A Fisherman, Some Undersized Grouper and the Problem of Regulatory Crime

Let me introduce you to the most dangerous document ever thrown off a boat. It is a red grouper, and it weighed a few pounds, and for a while the United States Department of Justice treated it like evidence of a conspiracy to destroy the financial system.

I am not exaggerating by much, folks, and I will prove it. In 2007 a commercial fisherman in the Gulf of Mexico was told by a state wildlife officer to hold some fish that were too small to keep. The fish went back into the sea. Years later, the case of what happened to those fish reached the Supreme Court, and the question before nine justices of the United States was whether a grouper is a "tangible object" within a statute written to punish the shredding of accounting records. If you want to understand how a free country ends up with more crimes than anyone can count, you could do worse than to start with that sentence.

The Fish

The case is Yates v. United States, decided in 2015. John Yates was the captain of a commercial fishing boat working the Gulf of Mexico off the Florida coast. In August 2007, an officer of the Florida Fish and Wildlife Conservation Commission, who had been deputized as a federal agent for fisheries enforcement, boarded the boat for an inspection. Federal rules set a minimum size for red grouper, twenty inches. The officer measured the catch, found dozens that fell below the limit, and issued a citation. He told Yates to keep the undersized fish in the ship's hold until the boat returned to port, where they would be seized.

Yates did not do that. He told a crew member to throw the undersized fish overboard. The crew member did. When the boat reached shore, the officer measured the fish in the hold again, found that they did not match his earlier measurements, and drew his own conclusions. The crew member later said what had happened.

Now, you might think the story ends with a fine. A man violated a fishing rule, and then a bad idea compounded it by dumping the evidence. A citation, a penalty, perhaps a suspended license. But that is not what Washington did. Prosecutors charged Yates with violating a federal law with a long title, the Sarbanes-Oxley Act of 2002, a statute passed in the wake of the Enron scandal to deal with corporate fraud and the destruction of financial records.

The Statute

The provision was Section 1519 of Title 18, added to the criminal code by that Act. It reads, in the part that matters, that 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 any matter within the jurisdiction of any department or agency of the United States" shall be fined or imprisoned not more than twenty years.

Twenty years. For a record, a document or a tangible object.

Congress passed this law in 2002 because the accounting firm Arthur Andersen had shredded documents as the Enron investigation closed in, and the existing obstruction statutes had gaps. It was a sensible reaction to a real problem. The section's own heading, in the statute, speaks of the "destruction, alteration, or falsification of records in Federal investigations and bankruptcy." Records. The prosecutor in Yates's case read the words "tangible object" and saw a fish.

A jury convicted Yates of destroying a tangible object. The trial judge sentenced him to thirty days in prison, with three years of supervised release. The Eleventh Circuit affirmed. The Supreme Court took the case.

What the Court Held

On February 25, 2015, the Court reversed, five to four. Justice Ginsburg wrote an opinion for four justices, the Chief Justice and Justices Breyer and Sotomayor joining her. Justice Alito concurred in the judgment on narrower grounds, supplying the fifth vote. The plurality held that the words "tangible object" in Section 1519 do not mean every physical thing in the world. They mean an object one can use to record or preserve information, the way a hard drive, a tape or a file does. The rest of the section, with its references to records and documents, its place in a statute about financial fraud and its title, all pointed to that reading. A fish is not a thing you use to keep a record.

The dissent came from Justice Kagan, joined by Justices Scalia, Kennedy and Thomas. She argued, as a matter of plain text, that a fish is a tangible object, and she thought the ordinary meaning of the words should control. But note what she also said. She agreed that Section 1519 was poorly calibrated, with a very high maximum penalty, and a heavy tool for a fisherman who threw fish overboard. Her view was that the remedy was for Congress to fix, not for a court to rewrite the words. Four justices who agreed on almost nothing else agreed that the prosecution was a misuse.

That is the moment worth savoring. In a case about the meaning of three words, the Court was divided on the grammar and united in its discomfort with the result. When a prosecution leaves nine justices embarrassed, you can bet the statute has a problem.

Why a Fish Became a Federal Crime

Here is the question that interests me. How did a grouper get into the criminal code?

