Overfishing: Yates v. United States, 574 U.S. ____ (2015)

Just a brief comment on the recent Supreme Court of the United States decision in Yates v. United States. While on a routine patrol, officials boarded a commercial fishing vessel captained by Yates to check that he and his crew were obeying federal fishing laws. Fully prepared for this important task, the officials took out their measuring tapes to verify the size of the fish caught.* Sadly for Yates, some of the fish were under the 20-inch limit:

Officer Jones ultimately determined that 72 fish fell short of the 20-inch mark. A fellow officer recorded the length of each of the undersized fish on a catch measurement verification form. With few exceptions, the measured fish were between 19 and 20 inches; three were less than 19 inches; none were less than 18.75 inches. After separating the fish measuring below 20 inches from the rest of the catch by placing them in wooden crates, Officer Jones directed Yates to leave the fish, thus segregated, in the crates until the Miss Katie returned to port. Before departing, Officer Jones issued Yates a citation for possession of undersized fish.

As soon as the officials had sailed/motored/floated/drifted off, Yates ordered a member of the crew to throw the fish back into the sea. For this he was charged with two offences, one of which arose under the Sarbanes Oxley Act, a piece of legislation designed to address financial fraud. The provision in question provides that the following is an offence: “Whoever 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 federal law] shall be fined under this title, imprisoned not more than 20 years, or both” (18 U. S. C. §1519).

For a plurality of four justices, Ginsburg J. concluded that a fish is not a “tangible object”, because the phrase “is better read to cover only objects one can use to record or preserve information, not all objects in the physical world” (slip opinion, at p. 7). Alito J. concurred. Kagan J. dissented, summarizing her analysis with admirable clarity: “A “tangible object” is an object that’s tangible” (slip opinion at p. 2).

My concern is not so much with the statutory interpretation question as it is with the decision to charge Yates in the first place. Even if the statute can be read to apply to throwing fish overboard, it seems astonishing to invoke a financial fraud statute to penalize a fisherman’s regulatory infraction.

But of course prosecutors have incentives to win cases. Here, charging the additional offence upped the pressure on Yates and increased the chances of him pleading guilty. The common law system has great reverence for prosecutors, whose discretion is essentially unreviewable. When it is exercised like this, however, the bars to reviewability seem far too high. And they create a troubling incentive for courts to adopt creative interpretations designed to avoid the ordinary language of a statute and ensure that there is some rough justice in the administration of the law. As Kagan J. put it in her dissent:

Still and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law—too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code. But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design (slip opinion, at p. 19).

* Fans of the cult Irish sitcom Father Ted will doubtless draw parallels to the ‘Lovely Girls’ competition, where Ted had to produce his vernier calipers to judge the quality of the sandwiches produced by the contestants (here, from about 14.10).

This content has been updated on February 26, 2015 at 11:36.