► New Jersey Star-Ledger
► Nieman Watchdog
► SwitfEconomics
► Tales of a Public Defender Investigator
► Policy and Medicine
► Forbes.com
► Reason Magazine's Hit&Run
► Wendy Kaminer's Letter From America
► American Daughter
► Huffington Post
► OpEdNews
► The Crime Report
► Cato@Liberty
► threedonia.com
► Wall Street Journal Law Blog
► Taking Liberties (CBS News)
► LewRockwell.com
• See Also: Harvey's five-part series guest-blogging on the Volokh Conspiracy
► Monday: Honest Services Fraud: Your Third Felony Today?
► Tuesday: Keeping the Nation Safe, or Making Citizens Vulnerable? The Dangers of Vagueness in Anti-terrorism Laws
► Wednesday: Protecting Investors or Prosecuting Innocents? The Dangers of Vagueness in Financial Fraud Laws
► Thursday: How the "Independent" Fourth Estate Has Failed in its Critical Duty
► Friday: The Thin Line Between Activism and Obstruction
"'Wiseguy' indictment is just the ticket for LiveNation"
New Jersey Star-Ledger
March 4, 2010
A CAPTCHA program requires you to decipher some squiggly lettering before you can buy tickets. The Wiseguys hired a programmer who conquered CAPTCHA. They bought a lot of tickets, all at the price Ticketmaster was asking.
So where’s the crime? That’s a mystery to Harvey Silverglate. Silverglate is a lawyer and legal scholar who is the author of a new book "Three Felonies a Day: How the Feds Target the Innocent." From the title you no doubt deduce that Silverglate is a critic of the way the feds keep thinking up ways of turning perfectly legal activities into crimes that carry sentences of 20 years or so.
"This sounds like another made-up federal crime," said Silverglate. The Wiseguys didn’t embark on an unlawful scheme, he said, "They just took a lawful scheme and made it more efficient."
One of the charges against the Wiseguys was wire fraud, an offense so open-ended that Tiger Woods could face federal time for every phone call he made to his missus from some cutie’s crib. The guys were also charged under an anticomputer virus statute that bans damaging a computer system. But they didn’t damage CAPTCHA; they outwitted it.
"This happens all the time," said Silverglate. "It’s a game of cat and mouse."
►See also: "The prosecutors vs. the people of New Jersey" (December 29, 2009)
"Writer charges abuse of justice in the Kerik case"
Nieman Watchdog
February 19, 2010
The corruption case of former New York City Police Commissioner Bernard Kerik shouldn’t end with the four-year prison sentence imposed on him here Feb. 18
After the prison doors are scheduled to clang shut on Kerik May 17, the media need to re-examine how federal authorities can railroad someone like Kerik into a guilty plea this way. The procedures violate gut-sense fairness, albeit probably not in a legally enforceable way. Who can take on the government, after all, if a defendant no longer dares?
U.S. District Judge Stephen Robinson approved unusually aggressive prosecution tactics, such as depriving the defendant of lawyers by designating them as witnesses. Robinson even suggested last fall to the defense that Kerik hire a friend of the judge's in case another change had to be made to remove conflicts.
Meanwhile, the judge was crippling the defense by imprisoning Kerik pending trial and berating him in open court as exemplifying “arrogance,” and worse.
On Nov. 5, Kerik gave up by admitting to eight felonies. By then, the defendant had spent millions on his defense only to conclude he couldn’t direct a successful defense from prison with his money running out, and still win three trials in two cities fighting on all fronts.
Let’s accept at face value Kerik’s admissions that he committed crimes and disgraced himself.
Even so, Kerik was largely forbidden by pre-trial rules from protecting his reputation from hundreds of negative news stories, many of which alleged mob connections that the prosecution waited until after his guilty plea to refute as unmerited. Meanwhile, my investigation reveals that Kerik also faced enemies in the private sector who secretly funded a smear campaign against him for advantage in various potential business relationships and political intrigues.
More generally, abusive tactics are all too common nationally in federal white-collar crime prosecutions. Gross abuses have occurred in politically tainted prosecutions of former Alabama Gov. Don Siegelman and famed Pittsburgh coroner Dr. Cyril Wecht, among others whom I’ve been researching.
