By now, much of the dust has settled around the Supreme Court’s decision in Yates v. United States. Yates was the odd case of a commercial fisherman convicted of violating 18 U.S.C. § 1519, the “anti-shredding” provision of the Sarbanes-Oxley Act. A federal jury found that John Yates destroyed “tangible objects” as proscribed by the statute when he threw a crate of undersized fish off his boat and into the Gulf of Mexico after a fish and game officer instructed him to keep them on ice until the boat returned to port. Although the judge sentencing Yates commented that the prosecution seemed to have “lost sight of some common sense,” he nonetheless sent Yates to jail for 30 days. The Eleventh Circuit affirmed. A little less than three weeks ago, the Court reversed Yates’ conviction.
Most of the commentary has centered on the surprising mix of Justices making up the 5-4 plurality decision. Justice Ginsburg, joined by Chief Justice Roberts and Justices Breyer and Sotomayor, found that §1519, which was passed to curb corporate malfeasance in the aftermath of the massive accounting fraud scandals of the early 2000s, did not apply to Yates’ conduct because the “tangible object” language could not be read more expansively than an object “used to record or preserve information.” To do otherwise, Justice Ginsburg wrote, would “cut §1519 loose from its financial-fraud mooring.” Justice Alito, who served as the crucial vote via his concurring opinion, found the issue a close one, but ultimately “tip[ped] the case in favor of Yates.” Justice Kagan, joined by Justices Scalia, Thomas, and Kennedy, dissented. She found the term “tangible object” to be “broad, but clear,” covering all physical objects of all kinds—fish included.
To be honest, the exact meaning of §1519’s “tangible object” language never struck me as all that interesting. As I commented early on, in many ways Yates presented only a modest question of statutory interpretation. That was largely borne out as Justices Ginsburg, Alito, and Kagan parsed nouns, verbs, and section titles to make their arguments. I will happily leave it to statutory interpretation and language wonks to work out which side made the better claim.
But what I did find interesting, and what we now know caused the Court to take the case in the first place, is the issue of overcriminalization. The last few paragraphs of Justice Kagan’s dissent focused directly, and candidly, on what some believe is the most vexing problem in criminal law today. She wrote that the “the real issue” of the case was “overcriminalization and excessive punishment in the U.S. Code.” While she differed with the plurality on how to read §1519 and whether the courts are the proper place to curb excessive criminalization and punishment, she ardently agreed that “broad and undifferentiated” statutes with “too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion”—the essence of overcriminalization—make bad law. She went further, stating that “§1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.”
While I applaud Justice Kagan’s comments, I want to use this post to point out something that she and the other Justices missed as part of their analysis. That is, as bad as overcriminalization is described in the opinion, and as detrimental as its harms are characterized, no Justice recognized the full extent of overcriminalization’s ills. The reason is that the Justices viewed overcriminalization through the typical lens, i.e., they approached overcriminalization through the paradigm that links the proliferation of criminal laws to increasing and inconsistent post-act criminal enforcement and adjudication. In other words, overcriminalization’s harms are seen as flowing from how criminal law is applied after an offender’s conduct occurs—whether, for example, an offender is subject to too much prosecutorial discretion or faces disparate punishment.
But overcriminalization’s harms are much more expansive than that. Work done in the fields of criminology and behavioral ethics demonstrates that overcriminalization actually increases the commission of criminal acts, particularly by white collar offenders. Overcriminalization does this by delegitimizing the criminal law, which fuels offender rationalizations. Rationalizations are a key component in the psychological process necessary for the commission of white collar crime—without rationalizations, offenders like Yates are unable to square their self-perception as “good people” with the illegal behavior they are contemplating, and therefore their criminal conduct does not go forward. Overcriminalization, then, is more than a post-act concern. It is inherently criminogenic because it facilitates some of the most prevalent and powerful rationalizations used by would-be offenders, completing the psychological circuit that allows for criminal violations. Instead of deterring crime, then, overcriminalization is fostering the very conduct it seeks to eliminate.
Although space constraints do not allow for a full explanation of how overcriminalization interacts with offender rationalizations to increase criminal behavior ex ante, let me give an example from the Yates case to help demonstrate the concept. Just after the federal agents left John Yates’ boat, trusting that he would leave the suspect fish untouched until the boat returned to port, Yates rationalized his soon-to-be criminal behavior. We know this because Yates explained his thought process as he was preparing to throw the fish overboard. He told his crew that “if the [officers] wanted to make sure that the fish were still [on board], they should have put a mark on their foreheads.” Criminologists call this a classic “vocabulary of motive,” because by verbalizing his future actions in this way, Yates minimized responsibility for his conduct. By lessening his responsibility—it was the agent’s fault, not his—Yates was able to look on his obviously improper behavior as acceptable, thereby allowing him to keep his self-perception as an “unassuming, hardworking American” intact. This is a necessary step in the commission of white collar crime.
