The plural of fish is not "tangible objects"

March 1, 2015 11:22 AM

Last week the Supreme Court of the United States ruled (PDF) on the case of Yates v. United States, whether the captain of a fishing boat violated the Sarbanes-Oxley Act by throwing undersized red grouper overboard to avoid prosecution.

'Twas a 5-4 ruling, but not along the usual lines. Ginsburg, Roberts, Breyer, and Sotomayor ruled that fish are not "tangible objects" under Sarbanes-Oxley. Alito concurred on more narrow grounds. Kagan, Scalia, Kennedy, and Thomas dissented. Though the case evoked its share of fishy humor, the ruling has broader implications, most immediately regarding prosecutorial overreach. Sarbanes-Oxley was passed to prosecute white-collar paper shredders, not captains of fishing boats or friends of one of the Boston Marathon bombers. The ruling may or may not also signal how the justices will decide in the lawsuit aimed at ending ACA subsidies for citizens of states that use healthcare.gov instead of a separate state-level exchange. That lawsuit hinges on whether tax breaks on insurance bought via marketplaces "established by the state" also apply to insurance bought through the federal exchange in states that did not set up their own exchanges.

posted by dirigibleman (25 comments total)

Ginsburg asks what the Justice Department does when it has two “overlapping” statutes, one that carries a five-year sentence and another with a 20-year sentence. Martinez replies that in general the protocol is to “charge the offense that’s the most severe under the law.”

That protocol is wrong and its proponents deserve the most severe reprimand possible.
posted by pulposus at 11:32 AM on March 1, 2015 [18 favorites]

That protocol is wrong and its proponents deserve the most severe reprimand possible.

It has long been Justice Department policy. It's utterly and completely wrong.

The real bozos in this case are the prosecutors who decided to use SOX to charge a man who threw fish overboard. Just charge him for the undersized fish, Obstruction of Justice or similar for trying to destroy the evidence, take his guilty plea, and come up with a sentence that doesn't involve jail. While illegal fishing is unacceptable, this crime is the fisherman's equivalent of trying to ditch your dope out the car window when you get pulled over, not the next Enron.
posted by zachlipton at 11:41 AM on March 1, 2015 [8 favorites]

I liked Kevin Underhill's Seussian summary.
posted by teraflop at 11:47 AM on March 1, 2015 [11 favorites]

First assume a perfectly spherical grouper of uniform density...
posted by JohnFromGR at 11:52 AM on March 1, 2015 [8 favorites]

If you want to know how crappily the prosecutors treated him:

For reasons not disclosed in the record before us, more than 32 months passed before criminal charges were lodged against Yates. On May 5, 2010, he was indicted for destroying property to prevent a federal seizure, in violation of §2232(a), and for destroying, concealing, and covering up undersized fish to impede a federal investigation, in violation of §1519.1. By the time of the indictment, the minimum legal length for Gulf red grouper had been lowered from 20 inches to 18 inches. See 50 CFR §622.37(d)(2)(iv) (effective May 18, 2009). No measured fish in Yates’s catch fell below that limit.

If conduct is so egregious that it requires the full power of a federal felony prosecution to deter it, surely waiting two and a half years to file charges makes sense, right?

This guy wasn't some kind of horrible poacher of the seas. He had a bunch of fish that were around 1" under the limit (and we all know how fishermen are about measurements) and the limit was lowered to make his fish legal long before anybody got around to charging him. Unless he has some undisclosed lengthy history of past violations, he should have gotten a civil fine for the undersized fish. Because he tried to cover it up, double or triple the fine and take away his fishing license. Problem solved, at a fraction of the cost and trouble for everybody involved.
posted by zachlipton at 11:54 AM on March 1, 2015 [7 favorites]

There's a thing about that in January's 'Harper's.'

Justice Kennedy: 'Perhaps Congress should have called this the Sarbanes-Oxley-Grouper Act.'
posted by box at 11:56 AM on March 1, 2015

Yeah, this all reminds me of a lot of conversations I've had regarding getting prosecutions going against the banks. I'm told that they were investigated and they didn't find anything to charge and it's all very complex.

Yeah, okay, meanwhile when it comes to any other sort of crime if they want to charge you for something they will take the time, even if it takes years, to find something to fucking charge you with.

The banks aren't prosecuted because the people in charge don't want to prosecute them.
posted by Drinky Die at 12:09 PM on March 1, 2015 [40 favorites]

"The banks aren't prosecuted because the people in charge don't want to prosecute them."

Almost right, the people in charge also own the banks. Why should they prosecute themselves, in a few short years they'll move from regulator to partner or back anyway.
posted by Blackanvil at 12:23 PM on March 1, 2015

Charging the fisherman under Sarbanes-Oxley seems like the prosecutorial equivalent to "hold my beer". Done more to see if they could, rather than because it was a good idea.
posted by ryanrs at 1:09 PM on March 1, 2015

When you're writing a dissenting opinion that says that a man should be sent to prison for 20 years, Dr. Seuss doesn't really strike the correct tone (I'm looking at you Justice Kagan). Yuck. No wonder Scalia signed onto that opinion - anything that ignores or makes light of the the human toll of SCOTUS decisions is the side he's on.
posted by 1adam12 at 1:14 PM on March 1, 2015

In Kagan's defense, nobody involved seems to be saying that he should go to prison for 20 years. That's the maximum penalty allowed under the act, but the prosecutor was asking for 21 to 27 months, and the judge had in fact sentenced him to 30 days. And it does feel pretty awkward to read the phrase "tangible object" in a way that doesn't include fish. (I've come around to thinking it's the right reading, but it still feels awkward.)