Experts further document the problems in thorough, non-partisan recent books. One is Harvey Silverglate’s Three Felonies A Day: How The Feds Target the Innocent. Another is Timothy Lynch’s In the Name of Justice. A study by University of Missouri professor Donald Shields shows highly suspicious patterns of political prosecutions the last decade. These include the federal prosecution of the Democrat Siegelman, which has important parallels to the prosecution of Kerik, a Republican.
"New Year’s Legislation"
SwiftEconomics
January 2, 2010
According to CNN, starting on or near January 1st, 40,697 new laws will come into effect…As if we didn’t have enough laws already. As we speak, you almost certainly broke the law today in some way, form or fashion, as did I. This new wave of legislation reminds me of Harvey Silverglate’s disturbing new book, Three Felonies a Day (the approximate average for an American citizen) or Gene Healy’s, Go Directly to Jail: The Criminalization of Nearly Everything. We simply have too many laws in this country and it’s time our legislatures made the resolution to start thinning out our law books.
"Three Felonies a Day Book Review"
Tales of a Public Defender Investigator
December 3, 2009
The most disturbing aspect of this book is that it makes one realize that lawyers, doctors, accountants and other professionals acting in good faith, can commit "three felonies a day", simply by discharging their fiduciary responsibilities to their clients. In one case history, Silverglate describes how a defense attorney can be charged with obstruction of justice, even in the course of attempting to represent a criminal defendant. In another, the author describes how a corporate executive was accused of destroying evidence even though he was attempting to comply with his organization's established document retention policies.
The book is well written and well documented. You should enjoy reading it.
It may also scare the hell out of you.
"Three Felonies a Day: How the Feds Target the Innocent"
Policy and Medicine
November 14, 2009
Sensationalist headlines discussing large settlements from cases involving medical device and pharmaceutical companies usually leave the meaningful details out. As a result, the majority of the public is left confused about the legal process and the impact these cases have on physicians, the health care industry, and most importantly, patients.
Fortunately, a recently published book titled, Three Felonies A Day: How the Feds Target the Innocent, written by defense attorney Harvey A. Silverglate, and forwarded by civil liberties attorney Alan M. Dershowitz explains how the government has participated in these “Unhealthy Pursuits of Medical Device and Drug Companies.” In discussing the problems with today’s system, Mr. Silverglate highlights a few cases where the “dictates of the Food, Drug, and Cosmetics Act (FDCA),” unnecessarily harmed doctors, and the patients they served.
"Three Tax Mistakes You Make Every Day"
Forbes.com
October 23, 2009
Harvey Silverglate’s new book Three Felonies a Day argues that a combination of vague laws and changing technologies has led the average American to unwittingly break the law daily. That got me to thinking of an analog in the tax world: Most of us, I fear, mess up tax issues every day. No, these mistakes aren’t felonies. But you don’t want to end up next April 15 having logged 365 days of tax mistakes.
"We're all felons, now"
Reason Magazine's Hit&Run
October 19, 2009
In his new book, the Boston-based civil liberties advocate and occasional Reason contributor Harvey Silverglate estimates that in 2009, the average American commits about three federal felonies per day. And yet, we aren’t a nation of degenerates. On the contrary, most social indicators have been moving in a positive direction for a generation. Silverglate argues we’re committing these crimes unwittingly. The federal criminal code has become so vast and open to interpretation, Silverglate argues, that a U.S. Attorney can find a way to charge just about anyone with violating federal law. In fact, it’s nearly impossible for some business owners to comply with one federal regulation without violating another one. We’re no longer governed by laws, we’re governed by the whims of lawyers.
"Why Libertarians Should Support the Right to Die"
Wendy Kaminer's Letter From America - Spiked!
