Overcriminalization and the Trial Penalty: Gaining Traction One Case — And One Justice — at a Time (

In the Yates case and the Whitfield case, overcriminalization and the “trial penalty” attracted the attention of the U.S. Supreme Court.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

For years, NACDL has worked to heighten awareness about overcriminalization — a phenomenon that embraces various evils, including diminished intent requirements in criminal statutes and overly broad expansion of criminal statutes by prosecutors. Indeed, the September 2014 edition of this column discussed at some length the case of Yates v. United States, which was about to be argued before the Supreme Court.1 The case involved a prosecutor’s invocation of the anti-shredding provisions of the Sarbanes-Oxley Act of 2002 to subject a fisherman to a 20-year count for the alleged disappearance of three undersized red grouper from his fishing vessel. Another issue on NACDL’s reform agenda is the trial penalty — the vast array of prosecutorial charging and sentencing tools used to bludgeon the accused into surrendering the right to a trial for fear of geometrically increased sentences if convicted after trial. This column has similarly addressed that issue on two occasions.2 This edition of The Champion also features a treatment of the problem by NACDL member David Gerger.3 

These two problems are clearly not unrelated. As evidenced in Yates, and in the Bond4 case before that, prosecutors frequently stretch statutes far beyond their intended reach solely to increase their leverage to extract a plea. Thus, overcriminalization and the trial penalty are essentially two sides of the same coin. And while there has been considerable commentary on both problems in recent years, especially as NACDL and other groups seek to elevate public awareness about the injustices they cause, as far as I am aware the Supreme Court has never explicitly acknowledged either problem as such. Until now.

The Supreme Court heard oral argument in the Yates case on Nov. 5, 2014. To say the least, it was a spirited argument, in which the justices appeared incredulous at the government’s use of the Sarbanes-Oxley anti-shredding provision to prosecute the fisherman.5 Two points in the argument were truly noteworthy and clearly indicated that members of the Court now recognize the realities of overcriminalization and the trial penalty.

First, this exchange took place as Justice Kennedy questioned the attorney for Mr. Yates about how broadly the term “tangible object” may be defined in the context of a statute explicitly enacted to address destruction of records during a securities investigation:

Counsel (for Mr. Yates): The typewriter would not be. The piece of paper that the typewriter is inscribing on is a device that’s designed to preserve information. It’s simply making the information.

Justice Kennedy: I understand the argument and the argument that you make has considerable force about over criminalizing, but. …6 

Although the transcript reflects two words, there it is — the first known invocation of the term overcriminalization by a Supreme Court justice.

Later, during the government’s argument, somewhat incredulous that the government would invoke a potential 20-year penalty to address this kind of criminality, the following exchange took place between the government’s attorney and the chief justice:

Counsel (for the government): Your Honor, we would not — we do not prosecute every fish disposal case, and we do not. So I think if you —

Chief Justice Roberts: But the point is that you could, and the point is that once you can, every time you get somebody who is throwing fish overboard, you can go to him and say: Look, if we prosecute you, you’re facing 20 years, so why don’t you plead guilty, or something like that. It’s an extraordinary leverage that the broadest interpretation of this statute would give federal prosecutors.7 

The chief justice in Yates did not use the phrase “trial penalty” — but he could not have been more explicit in describing precisely that phenomenon. Less than one month later, he came even closer in another case, when he used even harsher language in his exchange with the government’s attorney.

That case was Whitfield v. United States, and it clearly presented a much more serious factual setting. Whitfield involved a bank robbery and the meaning of the word “accompaniment.” A bank robbery offense under 18 U.S.C. § 2113(a) applies whenever a robber employs force, intimidation or violence against a person. That provision does not have a mandatory minimum sentence. Under subsection (e) of that statute, however, if the robbers force someone to “accompany” them, it carries a mandatory 10-year minimum. The question in Whitfield was whether that provision applies even if the robber only requires a person to take a single step.

As he grappled with the apparent absurdity of the notion that requiring a person to take even a single step during a forcible robbery would result in such a significant enhancement, the chief justice offered this observation:

But the point is the idea of someone whose bank is being robbed not being forcibly compelled to accompany someone is fanciful, and all you have to do, again — I guess it’s repeating the question — is you go two feet and the prosecutor is armed with another 10 years automatically in his pocket, and then you use that to extort a plea bargain of, you know, six years, somebody who might otherwise wanted to go to trial.8 

Prosecutorial abuse of the charging power and mandatory minimums to “extort” (as the chief justice phrased it) a guilty plea is precisely what all defense lawyers have come to understand is the essence of the trial penalty. It will take a lot more than these two prime examples of overreach to effectively curtail the imbalance that makes the exercise of the right to a trial cost prohibitive. But make no mistake about it — there is no putting this genie back in the bottle. Prosecutorial domination of the plea bargaining process has swallowed the constitutional right to a trial, and people in important places are taking note. Overcriminalization and the trial penalty have finally attracted the attention of the Supreme Court.


  1. Norman L. Reimer, Whether Fish or Fowl — Prosecutorial Overreach Is a Poisonous Aspect of Overcriminalization, The Champion, September 2014 at 7.
  2. Norman L. Reimer, NACDL to Expose the Trial Penalty in Bid to Resuscitate the Sixth Amendment, The Champion, September/October 2013 at 7; Norman L. Reimer, Federal Sentencing Reform Advances Despite a Brazen Prosecutorial Embrace of the Trial Penalty, The Champion, March 2014 at 7.
  3. David Gerger, The Death of Criminal Law, The Champion, January/February 2015 at 38.
  4. Bond v. United States, 134 S. Ct. 2077 (2014). In Bond, the Supreme Court unanimously struck down the government’s use of a provision of the Chemical Weapons Treaty Enabling Act to prosecute a simple assault.
  5. The oral argument is available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-7451_4gd5.pdf. It is a terrific read, especially for those who enjoy seeing government attorneys receive rough treatment as they defend absurd prosecutorial tactics. Of course, the real test is how the case is decided. As of this writing, that is unknown.
  6. Yates v. United States, Transcript of Oral Argument at 5 (2014) (No. 13-7451).
  7. Id. Transcript at 31.
  8. Whitfield v. United States, Transcript of Oral Argument at 35 (2014) (No. 13-9026). On Jan. 13, 2015, a unanimous Supreme Court affirmed Larry Whitfield’s conviction. “Accompaniment” includes movement that would normally be described as from one place to another, the Court said, including a distance of only a few feet. 574 U.S. ____ (2015), slip op. at 3.

About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.

Norman L. Reimer
1660 L Street, NW, 12th Floor
Washington, DC 20036
Fax 202-872-8690

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