The answer is that no one decided it. The federal criminal code, which once consisted of a short list of offenses that the Constitution plainly authorized, has grown for more than a century by accretion. The Constitution gives Congress power to punish only a few crimes directly: counterfeiting under Article I, Section 8, clause 6; piracies and felonies committed on the high seas and offenses against the law of nations under clause 10; and treason in Article III, Section 3. The rest of the federal criminal law rests on Congress's other powers, chiefly the power to regulate commerce, and on the principle that Congress may punish what is necessary to carry them out. As Congress added regulatory statutes, it attached criminal penalties to violations of those statutes, and then to violations of the rules that agencies wrote under them.

The result is a body of law that lives in three places: the criminal code proper, the thousands of other statutes scattered through the U.S. Code that carry criminal penalties, and the regulations issued under them, a violation of which can be a crime if the statute says so. A person who looks at the criminal code to learn what is forbidden will not find the whole picture, and a person who reads the whole of the U.S. Code will still miss the regulations.

Nobody Knows How Many

This is where the argument gets uncomfortable. There is no official count of federal crimes. I want to say that again, because it is startling: the government cannot tell you how many things it has made criminal.

The effort has been tried. In the early 1980s the Justice Department set out to count the criminal offenses in federal statutes and came up with an estimate of roughly three thousand. In 1998 a task force of the American Bar Association on the federalization of criminal law reported that the number of statutory crimes was larger than that and growing quickly, and that no one could say how many offenses were created by regulation. Congress's own research arm, the Congressional Research Service, has been unable to give an exact figure, and different counts depend heavily on how a "crime" is defined. If you want a current estimate, look up the most recent CRS report on the subject, and notice how much of it is an explanation of why the question is hard to answer.

Now put that beside the oldest principle of criminal justice, which is that a citizen is entitled to know what is forbidden before he is punished. The Sixth Amendment gives the accused the right "to be informed of the nature and cause of the accusation." That is a right to be told what he is charged with after the arrest. The principle underneath it, fair notice, belongs at the front of the process, not only at the end. A law that cannot be read, or counted, cannot give notice. Federalist 62 made that point about the laws generally, and I discuss it in Federalist 62 Warned That Mutable Laws Betray a Free People.

The Guilty Mind

The second principle at stake is older still. For centuries, the common law held that a crime has two parts: a guilty act and a guilty mind. The Latin tag, actus non facit reum nisi mens sit rea, an act does not make a person guilty unless the mind is also guilty, has been taught to first-year law students for as long as there have been law students. In Morissette v. United States (1952), Justice Robert Jackson wrote that the notion that an injury can amount to a crime only when inflicted by intention is "no provincial or transient notion." It is, he wrote, as universal and persistent in mature systems of law as belief in freedom of the human will.

The regulatory state has worn that principle thin. When a statute creates a crime without specifying a mental state, or specifies a thin one, the person charged may not have known that what he did was wrong, or even that it was forbidden. A farmer who fills a low-lying corner of his land, a businessman who ships a package the wrong way, a fisherman who throws a fish overboard: each can find himself on the wrong side of a law whose existence he never suspected. The courts have, in several cases, read a mental-state requirement into statutes that were silent, including Staples v. United States (1994), and the Court did so again in recent years in cases such as Rehaif v. United States (2019). But it does so statute by statute, case by case, and each time at the price of a prosecution.

A federal prosecutor can lean on something else, too: the maxim that ignorance of the law is no excuse. That maxim made sense when the law was a short list of things everyone knew were wrong, murder, theft, arson. It makes less sense when the law is a list nobody can finish reading.

The Best Case for the Other Side

I should state the opposing case fairly. It goes like this. Regulatory crimes exist for a reason. A factory that dumps poison in a river, a company that sells contaminated food, a trader that manipulates a market, can cause grave harm, and the harm may not be traceable to a single person with a clear evil intent. Public-welfare offenses, in which the government need not prove a guilty mind, have a long history, and they let the state protect the public without having to read minds. Section 1519 itself was written because the old law of obstruction was too narrow, and the result in Yates shows the system working, since the Court narrowed the statute.

There is real force in that. Here is my answer, in four numbered steps.

