James here, muscling in on Tiffany’s nicely reconsecrated blog. I confess that we at The Fish Society do not spend a lot of time following the decisions of The Supreme Court of the United States. Still less, do we feel qualified to criticise them. But this one leaves us very upset. Do you mind if I air my views?
Back in 2007, a government inspector carried out a routine inspection on the Miss Katie, a Florida fishing vessel. He found 72 fish that were smaller than the legal limit. The fish were Red Grouper, a massively overfished species. He put the fish together in one box and told the skipper – one John Yates – to hand them over when he got back to port.
Instead, Mr Yates threw the fish overboard and replaced them with larger fish. Much later, he was convicted of disposing of the evidence and sentenced to 30 days in jail.
Mr Yates hit back by saying the law under which he had been convicted did not apply to fishermen. He said it was designed to penalise big companies that shredded documents to frustrate legal investigations. This law, which was introduced after the Enron scandal, is called the Sarbanes Oxley Act. It outlaws the destruction of ‘any record, document or tangible object’ in an attempt to avoid prosecution.
This argument eventually got to The Supreme Court, which last week came out with a narrowly split judgement. Five of the judges decided that fish was not a physical object within the meaning of the Sarbanes Oxley Act. Recognising the potential accusation of perversity, their spokesman Justice Ginsberg said ‘Congress did not intend the Sarbanes Oxley Act to punish rogue fisherman’. Four judges disagreed. Mr Yates won.
The 46 page judgement is here, and if you’re entertained by angels dancing on pinheads, it’s a good read, featuring Dr Seuss, a colonial farmhouse and hefty doses of disparagement bordering on bile as the two lead judges – Ginsburg and Kagan – lay into each others’ opinions. Surely these two do not smile at each other in private.
Exquisite learning and subtle wisdom ooze out of every sentence in the two opinions. Equally clearly, the law is an ass. No-one denies that John Yates did wrong. He should not have got off. Catching undersized fish is a very bad thing. It seems to us that the main theme in the majority opinion was ‘overcriminalisation’. Sarbanes Oxley allows a maximum 20 year sentence for destroying evidence. Justice Ginsberg seems to think that a law capable of resulting in a 20 year sentence should not be used for getting rid of a few fish. But no-one ever suggested a 20 year sentence. In our view, overfishing has been overlooked for far too long. Like for about 100 years. If John Yates had been given the 21 months which the prosecutor originally sought – and others were dealt with in the same way – there would be a few more fish in the sea.
You can read more on this here. OK, rant over. Tiffany will resume normal service imminently.