The same dissent has this to say about the law in question: "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. "
posted by moss at 1:46 PM on March 1, 2015 [7 favorites]

(OTOH, I'm 100% on board with your assessment of Scalia.)
posted by moss at 1:48 PM on March 1, 2015 [1 favorite]

Why re-litigate row vs. wade?
posted by spitbull at 2:27 PM on March 1, 2015 [2 favorites]

What's really sad about the above is that the minimum legal length for the fish was lowered from 20 to 18.

The fish stocks are depleted from overfishing, which is why you have a minimum length at all. But the minimum length was lowered, probably because, given the existing overfishing, that was the only way to catch a marketable amount of fish. But this means younger fish are being pulled from the waters, accelerating the problem of overfishing.

That's like trying to solve an oil shortage by burning all the gasoline as quickly as possible.
posted by Cool Papa Bell at 2:44 PM on March 1, 2015 [12 favorites]

I don't know, they could have charged him under the CFAA too, if you assume a fish is a kind of computer, and catching undersized fish is a sort of unauthorized access.
posted by RobotVoodooPower at 3:01 PM on March 1, 2015 [3 favorites]

I would have DMCAed him myself on the grounds that someone somewhere has presumably copyrighted something involving a fish and this man's unauthorized performance art piece involving the disposal of copyrighted fish materials constitutes a violation.
posted by Copronymus at 3:55 PM on March 1, 2015 [4 favorites]

Why re-litigate row vs. wade?

I believe you're confusing this with wet-foot, dry-foot policy.
posted by dhartung at 4:48 PM on March 1, 2015 [3 favorites]

Dhartung, that was actually too clever. Damn.
posted by etc. at 5:20 PM on March 1, 2015

While illegal fishing is unacceptable, this crime is the fisherman's equivalent of trying to ditch your dope out the car window when you get pulled over, not the next Enron.

But that's the thing, isn't it? Throwing out your dope isn't that big a deal because the public generally accepts that smoking pot is a small-time, personal kind of problem, if it's a problem at all. This isn't a guy just catching a few fish to make into dinner at home. Industrial fishing has to be regulated or else we get another cod collapse. Groupers are slow to mature and taking the immature ones before they've had a chance to reproduce can have a huge impact on the fish stock if enough people do it. And things like that can have huge ecological and economic impacts. In other words, a few guys can make a lot more money in the short term by taking undersized fish--and then later on people who didn't do anything wrong lose their jobs.

Which does that sound more like, the person who's getting pulled over and disposes of their personal stash, or the person who destroys the evidence that they were trying to wreck an industry?
posted by Sequence at 5:23 PM on March 1, 2015 [1 favorite]

Which does that sound more like, the person who's getting pulled over and disposes of their personal stash, or the person who destroys the evidence that they were trying to wreck an industry?

More like the personal stash. Drug trafficking has some really awful things that occur when it goes on, but no individual user is expected to be aware or responsible for, say, what Colombian cartels do.
posted by corb at 7:23 PM on March 1, 2015

This actually has interesting implications in my field (information sciences), as we've long been debating what constitutes "evidence" or a "document." Suzanne Briet famously used the example of an antelope (scroll down a bit on the page), which she argues is a document when placed in a zoo but not a document when living in the wild. In fact, Justice Alito mentioned antelopes in his statement, saying that when someone says "tangible object," "a fish does not spring to mind — nor does an antelope, a colonial farmhouse, a hydrofoil or an oil derrick." I think he may have come across some Briet in his research.
posted by rabbitbookworm at 8:00 PM on March 1, 2015 [1 favorite]

More like the personal stash. Drug trafficking has some really awful things that occur when it goes on, but no individual user is expected to be aware or responsible for, say, what Colombian cartels do.

Just how naive do you think that modern commercial fishermen are about one of the major threats to their livelihood? Tens of thousands of people lost their jobs when they declared the cod moratorium in Canada. It was supposed to last a couple years. That was twenty years ago and they're nowhere close to enough recovery to start allowing it again. For the sake of comparison, we're talking about more people than Enron employed. Individuals just engaged in fishing for personal benefit can't be expected to know about the impact of regulations like this; people engaged in industrial-scale fishing operations know damned well how this works and why it's important. They might not have in the 1970s, but they do now.
posted by Sequence at 6:33 AM on March 2, 2015 [1 favorite]

zachlipton: That protocol is wrong and its proponents deserve the most severe reprimand possible.

It has long been Justice Department policy. It's utterly and completely wrong.

That seems utterly and completely right to me. If someone is charged with vandalism AND a hate crime (painting a swastika on someone's house), I'd rather they get the severe charge, not the $50-and-pick-up-the-garbage one.

zachlipton: The real bozos in this case are the prosecutors who decided to use SOX to charge a man who threw fish overboard.

That I agree with.
posted by IAmBroom at 2:46 PM on March 3, 2015

That seems utterly and completely right to me. If someone is charged with vandalism AND a hate crime (painting a swastika on someone's house), I'd rather they get the severe charge, not the $50-and-pick-up-the-garbage one.

Sure. The issue is one of prosecutorial discretion. Actual human beings in the Justice Department should look at a case and make charging decisions based on some sense of, well, justice, rather than treating people's lives like a game where you dangle 20 year maximum sentences in front of people to force them to plead guilty.

I'm not saying that always charging the most severe charge is wrong. To pull out an utterly ridiculous example, someone who, heaven forbid, assassinates the President and leaves shell casings behind on the sidewalk shouldn't be charged only with littering. But what's happening here is that our Federal Government has a policy that it will, as a rule, charge you with the most severe crime it possibly can regardless of the circumstances. That policy, in my opinion, is wrong.
posted by zachlipton at 12:17 AM on March 4, 2015 [1 favorite]

Court Pesters: Why Elena Kagan May Have Saved Health Care
posted by homunculus at 10:29 PM on March 4, 2015