Miscounted, Mismeasured Fish? That’s a Federal Crime with Jail Time

Of the tens of thousands of regulations that restrict entrepreneurs trying to work each day or build new enterprises in farming, dairy, street-vending, home-baking, political groups most are local and state problems of local and state over-regulation and overcriminalization.

Advocates of Judicial Engagement argue that the federal court system should step in to protect economic liberty, if state legislatures and courts prove unresponsive. Public choice economics explain the problem. Established and concentrated interest groups, from teachers unions to restaurant owners, taxi owners, and professionals in hundreds of fields, lobby state legislatures to set legal barriers to competition.

New entrepreneurs eager to launch careers or enterprises are unorganized and usually unable to effectively lobby against established interest groups. (The case of Mississippi hair-braiders is a happy and unusual exception.)

Still, even though affirmative debaters can develop cases for federal courts to more actively and systematically protect economic freedom from state and local legislation and regulation, the negative can counter that these injustices best addressed by state legislatures and courts. The negative can claim such reforms are judicial activism, and who knows what imagined rights future federal courts may claim exist.

So affirmatives may want to choose a economic freedom cases that have fewer federalism problems. Overreaching federal regulatory agencies along with overzealous federal prosecutors are a good target for reform.

Below is a YouTube video on the story of EPA and vs. U.S.

Cause of Action, joined by Southeastern Legal Foundation and Texas Public Policy Foundation, has filed an amicus brief calling on the Supreme Court to overturn the conviction of a commercial fisherman who was prosecuted under Sarbanes-Oxley’s anti-shredding provision for throwing fish overboard.  

Caught with undersized fish, Yates may have had his crew throw some overboard instead of bringing them back to port to be remeasured. Usually catching undersized fish would be a civil issue and result in a fine (which this did). But eager federal prosecutors decided to try a Law and Order stretch of federal regulations and charge Yates with a Sarbanes-Oxley financial crime: “destroying a tangible object, now defined as a fish.” (quote from video)

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 in United 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.

The Supreme Court’s decision was split, but focus finally was on vague and overbroad regulations that prosecutors can stretch to charge everyday people with crimes that carry heavy financial penalties and prison sentences.

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.