This commentary originally appeared in USA Today on March 3, 2015.
On Thursday, for the first time, the word "overcriminalization" appeared in the body of a U.S. Supreme Court opinion.
The word — which refers to the tendency to treat ordinary behaviors that traditionally would never have been considered criminal as crimes — is common among lawyers and legal scholars. In the past year alone, the term appeared over 100 times in law review articles.
The Supreme Court, however, had not used the word until last Thursday's decision inUnited States v. Yates— colloquially called "the fish case."
The case concerned John Yates, a Florida fisherman who may have possessed undersized groupers aboard his boat. An inspector said 72 groupers in Yates's catch of about 3,000 appeared illegally under-sized. When Yates brought the groupers ashore for measurement, the inspector claimed to have counted only 69.
What happened nearly three years later was remarkable. A U.S. attorney charged Yates's alleged loss of the three fish as a violation of the Sarbanes-Oxley Act, the accounting fraud law.
During the Enron investigation in 2002, business records were shredded by defendants. In response, Congress placed a provision in Sarbanes-Oxley providing that "destroy[ing]…or mak[ing] a false entry in any record, document, or tangible object" could be prosecuted and punished with up to 20 years in prison.
Yates was charged under this provision, and the Supreme Court was asked to determine whether groupers are "tangible objects" for the purposes of a Sarbanes-Oxley prosecution. Could any reasonable person have known tossing a few groupers over the side of a boat might result in a criminal charge for shredding corporate accounting records?
On Thursday, four justices said "No" because, when considered in context, a fish is not the sort of financial document that Sarbanes-Oxley is intended to cover. A fifth justice, Samuel Alito, concurred on slightly different grounds.
Four dissenters argued that the words should be read as literally as possible, and a fish is obviously a tangible object.
The court, therefore, was split 4-1-4 on the outcome. For those concerned about overcriminalization, however, the split is a red herring. (All commentators on Yates are allowed at least one terrible fish pun.)
The split among the justices concerned a technical question about which part of government — the Supreme Court or Congress — is best-positioned to address the overcriminalization problem presented here. All nine justices, however, agreed that the case presented numerous overcriminalization problems.
To begin, the statute in question may have simply been redundant and unnecessary. Federal obstruction of justice statutes existed in 2002 when Enron collapsed, and legal observers at the time questioned the necessity and constitutionality of the anti-document shredding provision in Sarbanes-Oxley.
Secondly, even if the law was necessary (some advocates say it closed "loopholes"), applying the statute to Yates's circumstances was a novel and aggressive application.
Finally, the punitive nature of the sentence — Yates risked a 20-year prison term — was striking. While Yates likely would never have served a 20-year sentence, the theoretical prospect of such a harsh sentence likely influenced his plea negotiations.
Writing for the dissent, Justice Elena Kagan acknowledged these concerns when shenoted that the plurality's real issue with the case seemed to be the "overcriminalization and excessive punishment in the U. S. Code."
She even went on to say "Section 1519 [the anti-document-shredding provision] 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."
Justice Kagan could have taken the point even further. The law is an emblem of a deeper pathology in state criminal codes too.
Anthony Brasfield violated Florida state law when he released twelve helium-filled, heart-shaped balloons for his girlfriend. He was charged with a third-degree felony.
In Utah, Jestina Clayton was charged with a Class A misdemeanor for braiding hair without a cosmetology license — even though the 2,000 hours of cosmetology training does not teach hair braiding.
In these cases — and many more — states passed silly or redundant laws, attached extraordinary criminal penalties to them and then pursued unusually aggressive prosecutions.
Such stories are common "News of the Weird" fodder, but for the individuals caught up in these overzealous prosecutions, the situations are not just weird, they are disruptive and frightening.
In Yates, advocates who have been trying to bring attention to this problem for 20 years earned a significant victory.
Increasingly, Americans seem concerned with restoring the checks on government power that have eroded in the criminal justice system over the last several decades. The justices on the Supreme Court — all nine of them — appear to agree.
Vikrant P. Reddy is a senior policy analyst at the Texas Public Policy Foundation with the foundation's national Right On Crime initiative..