Overcriminalization: Fish Shredding and “Governing Through Crime”

At the Advancing Justice Summit in New Orleans, the morning session began with a video on Yates v. United States,  highlighting overcriminalization in the case of a fisherman convicted of criminal “fish-shredding” and thrown in jail.

The link above is to Cause of Action, highlighted in the video, who with the Southeastern Legal Foundation and Texas Public Policy Foundation, filed an amicus brief to the Supreme Court in the case.

The federal agency involved in the Yates incident was NOAA. In Politico (April 24, 2014), John Yates tells his story, “A Fish Story,” subtitled “I got busted for catching a few undersized grouper. You won’t believe what happened next.” After being charged and convicted of violating Sarbanes-Oxley for “shredding fish,” Yates writes:

I have since asked the U.S. Supreme Court to hear my case and limit the reach of this criminal statute to the white-collar crimes it was intended to punish.  …

What’s more, following my federal criminal conviction for destroying “tangible objects”—again, fish—I learned that a 2010 congressional investigation had discovered that a NOAA official had allegedly “shred[ded] documents during a federal investigation” concerning “heavy-handed fisheries enforcement.” The irony could not be greater. NOAA is the same federal agency that urged a federal prosecutor to charge me with “shredding” dead fish. Now one of NOAA’s employees stood accused of the same crime.

Fishermen should follow the rules and when the are caught catching undersized fish they should pay the penalty. Why should catching undersized fish be a criminal offense rather than a civil one?

Environmental laws and regulations have criminalized more than just catching undersized fish. Alleged violations of the Clean Water Act brought SWAT teams from the EPA and other state and federal agencies to a small town in Alaska:

The incident that sparked the renewed interest and concern occurred in late August when a team of armed federal and state officials descended on the tiny Alaska gold mining town of Chicken, Alaska.

The Environmental Protection Agency, whose armed agents in full body armor participated, acknowledged taking part in the Alaska Environmental Crimes Task Force investigation, which it said was conducted to look for possible violations of the Clean Water Act. 

Not just the EPA was involved in this raid, and the story expands to other militarized federal agencies, including NOAA:

The other federal agencies participating in the operation were the U.S. Fish and Wildlife Service, the Bureau of Land Management, the Coast Guard, the National Oceanic and the Atmospheric Administration and the U.S. Park Service.The other federal agencies participating in the operation were the U.S. Fish and Wildlife Service, the Bureau of Land Management, the Coast Guard, the National Oceanic and the Atmospheric Administration and the U.S. Park Service. 

The Fish and Wildlife Service, Bureau of Land Management and Park Service are among 24 federal agencies employing more than 250 full-time armed officers with arrest authority, according the federal report, which is based on the 2008 Census of Federal Law Enforcement Officers. 

The other 16 agencies have less than 250 officers and include NOAA as well as the Library of Congress, the Federal Reserve Board and the National Institutes of Health.

Tim Lynch (Cato Institute), Peter Kraska, and William Ruger

Peter Kraska, Professor and Chair of Graduate Studies and Research, School of Justice Studies, argues that the United States has shifted to “governing through
crime.” With so many thousands of new state and federal criminal laws and regulations, state and federal police forces and prosecutors have far more crimes to pursue. “Cops or soldiers?” in The Economist (March 22, 2014), draws from Peter Kraska’s research:

FROM the way police entered the house—helmeted and masked, guns drawn and shields in front, knocking down the door with a battering ram and rushing inside—you might think they were raiding a den of armed criminals. In fact they were looking for $1,000-worth of clothes and electronics allegedly bought with a stolen credit card. They found none of these things, but arrested two people in the house on unrelated charges.  …

Peter Kraska, a professor at Eastern Kentucky University’s School of Justice Studies, estimates that SWAT teams were deployed about 3,000 times in 1980 but are now used around 50,000 times a year. Some cities use them for routine patrols in high-crime areas. Baltimore and Dallas have used them to break up poker games. In 2010 New Haven, Connecticut sent a SWAT team to a bar suspected of serving under-age drinkers. That same year heavily-armed police raided barber shops around Orlando, Florida; they said they were hunting for guns and drugs but ended up arresting 34 people for “barbering without a licence”. 

How to reform the federal system to reduce overcriminalization?  This August 21, 2014 Heritage Foundation report, “A Judicial Cure for the Disease of Overcriminalization,” argues for the “important role of the federal judiciary in defining criminal liability. …”

At this point, traditional critiques of overcriminalization hit a brick wall because overcriminalization is understood primarily in quantitative terms: the notion that there are too many criminal laws regulating too many activities. From this view, reform efforts depend entirely on Congress, which needs to narrow and repeal scores of federal criminal laws. Absent such legislative action, federal prosecutors will continue to have free rein to exploit the vagaries of federal law to charge and convict whomever they wish, regardless of how innocuous the accused’s behavior is. 

Fortunately, there is another path to reform in this area, one that does not depend on congressional action (or heroic self-restraint by federal prosecutors). This path to reform is informed statutory interpretation in federal criminal cases. Legislative overuse and prosecutorial misuse of the criminal sanction need not go unchecked, as many judges seem to think. The courts themselves have an important role in defining crimes, a role that takes on even greater importance as Congress continues to default on its obligation to restrict criminal liability and penalties to sensible bounds.  

Courts flesh out—and, more often than not, prescribe in the first instance—the state of mind required for conviction. The state-of-mind, or mens rea, requirements are of vital importance in preventing morally undeserved punishment and guaranteeing the fair warning necessary to enable law-abiding citizens to avoid committing crimes. As important as the role of defining the mental element of criminal liability is, however, it is not the judiciary’s only role in this area. The courts also help to define criminal liability by interpreting ambiguous statutes, determining the meaning of laws in which Congress failed to make its intention entirely clear.

Once the important role of the federal judiciary in defining criminal liability is understood, there is greater cause for optimism about the prospect of finally reining in overcriminalization.