October 14, 2009
‘[P]hysicians engaged in the good faith practice of medicine are being second-guessed – not by fellow physicians, but by the federal government – and punished under the criminal law for administering what the Drug Enforcement Agency (DEA) of the Department of Justice considers more narcotics than is necessary to alleviate a patient’s pain’, Silverglate reports. ‘Since 2003, over 400 doctors have been criminally prosecuted by the federal government, according to the DEA…
Silverglate’s new book, Three Felonies a Day: How the Feds Target the Innocent, is a chilling account of abuses by federal prosecutors, who’ve been empowered by the dramatic, recent increase of broad, vaguely written federal criminal laws. (According to a 1999 study by the American Bar Association, 40 per cent of all federal criminal laws enacted after the Civil War dated back only to 1970.) Invoking this complicated, expansive web of penal law, federal prosecutors now enjoy the power to select someone for prosecution first, and decide how to charge him later, Silverglate demonstrates convincingly.
"Legal Experts Sound Alarm About DoJ Abuses"
American Daughter
October 9, 2009
Dramatic evidence comes also from Boston defense attorney Harvey Silverglate, author of Three Felonies A Day: How the Feds Target the Innocent and a house Judiciary Committee witness Sept. 29. His theme: The average busy U.S. professional commits three felonies daily. Authorities can thus pick and choose whom to prosecute, with scant review by courts, defense attorneys and the news media.
His compelling case studies focus on health care, high-tech, law, financial services, labor, media and national security. He portrays prosecutors railroading Michael Milken, Martha Stewart and Frank Quattrone into unfounded guilty pleas, much of it to the applause of a largely clueless press.
"Why Did Feds Persecute Celebrity Expert Cyril Wecht? Who's Next?"
Huffington Post
October 5, 2009
Like many government employees, Allegheny County Coroner Dr. Cyril Wecht of Pittsburgh sometimes sent faxes from his office on personal matters. On Feb. 12, 2002, for example, he sent a New Jersey group a bill for a speech.
Four years later, the Justice Department used that fax for one of 84 felony charges against Wecht, thereby forcing his resignation after 20 years. The charges included 27 felonies for sending personal faxes, along with allegations over mileage vouchers, office stationary, permission for students to study autopsies, and requests for staff help.
Nationally, more than 95% of those who are federally accused in the U.S. now plead guilty. But Wecht, widely known as a TV analyst on celebrity deaths, had the means to fight hard to clear his name and stay out of prison.
Court rulings and prosecution errors ended Wecht's ordeal last June. By then, the 78-year-old had spent $8 million on legal fees over three years, putting him $6 million in debt currently. Authorities dropped the majority of charges against him just before trial in 2008. Thus, most of the charges were about 23 faxes, whose total out-of-pocket cost to the county was calculated by the defense as $3.96.
Cases like this are creating bipartisan alarm nationally among legal experts who believe that DoJ increasingly abuses its vast powers.
[...]
The most detailed evidence came from Boston defense attorney Harvey Silverglate, author of Three Felonies A Day: How the Feds Target the Innocent and a congressional witness Sept. 29. His theme: The average U.S. professional unwittingly commits three felonies daily -- thus enabling Feds to pick and choose whom to prosecute, with scant review by courts, defense attorneys and the news media. His book provides compelling case studies illustrated by defendants fighting to prevent their ruin from "creative" prosecutors using vague or seldom-enforced laws in health care, high-tech, legal affairs, financial services, labor, media and national security.
"How the Feds Imprison the Innocent"
OpEdNews
October 4, 2009
Paul Craig Roberts
For two decades I have been attempting to make Americans aware that the danger to their liberty comes not from foreign adversaries, terrorists, or criminals, but from prosecutors, who have destroyed law as a shield of the innocent and turned law into a weapon against the innocent. The Tyranny of Good Intentions (the publisher's title) documents how the legal principles that protect our civil liberties were eroded by prosecutors even before the Bush regime obliterated what remained of the Bill of Rights.
[...]
The Tyranny of Good Intentions is a broad stroke. It demonstrates how each civil liberty has been eroded away. Prosecutorial abuse is one chapter in the book.
Silverglates' Three Felonies A Day focuses on how federal prosecutors invent creative interpretations of statutes, sometimes creating new felonies out of vague language or thin air, felonies never legislated by Congress. Federal criminal law is today so vast and so poorly worded that Silverglate reports, truthfully, that each of us, every American, commits three felonies every day without knowing it.
