 different provisions of the U.S. Code and of the — the discovery rules in the criminal context and in the civil context. Those are at Footnote 3 of our brief. In all of those instances, they use the phrase “tangible things” or “tangible object” to refer to everything. And so there’s no reason to think that the addition of the word “tangible” somehow shrunk the scope of the statute. And even if it did shrink –

JUSTICE SCALIA: Is there such a thing as an intangible object? I’m trying to imagine one.

MR. MARTINEZ: I — I think the — you could say that the object of the game of Monopoly is to win all the money, but that’s not really what Congress was looking at here.


Laughter seemed to bubble to the surface in every swirling eddy of argument. Justice Kagan triggered an early moment of levity when she admitted to not being able to pronounce the name of the textual canon ejusdem generis (p. 8) and Justice Sotomayor provoked guffaws when the defense lawyer (wisely) declined her request to make the case for applying a different statutory provision to her client (pp. 13-14). Justice Breyer even intercepted a question addressed to the petitioner by Justice Scalia and answered it himself (pp. 17-18).

The Justices seemed especially eager to bait the audience to laughter with criticisms of the prosecution and Congress. The Chief Justice mocked the government lawyer’s over-the-top characterization of the defendant’s criminality (pp. 29-30):

MR. MARTINEZ: . . . And just to emphasize what happened here, Mr. Yates was given an explicit instruction by a law enforcement officer to preserve evidence of his violation of Federal law. He directly disobeyed that. He then launched a — a convoluted coverup scheme to — to cover up the fact that he had destroyed the evidence.  He enlisted other people, including his crew members, in  executing that scheme and in lying to the law  enforcement officers about it. And then –

CHIEF JUSTICE ROBERTS: You make him sound like a mob boss or something. I mean, he was caught —


CHIEF JUSTICE ROBERTS: The fish were — how many inches short of permitted were the fish?

MR. MARTINEZ: The fish were — it varied fish by fish, Your Honor.


Justice Scalia likewise criticized Congress’s passage of several adjacent and overlapping crimes that cover largely the same conduct. After the government lawyer explained that these were the result of several poorly-drafted bills (pp. 38-39), Justice Scalia commented that “that explains how it happens. It doesn’t explain how it makes any sense.”  (Scalia was too polite to use a Dickens character’s less delicate characterization.)

Even Justice Kennedy, who is not usually droll, commented (p. 54) that “Perhaps Congress should have called this the Sarbanes-Oxley Grouper Act.”

The arguments also revealed the justices’ serious concerns about the government’s failure to exercise prosecutorial discretion in this case. Justice Scalia was particularly piqued, making the first of several allusions to Bond v. United States (2014) by members of the Court (pp. 27-28):

JUSTICE SCALIA: Is there nothing else you who — who do you have out there that — that exercises prosecutorial discretion? Is this the same guy that that brought the prosecution in Bond last term?

* * *

JUSTICE SCALIA: No, I’m not talking about Congress. I’m talking about the prosecutor. What kind of a mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?

Justice Ginsburg inquired about the Department of Justice’s charging policy, and after the government attorney explained the policy laid out in the U.S. Attorney’s Manual, Justice Scalia again ripped into the government (p. 29):

JUSTICE SCALIA: Well, if that’s going to be the Justice Department’s position, then we’re going to have to be much more careful about how extensive statutes are. I mean, if you’re saying we’re always going to prosecute the most severe, I’m going to be very careful about how severe I make statutes.

It’s not clear whether Justice Scalia was speaking as a member of the Court or as a hypothetical legislator, but either way, these are strong words coming from a textualist.  Later, Justice Breyer piled on (pp. 35-36):

JUSTICE BREYER: I mean, somebody comes to the door and says — I’ve been through this. He passes a piece of paper through the door. It’s the postal — it’s a postman. He says, please send this back. It’s our proper duty to deliver the mail. I say, I hate postmen and I rip it up. 20 years.


MR. MARTINEZ:   Your Honor, that would not be covered.


JUSTICE BREYER: And why wouldn’t it happen? It wouldn’t happen because you’d never prosecute it, though I’ve had my doubts recently.


Even Justice Kennedy deep-sixed the government’s view of prosecutorial discretion, declaring (pp. 52-53) that “we should just not use the concept or refer to the concept at all anymore.”

The Court’s concerns about prosecutorial discretion raise another question: In general, promises to use prosecutorial discretion wisely are not an appropriate basis for interpreting a statute broadly. But would it ever be appropriate for the Court to narrow the statute because the government articulates an unwise prosecution policy?  If so, how far could it narrow the statute?  And on what basis?

