Sometimes it’s two words, like “tangible items.” Other times, four, like “established by the state.” But words are, for lack of a better word, a bitch. When it comes to law, the meaning of a word could mean the difference between freedom or prison, between guilt and innocence. They matter.
Historic crimes, murder for example, are considered pretty well understood. They’ve been around forever, firmly established in the common law preceding statutory penal laws, and subject to contentious parsing over and over, until most would presume we know what they are. Yet, we still see the occasional challenge that “changes everything,” such as when New York’s Court of Appeals held “depraved indifference” murder was a mens rea element rather than an objective component of the offense.
But words are easy. We use them all the time. We know what they mean. Even if we can’t give a specific definition (how do those guys who write dictionaries come up with those definitions?), we know. This, of course, is how normal people view words. Lawyers, on the other hand, have a tendency to defy normal. It’s not one of our most endearing features.
In the post-Enron environment of white collar crime, where so many get the sense that bad stuff is happening that somehow eluded prosecution, the attempt to craft laws to criminalize conduct has brought along a problem, readily apparent in the recent Yates decision by the Supreme Court.
A line in §1519 of Sarbanes-Oxley prohibited the destruction of evidence, which was generally understood to address the evil of corporations destroying financial records that revealed criminal conduct. A perfectly good purpose, which included the words “tangible objects.”
Yates argued that §1519’s reference to “tangible object” subsumes objects used to
store information, such as computer hard drives, not fish.
If you don’t love that argument, you’ve lost all touch with humanity. And yet, it’s wrong, even though the Supreme Court agreed with it. The problem shifted from definition to philosophical, as everyone knew that wasn’t what Congress meant by “tangible object,” and yet a fish is, without question, a “tangible object.” Touch one for yourself and you’ll see. Tangible, all the way.
As laws have been, and continue to be, drafted to cover conduct that departs from historical crime, wordsmiths struggle to find ways to express what conduct falls within a law’s ambit. It’s hard work, and more often than anyone cares to admit, impossible to arrive at a description that includes the conduct to be criminalized, without including conduct that no one “means” to criminalize.
The arguments surrounding poorly crafted laws are dangerous; they emphasize the terrible evil that demands eradication while ignoring how the same words cover other conduct that isn’t bad, and is often constitutionally protected. It focuses attention on the bad, while deflecting attention away from the problem. It does not, however, eliminate the problem. And as Yates showed, prosecutors see conduct that offends them and search for words that criminalize it, even if that was never what those words were meant to do.
As the New York Times Dealbook notes in a survey of how recent white collar crimes have been stretched by imaginative prosecutors to cover conduct that wasn’t meant to fall within their proscription, it’s a very real problem.
The court’s decision is part of a trend to more narrowly interpret statutes used to prosecute white-collar crimes. The message is that the government should be careful in how aggressively it tries to apply provisions that carry heavy punishments to defendants who pose little threat to the public’s physical safety.
This became particularly acute in the Southern District of New York, where United States Attorney Preet Bharara, the golden boy of financial crimes, got smacked for pushing the envelope too far.
In United States v. Newman, the United States Court of Appeals for the Second Circuit criticized the United States attorney’s office in Manhattan for “the doctrinal novelty of its recent insider trading prosecutions” in reversing the conviction of two hedge fund managers.
Newman stopped the downstream flow of insider trading prosecutions, where the crime was extended from those who engaged in it first hand to those who got the benefit but had no clue it was evil information.
When it comes to criminal laws, as opposed to others, one saving grace is the Rule of Lenity, which gives the defendant the benefit of the doubt when a law is ambiguous as a matter of notice. It’s there to be used, though not always applied, under the theory that a person can’t know that conduct is wrong if the law fails to adequately define the prohibited conduct.
It might seem, given Yates and Newman, and even Feingold, that the courts have this under control, so that it’s not as much of a problem as I make it out to be. But consider that each of these people was arrested, prosecuted, convicted and sentenced, before the courts eventually put on the brakes.
Sure, they’re the winners, after their lives were subject to massive upheaval. And, as any defendant fighting on appeal will tell you, there was no assurance that they were walking away. Others, in the meantime, copped out because they weren’t up to the fight or couldn’t muster the wherewithal to take on the government, and watched these victories from their prison cells. Or from their miserable lives after they lost their jobs, lost their licenses, and watched their lives fall to tatters. Tell them how this isn’t a real problem.
While someone is calling to criminalize something daily, crying about some terrible harm being done to someone somewhere, all of which may well be true, it does little to overcome the problems faced with crafting laws that are so properly worded as to only criminalize what they’re meant to prohibit and no more.
The joke, when Bill Clinton was asked about what happened with “that girl,” is unfortunately more true than normal people want to realize.
Law is often about figuring out what a particular word or phrase means, as with President Bill Clinton’s now-famous reply about his relationship with Monica Lewinsky: “It depends on what the meaning of the word ‘is’ is.”
It’s not good enough that you think you know what it means, no matter how much you hate Clinton. What matters is what the words say. What matters is how words can be pushed beyond their original intentions based on the vagaries of language and a prosecutor’s zeal to get someone. No amount of passion or teary-eyed story of harm provides definition to a law when the words fail. As we push criminal law into areas wholly untouched before, we face semantic disaster.