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Monday, March 02, 2015

Stuntz’s Presence In Yates

Last week, the Court decided Yates v. United States, the red grouper case, by a 5-4 vote in favor of the defendant. I’ve blogged about Yates and its oddities before (here and here). In this post I’d like to focus on a connection between Yates and the scholarly work of the late Professor William Stuntz, particularly his work on checking the "pathological" politics of criminal justice. Though he is nowhere cited, the opinions in Yates call to mind Stuntz’s critique of overcriminalization and prosecutorial discretion as well as his suggested solutions, including expanded due process protections.

Back in June 2014, the majority opinion in Bond v. United States leaned heavily on the constitutional avoidance canon to construe a criminal statute against the government. At the time, I suggested that “Bond is likely a harbinger for the recently granted case Yates v. United States,” since both involved potentially ambiguous criminal statutes and prosecutorial overreach. The Court confirmed this connection during oral argument in Yates by referencing the prosecutorial overreach in Bond.

The Court likewise confirms the connection in the published opinions. Writing for a plurality of four, Justice Ginsburg asserts that “Yates would have had scant reason to anticipate a felony prosecution, and certainly not one instituted at a time when even the smallest of the fish he caught came within the legal limit.”  The plurality then “Cf” cites Bond while parenthetically characterizing it as “rejecting ‘boundless reading’ of a statutory term given ‘deeply serious consequences’ that reading would entail.”

That citation is significant because there is a rather fundamental difference between Bond and Yates: in Bond,the Court found that the “boundless reading” at issue implicated constitutional concerns and so triggered the avoidance canon. Only the invocation of strong constitutional doubts seemed to justify the otherwise untenable statutory reading that Bond adopted (with Justices Ginsburg and Kagan alike joining in full). In Yates, by contrast, there is no constitutional claim on the table—or is there?

The suppressed but discernible constitutional problem in Yates concerns due process. First, the Yates plurality invokes notice values by denying that Congress would “bury” a broad law that people have “scant reason to anticipate” and that denies the public “fair warning.” Second, the plurality links notice to the gravity of the potential punishment by saying that the government’s reading would create “serious consequences” and by emphasizing over and over that the statute defines “a felony punishable by up to 20 years.” These remarks span the Court’s discussions of legislative intent and the rule of lenity.

Viewing Yates as having constitutional undertones puts it in the same broad category as Bond while also calling to mind Skilling v. United States, where vagueness concerns rooted in due process led the Court (per Justice Ginsburg) to narrow the honest services fraud statute under the banner of constitutional avoidance. Confirming that the Court has due process on the mind, unconstitutional vagueness will come up again this term when the Court hears reargument in Johnson v. United States.

But if due process underlies the plurality’s treatment of the case, why was that value suppressed to the point that it is nowhere mentioned by name? One straightforward possibility is that the case was argued as a matter of statutory interpretation, so it was treated entirely within that silo.

There is another, potentially deeper answer: Current law doesn’t typically rely on due process to narrow broad statutes. Unlike in Skilling and Johnson, the government’s reading in Yates wasn't criticized for being so vague as to be void. Rather, the government's view was criticized simply for being too broad.

Expressly using due process to trim broad statutes might therefore seem a big change, in that it would make due process a more potent weapon against prosecutorial discretion. Indeed, even without explicitly making that shift, the plurality couldn’t get Justice Alito to join and thereby form a majority. Alito’s arguably controlling concurrence in the judgment instead opens by declaring that the case “can and should be resolved on narrow grounds.” Hardly the makings of a landmark ruling.

That leads to Justice Kagan’s dissenting opinion for four Justices. In the dissent’s view, “the real issue” in Yates is “overcriminalization and excessive punishment in the U. S. Code.” The dissent then goes on to conclude as follows:

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.

But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.

In the first paragraph above, Justice Kagan seems to be drawing on the work of Professor Stuntz, who wrote extensively on both overcriminalization and excessive prosecutorial discretion. As if to signal this intellectual debt, Kagan refers to “a deeper pathology in the federal criminal code,” a turn of phrase that calls to mind Stuntz’s classic article “The Pathological Politics of Criminal Law.” Yet Kagan does not cite Stuntz, despite knowing him and his work well.

The reason for Stuntz’s non-appearance may come in the dissent’s final paragraph, which seems to reject Stuntz’s claim that “[t]he last, and probably best, solution” to the criminal law’s pathologies “is to increase judicial power over criminal law.” This judicial intervention may be warranted, in Stuntz's view, given that "institutional competition and cooperation" between the political branches "always pushes toward broader liability rules, and toward harsher sentences as well." To be sure, Stuntz was pessimistic about  vagueness and the rule of lenity, which (he feared) might actually “cause more overcriminalization.” But he also argued that a more robust “notice” doctrine, accompanied by an expansion of due process, might be good first steps. (Stuntz offered additional and somewhat different views in his landmark book, The Collapse of American Criminal Justice.)

Yates of course does not embrace Stuntz’s prescriptions. But it’s still worth entertaining the possibility that the plurality’s due process themes and citation of Bond could perhaps be a first step toward Stuntz’s proposed first steps. 

Posted by Richard M. Re on March 2, 2015 at 05:25 PM | Permalink


This has been a great series of posts on Yates, Richard. If folks have further interest in how Stuntz's work relates to the Yates case or white collar crime more generally, I just posted an article that addresses a new way of considering the harms of overcriminalization, particularly in white collar cases. It draws heavily on Stunz and incorporates criminological and behavioral ethics theories to argue that overcriminalization may actually be fostering more criminal behavior because it delegitimizes the criminal law, therefore offering offenders more opportunity to rationalize their bad behavior--the crux of the problem of white collar crime (at least in my estimation, and as argued by Donald Cressey and others). I was happy to cite some of these posts on Yates in the article. If interested, see Fishy SOX: Overcriminalization’s New Harm Paradigm, 68 Vanderbilt Law Review __ (2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2573042.

