Don’t Yates Me, Bro

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.

18 thoughts on “Don’t Yates Me, Bro

  1. alanlaird

    In the paragraph about the Rule of Lenity,
    “… under the theory that a person can’t no that conduct is wrong…”
    no = know?

    Also at the end of the next paragraph breaks should perhaps be brakes…

    Know need to post.

    1. John S.


      While someone is calling to criminalize something daily, crying about some terrible harm being done [to] someone somewhere

  2. Patrick Maupin

    We supposedly have a “rule of law” so that even unsympathetic people like Weev don’t get prosecuted for merely being assholes.

    But, as you point out, many of the laws were written in a very haphazard fashion, such that, far too often, a parsing can be both unambiguously correct, yet clearly not what was meant, so then we’re back to the people problem that the rule of law was meant to address, except this time the mendacious bastards of power have the unambiguous law on their side.

    I think we need a constitutional amendment that requires the US Code to be less than 500K words, and requires the removal of 10 words for every one added until it gets there.

    1. SHG Post author

      The problem goes beyond laws written in a “very haphazard fashion.” Criminal laws used to address the big wrongs, those with mens rea, those that caused inherent harm. We’re now in the age of regulatory crimes, micromanaging small bits of conduct that may be wrong, may cause harm, but are inherently hard to distinguish from other small bits of conduct or larger pieces of conduct that are generally acceptable.

      We get into trouble because language is a relatively blunt weapon, contrary to what most people who don’t spend too much time pondering the meaning of words believe. And language becomes increasingly blunt as it becomes popularly untethered from definition, the word “rape” for example. If that word is too loaded, then consider “survivor.” When these words are used today, we really have no idea what the person using them mean.

      1. Bartleby the Scrivener

        That is a big part of why I absolutely detest regulatory law, much less our ordinary legislated laws. I think our maze of laws will ruin us someday (~100 years from now?).

  3. morgan sheridan

    “When it comes to law, the meaning a word could mean the difference”. Did you intend to write, “…the meaning of a word…” ?

  4. Pingback: Between A Rock And A Hard Drive | Simple Justice

  5. Fubar

    I do my bookkeeping on fish.
    They’re slick, so what more could I wish?
    The tax man said “Stop!”. He
    Claimed fish are too sloppy.
    So I cooked them and served him the dish.

      1. Fubar

        [I credit Gerard Manley Hopkins for the slightly sprung rhythm, the malleable limerick form for not giving a damn about amphibrachics; and blame my lousy proofreading for the superfluous period.]

  6. Jim Tyre

    A necessary but not yet extant law is that any decision about fish must find a way to cite a certain Seventh Circuit decision:

    We will not reverse a determination for clear error unless it strikes us as wrong with the force of a 5 week old, unrefrigerated, dead fish.

    S Industries, Inc. v. Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir. 2001)

    That, my friends, is plain English.

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