1. Protection of the public does not require prison for the innocent-minded. A civil penalty, a fine or a license suspension can protect the public from careless conduct. The criminal law, with its prison sentences and lifelong stigma, should be kept for those who knew what they were doing.
2. The system worked only because it was a fisherman. Yates had a lawyer, a persistent appeal and a case with a memorable fact. Most people who are prosecuted under vague statutes have none of those things, and many plead guilty because the penalties of trial are too steep.
3. Narrowing one statute does not narrow the code. The Court fixed Section 1519 for the next fisherman. It did nothing for the thousands of other provisions that a citizen could violate by accident. The remedy needs to be general.
4. Prosecutorial discretion is not a substitute for clear law. We are told to trust prosecutors to use the broad statutes wisely. But a law that is enforced only against those whom the government chooses is the opposite of equal treatment. I look at the limits of that discretion in Prosecutorial Discretion Has Limits, and Blanket Non-Prosecution Crosses Them.

Reforms That Would Work

The conservative response is not to abolish regulation. It is to restore the principles that make a criminal law legitimate, and the reforms are modest.

• A default mental-state rule. Congress could enact a statute saying that when a criminal law is silent about the mental state, courts must read in a requirement that the person acted knowingly, and, where a regulation is the basis for the offense, that he knew the conduct was unlawful or wrongful. Proposals of this kind have been introduced in Congress repeatedly. They would apply the guilty-mind principle to the whole code, not statute by statute.
• Clear definitions. Congress could require that a crime be defined in the statute itself, not left to agency rules, so that the public can find the whole of it in one place.
• A criminal-law census. Congress could direct the Justice Department and the Congressional Research Service to produce a published list of federal offenses, and require a report with every new statute on how many it adds. A government that is required to count its crimes will make fewer of them.
• Civil enforcement for civil wrongs. Where a wrong can be handled through a fine or an order, the law should say so, and reserve the criminal sanction for conduct that carries real moral blame.
• Strong lenity. Courts should apply the rule of lenity, which says that ambiguity in a criminal statute is resolved in favor of the defendant, with more consistency. The plurality in Yates leaned on it.

For the broader theme of what happens when the law is too long to read, see The Government Once Prosecuted Men Under a Rule That No Longer Existed, and for the structure of the rules beneath the statutes, Your Questions About the Code of Federal Regulations, Answered Plainly. The standard to which these reforms aspire is set out in The Rule of Law Has Eight Marks, and Lawmakers Can Fail at Every One.

Measuring It Against the Founding

The Declaration of Independence complains, among the injuries of the king, that "He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance." The "offices" and "officers" of that line were the Crown's customs and revenue officials, and the grievance was that rules written far away were enforced by strangers against the colonists' property. The grievance has a modern counterpart. When an officer can board a boat, measure a fish, and bring the might of a twenty-year statute to bear on the answer, the colonists' complaint is not merely historical.

I do not say this to inflame anyone. The officer in this case was doing his job, and he had every right to enforce the size limit. The question is the one the prosecutors in Washington decided to answer, which was how severely the law should treat a man who threw away evidence of a fishing violation. The answer the legal system gave was a statute designed for the Enron scandal, with a maximum of twenty years. A sense of proportion is part of the rule of law, and the Founders understood that.

The Case in Brief

1. Yates v. United States (2015) arose when a fisherman, after being told to hold undersized red grouper for inspection, had them thrown overboard and was charged under a document-destruction law written after the Enron scandal.
2. The Court held, five to four, that "tangible object" in Section 1519 means an object used to record or preserve information, and Justice Kagan's dissent agreed the law was overbroad while insisting that Congress, not the Court, should fix it.
3. No official count of federal crimes exists. An early-1980s Justice Department estimate was roughly three thousand statutory crimes, and the regulatory crimes beneath them have never been counted.
4. The guilty-mind requirement, defended in Morissette v. United States (1952), has been worn thin by statutes that omit it, and a citizen cannot have fair notice of a law no one can count.
5. The remedy is general: a default intent standard, crimes defined in statutes, a published census and civil enforcement for civil wrongs.

What you can do: ask your representative, through the House and Senate directory, to cosponsor a default mental-state bill for federal crimes, and read Section 1519 of Title 18 for yourself.