Oliver Wendell Holmes once wrote that “hard cases make bad law,” and I think that’s true in this case. The Court’s moral objections to this case make what would otherwise be a fairly straightforward question of statutory interpretation into a much more difficult issue. The text is vastly broader than the Court seems to think is just or appropriate, particularly in light of the 20-year statutory maximum penalty. But as Justice Scalia observed, the terms of the statute are not vague, just broad. Thus, a dilemma: does the Court give a vastly overbroad statute its full linguistic sweep, or does it apply other principles in a way that would narrow it?

The options are unattractive.  On the one hand, the Court could simply apply the law as written and hope that Congress fixes it (which might make for some excellent bipartisan legislation in the next Congress). On the other, the Court could apply some broad principle that narrows the statute in spite of its text, just as it did in Bond (as the Chief Justice suggested on p. 46). But the difficulty with this sort of solution, as it was with Bond, is that the breadth of the principle also reduces certainty about what conduct is legal and illegal, especially for statutes that have not yet been narrowed. Or doing so could amount to judging, not based on existing rules of jurisprudence, but on purely result-oriented principles concocted only for the purposes of one case.

But although the rule of lenity and other canons of interpretation help a little bit, the statute has the textual breadth it does because Congress said so. Since the overbreadth problem was caused by Congress, the best way to deal with the overbroad statute is to amend it legislatively instead of applying fishy interpretive fixes. Otherwise the Court would be asserting a role for itself as statute-fixer-of-last-resort, an impossible position that elevates the Court’s role beyond that of deciding cases in accordance with law. In addition, narrowing the statute would effectively insulate Congress and the Executive from accountability for decisions about what conduct should be prosecuted. Consequently, the best way for the Court to decide this case is probably, as unattractive as it may be, to apply the law as written, affirm the conviction, and exhort Congress to fix the statute. 

JONATHAN KEIM — Jonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and … @jonathankeim


How Destroying Fish Is Not Destroying Financial Records

Originally published at Cato Institute by Trevor Burrus | July 10 2014

Case: Yates v. US

Overcriminalization is a significant problem in the United States, particularly federal overcriminalization. There are a variety of reasons for this, but one is that federal prosecutors consistently stretch laws to encompass conduct that the law was never meant to cover. Normal people who committed minor infractions will often find themselves facing long prison sentences that are entirely disproportionate to the wrongness of the act. Such is the case in an upcoming Supreme Court case, Yates v. United States

While commercial fishing in the Gulf of Mexico, John Yates had his catch inspected by the Florida Fish and Wildlife Commission for whether it complied with size restrictions. Finding some undersized fish, officials cited him for a civil violation and he was ordered to bring the undersized fish back to the docks. Instead, he threw them overboard. While he probably knew he would face a fine, what he could not have foreseen was his subsequent criminal prosecution under the Sarbanes‐​Oxley Act three‐​years later.

Sarbanes‐​Oxley was enacted in the wake of the Enron financial scandal and cover‐​up. It includes a document shredding provision, Section 1519, that punishes those who knowingly destroy or conceal “any record, document, or tangible object” in order to impede an investigation. To Mr. Yates’s surprise, he was convicted of violating Section 1519 and sentenced to 30 days in prison and three years of supervised release. On appeal, the Eleventh Circuit upheld his conviction by narrowly focusing on the dictionary definition of “tangible object.”

Now, on appeal to the Supreme Court, Mr. Yates asks the Court to overturn his conviction on the ground that he did not have fair notice that the destruction of fish would fall under Section 1519. We agree. In an amicus brief supporting Mr. Yates, Cato argues that well‐​established canons of statutory construction—that is, the rules that guide judges in interpreting statutes—do not allow Section 1519 to be reasonably interpreted to apply to fish. Those canons teach us that a word in a statute, such as “tangible,” should be given more precise content based on its surrounding words, and that it should only be applied objects similar to the precise words preceding it. In short, the other words in the statute, such as “record” and “document,” modify the term “tangible object” to include things like hard drives and diskettes, not fish.

Moreover, an all‐​encompassing reading of “tangible object” would render the words “record” and “document” unnecessary. Additionally, the broader context of the Sarbanes‐​Oxley Act illuminates the meaning of “tangible object.” The Act focuses on financial fraud in the context of companies, not destroying fish. Thus, the words “tangible object” should be read differently in Sarbanes‐​Oxley than they would be in, say, the Federal Rules of Criminal Procedure. If the term “tangible object” is read as broadly as the Eleventh Circuit’s interpretation, it could potentially criminalize an unfathomable range of activities. As such, it would not provide adequate notice to those who may violate the law. Individuals have a right to fair notice of what conduct is proscribed by the law so they may plan their actions accordingly. Legislatures, not courts, should define criminal activity.

Read Cato’s brief here