ND Authorities: Courts need to resist ‘overcriminalization’

Richard Garnett, left, and Stephen Smith Richard Garnett, left, and Stephen Smith

University of Notre Dame law professors Stephen Smith and Richard Garnett are encouraged that Supreme Court justices seem to be to endorse arguments they have produced in a good friend-of-the-court short in the Yates v. United States situation now becoming heard by the court.

On Wednesday (Nov. 5), the court heard arguments on the 2011 felony conviction of John Yates, a fisherman who had thrown back into the Gulf of Mexico 72 red grouper fish that a federal official discovered under the twenty-inch legal minimum dimension. Utilizing a provision of the 2002 Sarbanes-Oxley Act that tends to make it a crime to tamper with or destroy “any record, document or tangible object” with intent to obstruct a federal investigation, the government convicted Yates of a crime punishable by a prison phrase of to twenty many years.

Throughout the oral argument, Chief Justice John Roberts drew an eruption of laughter from the courtroom by commenting to the government’s lawyer, “You make him (Yates) sound like a mob boss or anything,” and Justice Antonin Scalia wondered aloud “what variety of mad prosecutor would try out to send this guy up for 20 years or risk sending him up for 20 years?” Justice Anthony Kennedy advised that the situation called into query regardless of whether judges must “use the idea or refer to the notion (of prosecutorial discretion) at all anymore.”

In their short, professors Garnett and Smith joined other criminal law scholars in urging the Court not to treat the Yates prosecution as an isolated situation, arguing that it illustrated the issues produced by “overcriminalization.”

“I am glad the Court ultimately appears to recognize that ‘prosecutorial discretion’ is no panacea,” Smith stated. “Federal prosecutors routinely engage in overcharging — seeking disproportionately extreme punishments which no realistic individual could think warranted.

“If proportionality of punishment and the rule of law are to indicate anything at all, federal courts should take seriously their obligation to guarantee that federal prosecutors are not exceeding the correct scope of their authority underneath criminal statutes.”

The buddy-of-the-court short short is offered right here.

Contact: Stephen Smith, 574-631-3097, ssmith31@nd.edu Richard Garnett, 574-631-6981, rgarnett@nd.edu

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