ND Experts: Courts should resist 'overcriminalization' | News | Notre Dame News | University of Notre Dame Skip To Content Skip To Navigation Skip To Search University of Notre Dame Notre Dame News Experts ND in the News Subscribe About Us Home Contact Search Menu Home › News › ND Experts: Courts should resist 'overcriminalization' ND Experts: Courts should resist 'overcriminalization' Published: November 11, 2014 Author: Michael O. Garvey 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 endorse arguments they have made in a friend-of-the-court brief in the Yates v. United States case now being 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 found under the 20-inch legal minimum size. Using a provision of the 2002 Sarbanes-Oxley Act that makes 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 term of to 20 years. During 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 something,” and Justice Antonin Scalia wondered aloud “what kind of mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?” Justice Anthony Kennedy suggested that the case called into question whether judges should “use the concept or refer to the concept (of prosecutorial discretion) at all anymore.” In their brief, professors Garnett and Smith joined other criminal law scholars in urging the court not to treat the Yates prosecution as an isolated case, arguing that it illustrated the problems created by “overcriminalization.” “I am glad the court finally seems to understand that ‘prosecutorial discretion’ is no panacea,” Smith said. “Federal prosecutors routinely engage in overcharging — seeking disproportionately severe punishments which no reasonable person could believe warranted. “If proportionality of punishment and the rule of law are to mean anything, federal courts must take seriously their obligation to ensure that federal prosecutors are not exceeding the proper scope of their authority under criminal statutes.” The friend-of-the-court brief brief is available here. Contact: Stephen Smith, 574-631-3097, ssmith31@nd.edu; Richard Garnett, 574-631-6981, rgarnett@nd.edu Posted In: Diversity, Equity & Inclusion Home Experts ND in the News Subscribe About Us Related September 30, 2022 New prison education initiative joins Center for Social Concerns September 29, 2022 ACE program prepares educators for next generation of linguistically diverse students September 28, 2022 Tyson Yunkaporta, Indigenous Australian scholar and Nasr Book Prize winner, to visit campus September 27, 2022 Alpha Phi Alpha president to be featured ‘fireside chat’ guest September 20, 2022 Merit-based leadership scholars program works to support and empower Latino communities For the Media Contact Office of Public Affairs and Communications Notre Dame News 500 Grace Hall Notre Dame, IN 46556 USA Facebook Twitter Instagram YouTube Pinterest © 2022 University of Notre Dame Search Mobile App News Events Visit Accessibility Facebook Twitter Instagram YouTube LinkedIn