White-collar criminal practitioners spend much of their time arguing about how prosecutors should exercise their discretion in making charging decisions, often against the backdrop of broad and uncertain criminal statutes. When the Supreme Court grapples with the same issue, however, significant new criminal law doctrine may emerge. That potential became apparent most recently in the oral argument of Yates v. United States, the peculiar case of a fisherman prosecuted for obstruction of justice under Section 1519 of the Sarbanes-Oxley Act for throwing undersized fish back into the sea.
The Supreme Court’s consideration of Yates, and its decision in another recent case, Bond v. United States, suggest that some members of the court are deeply troubled by the combination of the vast reach and severity of federal criminal law and the breadth of prosecutorial discretion. The court is not alone. Practitioners, scholars and commentators alike have expressed concerns about the nation’s current criminal scheme that, according to recent estimates, includes more than 4,450 federal criminal laws and an additional 300,000 federal regulations that may trigger criminal sanctions.1 Reflecting an unusual confluence of interest on the political left and right, last year Congress held hearings titled “Over-Criminalization of Conduct/Over-Federalization of Criminal Law” and “Reining in Overcriminalization.”2
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