Posted by: Todd Haugh | Mar 5, 2015 11:52:22 AM

True that, Will. The Court applied the "decide the case on statutory rather than constitutional grounds" canon. But it didn't decide the statutory question based on the theory that the government's reading would raise a serious constitutional question. I wouldn't be surprised if some of the Justices in the majority thought that the avoidance canon was implicated -- but, I imagine, there were others who would have insisted on not giving credence to the notion that the constitutional question is a serious one. (And I think they'd have been right to so insist; see http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-158_resp_amcu_prof_golove-etal.authcheckdam.pdf)

Posted by: Marty Lederman | Mar 3, 2015 9:44:07 AM

I think I know what Marty means, but worth noting that Bond did apply the portion of the avoidance canon that asks the Court to avoid deciding a case on constitutional grounds if it can. From the bottom of page 9:

Notwithstanding this debate, it is “a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.” Escambia County v. McMillan, 466 U. S. 48, 51 (1984) (per curiam); see also Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring).

Posted by: Will Baude | Mar 3, 2015 9:36:36 AM

Excellent post. Just a quibble, but an important one: The Court in Bond did not apply the avoidance canon, or suggest that the statute would raise serious constitutional questions under the government's reading (which it would not, IMHO). It applied a federalism-protective canon of construction, to be sure -- but not the avoidance canon. (The canon the Bond Court employed is especially important in King v. Burwell, too -- see http://balkin.blogspot.com/2015/03/plain-meaning-absurdity-and-almost.html.) In some sense, RBG is doing something similar in Yates -- not suggesting that the Kagan/USG reading raises serious constitutional questions, but merely applying a presumption that Congress would not intend to so radically alter the basic structure of obstruction offenses without a clearer announcement to that effect. Seems as if the elephants-in-mouseholes adage is applicable in so many statutory cases these days . . .


Posted by: Marty Lederman | Mar 3, 2015 7:25:47 AM

This is a much more appealing account of Yates than what's on the face of the opinion, and I'm not sure I buy it as a descriptive matter. But bracketing that question and assuming that due process concerns drove the result, Yates is a great example of why due-process-infused interpretation of criminal statutes, as opposed to direct as-applied challenges on fair notice or proportionality grounds, is a really bad idea. Any textually permissible narrowing construction is likely to be horribly over/underinclusive in addressing due process concerns. If the plurality thinks Yates had "scant reason" to anticipate a felony prosecution (which I doubt), how much more surprised would Yates have been by a felony prosecution if his only offense were, say, deleting a photograph of his catch from his cell phone, or tossing a memory card from his digital camera overboard? Yet on the plurality's reading, and probably Alito's, that's just the rare sort of case where "tangible object" does some work. On the other hand, no one would be too surprised to face a felony prosecution for incinerating a corpse in order to thwart an investigation, but the Court has to say that's not a felony to leave out Yates's fish.

What the Court would seem to like to say is that obstructing investigations into picayune regulatory violations isn't a felony, or maybe even that 1519 only addresses obstructing investigations of financial frauds. But with absolutely no textual hook to say so, the Court has to fall back on a distinction between documentary and physical evidence that only very roughly maps on to a distinction between investigations of white-collar offenses and other investigations. In attempting to limit the statute's coverage to conduct that people would expect Congress to make a felony, the Court ends up devising a statute that gives less fair notice than it did before the Court rewrote it (which was also the case in Bond). Because the Court couldn't carve out everything that seems intuitively non-felonious, it had to accept a carve-out that's more counterintuitive than an ordinary reading of the statute - it's okay to conceal what in some cases will be the best evidence of serious federal crimes,* but not to destroy weak documentary evidence pertaining to any matter under the sun within federal jurisdiction, a rule which no one would anticipate - and that's vastly vaguer than the statute read literally.

* Suppose that instead of a fisherman catching undersized grouper, this case were about a poacher who killed hundreds of baby seals on federal land, and then elaborately disguised the pelts as fur of some non-protected species in an attempt to escape detection. Might he be a little surprised to learn that the statute criminalizing that conduct was enacted as part of Sarbanes-Oxley? Probably so, but I doubt he'd be surprised that his conduct was felonious.

Another problem with letting "due process themes" drive interpretation in a subterranean fashion, instead of openly using due process to narrow statutes, is that it's pretty difficult to determine if there's a due process problem without at least consciously doing the work of deciding whether there is one. Focused attention on the fair notice problem here might have revealed that: (a) the statute's more than clear enough for fair notice purposes, (b) that common criminals don't have tenuous applications of canons of construction on the brain, or sweat over inelegant verb-noun mismatch, but are adequately familiar with the plain meaning of common terms, and (c) that it's really no great surprise that Congress would make it a felony to dispose of six dozen illegally killed animals, protected by federal environmental regulation, and carefully replace them with dozens of legally killed animals so as to undermine the testimony of a federal agent who previously caught you with the illegal kills. Instead, the Court, operating on a level of inchoate unease rather than sustained analysis, ends up letting its reasonable-enough concerns about prosecutorial discretion in this case casually infect its view of whether Yates would expect his conduct to be prosecutable - which is a category error.

Posted by: Asher | Mar 2, 2015 11:11:44 PM

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