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One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors. -- Plato (429-347 BC)

Wednesday, November 05, 2014

Fisherman Charged With Violating a Law Intended to Apply to Businesses Shredding Documents

by Paul J. Larkin Jr, Heritage Foundation: John Yates may have dreamed that one day he would wind up on the cover of Florida Sport Fishing magazine.

Instead, he wound up in Florida Federal District Court and now in the Supreme Court of the United States, where he is the latest poster child for overcriminalization. His story would make for a good episode of “South Park” or “The Simpsons” but for one fact: It’s true.

In 2007, Yates captained a commercial fishing boat in the Gulf of Mexico. A Florida Fish and Game Wildlife Commission officer deputized to assist the federal government spotted Yates’ boat and went aboard to conduct a safety inspection. The officer saw red grouper that appeared undersized under federal regulations, measured them and found six dozen to be too small.

Possession of undersized fish is not a crime; it is only a civil violation punishable by a fine or fishing license suspension. So the officer told Yates to put the undersized fish aside so they could be re-examined on shore.

Yates, according to the jury, dumped the undersized fish into the sea and substituted others in their place—although 69 out of the 72 replacements were still undersized, according to the government.

Unfortunately for Yates, the government didn’t see his conduct as a laughing matter and charged him with destruction of “tangible objects” in violation of the Sarbanes-Oxley Act.

Yes, that Sarbanes-Oxley Act—the one designed to prevent accountants and senior corporate officers from fleecing Fortune 500 companies and deep-sixing the evidence. The government also charged Yates with violating a statute that actually does apply to his conduct. Yates was convicted of that crime, and he does not challenge that conviction.

If you’re scratching your head as to how the Sarbanes-Oxley Act applies to Yates’ conduct, you are not alone. The Supreme Court probably had the same reaction because it decided to hear Yates’ case, which will be argued on Wednesday.

Cases like this one exemplify the problems caused by overcriminalization—that is, the overuse, misuse or abuse of the criminal law. No one who reads the text of the Sarbanes-Oxley Act—or who paid attention to the problems it was intended to fix—would have thought the statute has anything to do with fish.

Yates therefore typifies one of the problems of overcriminalization. Criminal statutes must give the average person—that is, the average fisherman, not the average lawyer, judge or law professor—the ability to know precisely what the law defines as a crime.

Stretching the Sarbanes-Oxley Act to include Yates’ novel catch-and-release program may sound morally justified because Yates did something “bad,” but that’s not how criminal law works. If the law is not clear, the defendant should receive the benefit of the doubt.

The Constitution also does not permit the courts to make up for shortcomings in a statute. That is Congress’ job alone to fulfill. The result is that people should not wind up in prison for conduct that a statute does not precisely outlaw, however too-cute-by-half their conduct may seem.

It would be a mistake to disregard the Yates case as an odd duck case that has little importance for the criminal law. Over the past few decades, the Justice Department and the lower federal courts have combined to produce a goodly number of cases like Yates.

It’s time for the Supreme Court to act like Popeye, put its foot down, and tell the lower federal courts, “That’s all I can stands. I can’t stands no more.” If the Court does that, then there will be justice for Yates and for all the other people who should not be charged with a crime. Will the Court do that? Hope springs eternal.
Paul J. Larkin Jr is a senior legal research fellow in the Center for Legal and Judicial Studies and directs The Heritage Foundation’s project to counter abuse of the criminal law, particularly at the federal level.

Tags: Supreme Court, John Yates, commercial fishing boat, Gulf of Mexico, fish, fishing, Sarbanes-Oxley Act, abuse by government, Paul J. Larkin, analysis To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. and "Like" Facebook Page - Thanks!
Posted by Bill Smith at 1:01 PM - Post Link


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