Wednesday, November 5, 2014

Prosecutorial Discretion as an Oxymoron

Today the Supreme Court heard arguments in Yates v U.S., and the direction of the Court's questions shed some light on why they granted cert in a case about the size of fish. It has to do with government overreaching.

Facts: the fisherman had a bunch of too-little fish. The fish police told them to come to shore to answer for their icthyological crimes. The fisherman dumped the little fish and replaced them with bigger fish when they thought the fish police weren't looking. The government charged the fisherman with a destruction-of-evidence crime that carried up to 20 years, and asked for a two-year prison sentence. The court imposed a 30-day lock-up. 

The law was intended by Congress to target Enron-type corporate fraud, and did not necessarily contemplate red grouper catch-and-release. Judge Scalia's questions put the size of the fish in context, as reported by SCOTUSblog,

Scalia leaned forward and, accusingly, told [government lawyer] Martinez that he was defending the law and its use for someone who got only thirty days.  “What kind of sensible prosecutor does that?  Who do you have who exercises prosecutorial discretion? " [and]  "[W]hat kind of mad prosecutor” would use that law in a case like this one?  

It gets better.

Justice Ginsburg (Notorious RBG)interjected, asking whether the Justice Department provided any guidance, “any kind of manual” to limit prosecutors. 

There's more.

C.J. Roberts: "You make [Yates] sound like a mob boss."

And finally: "Justice Kennedy commented acidly that the Court perhaps should no longer refer to the concept of 'prosecutorial discretion' if it was open to use as in this case."

Lyle Denniston's entertaining SCOTUSblog review is here.

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