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.
First posted on Prawfs.