Every day, the average American commits three felonies. So argues civil-liberties lawyer Harvey Silverglate in his new book “Three Felonies a Day,” the title of which refers to the number of crimes he estimates that Americans perpetrate each day because of vague and overly burdensome laws.
In his book, Silverglate posits that federal criminal laws have become dangerously disconnected from legal tradition and that prosecutors can now pin crimes on anyone for almost nothing at all. The problem, he says, is modern criminal laws, which have exploded in number and become impossibly broad and vague.
I don’t know if I buy all of Silverglate’s arguments. Some seem a touch overblown, and conceptually, I don’t believe all of his exceptions make the rule. And there is something to be said for laws that improve social policy, even if we think they’re overly intrusive or burdensome. For instance, I don’t like speed limits. Indeed, I probably go over the speed limit every time I take the car out. But the data strongly show that speed limits save lives–they generally make us go slower, a good thing.
Still, Silveglate’s thesis is important and well-argued, and he shows without question that some laws have become painfully vague. And while his book occasionally reads more like a legal treatise than a popular text, it’s one that prosecutors should be forced to read, if only to understand how easy it is to go too far.
I emailed Silverglate a few questions recently. His answers are below.
Why did you decide to write this book?
Sometime in the mid-1980s I started to notice a change in the nature of the federal criminal prosecutions that I was handling during the course of my criminal defense and civil liberties law practice. I started to represent more and more indicted clients where neither I nor other lawyers in my firm could figure out quite what the client/defendant had done to deserve to get indicted (or, if we got the case pre-indictment, what the client had done to get investigated or targeted). The client’s conduct seems to me to conform to normal standards and expectations, even if sometimes a bit aggressive or “sharp.” I started to keep notes on this phenomenon.
As the years wore on, the problems got more frequent and more acute. I was representing more and more federal criminal defendants who had done the deeds charged against them, but I did not deem what they did to constitute a crime. In the late 1990s I co-authored another long-gestating book, The Shadow University: The Betrayal of Liberty on America’s Campuses, about disciplinary proceedings on college campuses on the basis of vague speech codes. I vowed that someday I would write a book on this other phenomenon of federal criminal prosecutions on the basis of vague statutes, directed against innocent people.
Why is it important?
As a civil liberties matter, a government which has the ability to prosecute innocent citizens at will, is a government which has achieved the power that has characterized all tyrannical governments throughout history. Such prosecutions, because they can be pre-textual, tend to fly under society’s and the news media’s radar. Professor Alan Dershowitz has written a trenchant Foreword to my book, in which he notes how the Soviet system of “justice” used this technique to control and terrorize dissidents. Indeed, post-Soviet Russia uses the same techniques today – using bogus “tax” prosecutions to imprison critics of the regime. In my view, this is a crucial civil liberties issue, and I’ve seen no one else write about it in any kind of systematic fashion, and so I’ve undertaken to do it. My book could not be written by a scholar or a law professor, but only by a practitioner.
How did the Code of Federal Regulations grow into such a morass?
More and more responsibility for defining and elucidating the law was put, by the Congress, into the hands of bureaucrats, and the inevitable has occurred.
Can you walk me through how exactly you estimated that someone commits three felonies a day?
The “three felonies a day” is really a figure of speech, hardly an exact count. People who are very active in certain fields likely commit more than three arguable federal felonies a day. People who are less active in life and in commerce probably commit fewer. I would imagine that lawyers, accountants, and securities dealers commit more, while fruit-stand vendors commit fewer. But my point was that an active member of our society goes about his or her busy workday not realizing the potential for committing arguable federal felonies in a wide variety of business and personal endeavors on a typical day.
Do you think that there a danger that federal laws can be too specific? That if a law is too particular about details, that someone guilty might be let off on a technicality?
In the first place, I do believe that it is better that a few miscreants go free than that an innocent person be convicted.
Second, if an action is sufficiently bad, then Congress can simply outlaw it in terms sufficiently clear so that ordinary people understand what they may not do. There is surely a golden mean between being too general and too specific. After all, our state common law systems manage to enact and enforce criminal laws that are fairly well understood by the populace. But the federal criminal law is divorced from our common law traditions, and we are suffering the consequences.
Third, a central problem with federal criminal law – especially the laws that fall most frequently in the category of prosecutions I criticize in my book – is that our fraud statutes focus upon the means rather than the substance of a crime. We have, for example, “mail fraud” – fraud committed by the use of the mails. Or “wire fraud” – fraud committed by the use of the means of interstate communications (phone, email). Or “securities fraud” – fraud committed in connection with the purchase or sale of securities. But these statutes do not define what “fraud” means! And often Congress, at the urging of the executive branch and of federal prosecutors, has intentionally kept such definitions vague. See, for example, my discussion in my book, at pp. 114-122, of the federal government’s intentional effort to keep the “insider trading” laws and definitions vague, so that they can prosecute whomever or whatever seems appropriate at the time. This is a veritable formula for tyranny.
What can be done to reform the system?
I have devoted nearly my entire book to exposing the problem, but have only a very few pages devoted to suggesting, in general terms, the remedies. I do not actually propose remedies, but, rather, I propose directions in which we have to travel, and coalitions that we have to create in order to fight this largely under-the-surface tyranny. I decided to do what I do best – tell the world what I’ve learned, from my experience, is going on. I want to start a public discussion. From that discussion I believe remedies will emerge. That’s what democracy is all about, after all.
This item originally appeared in The Open Case magazine.