Overcriminalization’s role in fostering rationalizations like the one Yates used is that it makes the criminal justice system more uncoordinated and illogical—more unjustifiable. Whether through inconsistent enforcement or overly harsh adjudication, overcriminalization lessens the law’s overall legitimacy. It is this perceived illegitimacy that provides space for would-be wrongdoers like Yates to rationalize their conduct. They see “defenses” to the law all around them, which they then internalize and incorporate into their own thought processes. Once this occurs, there is little stopping an offender’s future criminal conduct from going forward.
This phenomenon is on display in the Yates case. Yates believed that commercial fishing and inspection law lacked legitimacy, which he demonstrated repeatedly. Before and after his arrest, he questioned the validity of the fishing regulations and the related secondary offenses with which he was charged. He also questioned the exercise of discretion by the government agents and prosecutors. And, he questioned the criminal law’s applicability to him and his behavior. None of that is surprising given Yates’ environment and the legal landscape he faced—a world governed by multiple laws addressing the same conduct, overlapping state and federal jurisdiction, overlapping enforcement actors, and incongruous civil and criminal penalties. This is quintessential overcriminalization, and it aided Yates in creating criminogenic rationalizations. That by no means excuses his behavior, but it does provide a more complete way of understanding overcriminalization’s harms. While the Court was right to take the case and identify overcriminalization as the “real issue,” its analysis was—and will continue to be—lacking unless it considers the “pathology” of overcriminalization through a new lens.
 135 S. Ct. 1074 (2015).
 Transcript of Sentencing at 70, United States v. Yates, No. 2:10-CR-66-FtM-29SPC (M.D. Fla. Dec. 8, 2011).
 Yates, supra note 1, at 1079.
 Id. at 1089.
 Id. at 1091.
 See Todd Haugh, SOX on Fish: A New Harm of Overcriminalization, 109 Nw. U. L. Rev. Online 152, 152 (2015), http://www.law.northwestern.edu/lawreview/online/2015/2/haugh.pdf.
 See Stephen F. Smith, Overcoming Overcriminalization, 102 J. Crim. L. & Criminology 537, 538 n.2, 538 (2012).
 Yates, supra note 1, at 1099.
 See William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 519-20 (2001) (identifying mismatches in enforcement and adjudication as important consequences of overcriminalization). For a wonderful discussion of Stuntz’s impact on the Yates opinion, see Richard M. Re, Stuntz’s Presence in Yates, PrawfsBlawg, (Mar. 2, 2015), http://prawfsblawg.blogs.com/prawfsblawg/2015/03/stuntzs-presence-in-yates.html.
 See generally Shadd Maruna & Heith Copes, What Have We Learned from Five Decades of Neutralization Research?, 32 Crime & Just. 221, 228–34 (2005) (providing an overview of rationalization theory and its place in criminology); Vikas Anad, Blake E. Ashforth & Mahendra Joshi, Business as usual: The acceptance and perpetuation of corruption in organizations, 18 Acad. Mgmt. Exec. 9, 10-17 (2005) (discussing how employees perpetrating corrupt acts engage in “rationalizing tactics”).
 For those interested, please see Todd Haugh, Fishy SOX: Overcriminalization’s New Harm Paradigm, 68 Vand. L. Rev. __ (forthcoming 2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2573042.
 Brief for the United States at 7,Yates v. United States, No.13-7451 (S. Ct. Aug. 19, 2014) (alterations in original).
 See Donald R. Cressey, The Respectable Criminal, 3 CRIMINOLOGICA 13, 17 (1965) (describing verbalizations as “the words that the potential [offender] uses in his conversation with himself”).
 John Yates, A Fish Story, Politico (Apr. 24, 2014), http://www.politico.com/magazine/story/2014/04/a-fish-story-106010.html.
 Cressey, supra note 16, at 14-15. Cressey determined that three key elements are necessary for violations of trust—the essence of almost all white-collar crime—to occur: (1) an individual possesses a “nonshareable problem,” i.e., a problem the individual feels cannot be solved by revealing it to others; (2) the individual believes the problem can be solved in secret by violating a trust; and (3) the individual “verbalizes” the relationship between the nonshareable problem and the illegal solution in “language that lets him look on trust violation as something other than trust violation.” Cressey called the last step “the crux of the problem” of white collar crime.
 Gresham M. Sykes & David Matza, Techniques of Neutralization: A Theory of Delinquency, 22 Am. Soc. Rev. 664, 666 (1957).
 See Yates, supra note 17 (Yates stated, “I believe the agent originally measured my catch improperly and erratically,” and “I should have incurred a financial penalty . . . [but] the Department of Justice wanted a pound of flesh.”).
 Id. (“Nearly three years [after being issued a civil citation], the federal government charged me with the destruction of evidence—yes, fish—to impede a federal investigation.”).
 Id. (“It says something about federal criminal law that it can be used against unassuming, hardworking Americans for a state civil matter.”).
 Yates, supra note 1, at 1099.
The preceding post comes to us from Todd Haugh, Assistant Professor of Business Law and Ethics, at the Kelley School of Business, Indiana University. The post is based on his recent article, which is entitled “SOX on Fish: A New Harm of Overcriminalization”, and available here.