More on Yates: Fish and Overcriminalization

Co-blogger Solomon Wisenberg's post on today's Supreme Court decision in Yates v. United States highlights the plurality opinion that focuses on a straight statutory interpretation analysis.  But there is an interesting and important note in the dissent that is worth mentioning.

In Part III of the dissent it states, "That brings to the surface the real issue: overcriminalization and excessive punishment in the U.S. Code."  -  So even though the dissenters are not willing to toss out the statute with the fish, they are recognizing the overcriminalization movement.

Second, the dissenters state - ". . . , I tend to think, for the reasons the plurality gives, that s 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 s 1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code."

The recognition by these dissenting justices of the growing problem of overcriminalization in the United States is an important step. In many ways this decision is really a 9-0 decision in that the plurality tossed the fish case out because it did not fit in this sea.  The dissenters felt their hands were tied to allow the fish case to stay, but they weren't happy with what Congress was doing and sent their message in the sentences above.  Will Congress listen, that is the important question here.

(esp)