Federal judges, an increasing number of whom are former federal prosecutors, permit the prosecution of Americans for crimes that the defendants did not know were crimes, crimes that never before existed until the federal prosecutor brought the charge. The invention of crimes by prosecutors violates every known legal principle in Anglo-American law. Yet, it has become commonplace. Defense attorneys, a group that also increasingly consists of former federal prosecutors, as Silverglate accurately reports, have lost confidence that it is possible to defend a client from a federal prosecution and see their role, not as the defense, but as negotiator of a plea bargain that reduces the charges and prison time of the defendant, no matter how innocent.
Silverglate shows that many of the plea bargains create precedents that prosecutors can exploit to trap more innocent victims.
The reader by now is asking why prosecutors would waste time on the innocent when there are so many real crimes. Silverglate provides conclusive answers. For example, politically ambitious federal prosecutors, such as Rudy Giuliani and William Weld, pick high profile targets to frame in order to build name recognition for political careers. Giuliani picked Michael Milken and Leona Helmsley. Weld picked Boston mayor Kevin White. Giuliani went on to be Mayor of New York and a candidate for the Republican presidential nomination. Weld went on to be a two-term governor of Massachusetts. Leura Canary, perhaps at the urging of Karl Rove, picked Alabama Governor Don Siegelman. Michael J. Sullivan picked Thomas Finneran, Speaker of the Massachusetts House of Representatives, and so on.
From Silverglate's book, the reader can learn how federal prosecutors manage their frame-ups of innocents. For a targeted city or state political figure, the prosecutor first hunts for a criminal act somewhere in the bureaucracy. Perhaps some low level person has extorted a bribe for a permit. Once such a person is caught, he or she is told that charges will be dropped if information is given that can be used to implicate the mayor or Speaker of the House or governor. As federal district court judges now permit hearsay and uncorroborated testimony, a totally innocent high profile person can be snared on the basis of testimony by a petty crook low in the bureaucracy.
"How many laws did you break today?"
The Crime Report
October 4, 2009
Did you do anything criminal today? Boston defense attorney Harvey Silverglate claims you probably did—without even knowing it.
According to Silverglate, the average busy professional commits three felonies every day—any of which an ambitious and creative prosecutor could turn into an indictment. Seemingly innocuous activities like using the telephone or e-mail at work, or posting information on Web sites could potentially lead to a federal offense if your tone strikes someone as threatening.
Last week, Silverglate testified in Congress in opposition to a proposed cyber-bullying law because, he claimed, it left the line between criticism and bullying dangerously ambiguous. One of the laws, the Megan Meier Cyberbullying Prevention Act is named for a 13-year-old who committed suicide in October 2006 after a former friends’ mother created and used a fake MySpace account to bully her. Silverglate testified that although such legislation is often born of good intentions, the bill’s vague language would result in excessive and unfair prosecutions.
"Federal Cyberbullying Law: 'Worth a Try'?"
Cato@Liberty
October 2, 2009
On Wednesday the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on the proposed cyberbullying legislation I mentioned in this post. Cato adjunct scholar Harvey Silverglate testified at the hearing, and his written testimony is available here.
Silverglate highlighted the pernicious potential of this law, which sits at the nexus of his two books. The Shadow University highlights how speech codes have impaired free expression on college campuses nationwide. Three Felonies a Day shows how federal criminal law has expanded to define various innocuous activities as federal felonies. Put the two together and a federal cyberbullying law is what you get. Silverglate’s recent podcast is available here, and he recently appeared at a Cato book forum.
The proposed cyberbullying law would impose a federal felony (two-year maximum sentence) upon anyone who uses electronic means to communicate a message intended to “coerce, intimidate, harass, or cause substantial emotional distress to a person.” Under this law, rude emails, texts, or blog posts can all subject someone to hard time as long as a receiving party alleges “substantial emotional distress.”
The Committee expressed constitutional concerns over this proposal. Chairman Bobby Scott (D-VA) pointed out the potential chilling effect that this could have on lawful but provocative speech. Ranking Member Louie Gohmert (R-TX) highlighted the unintended consequences that this bill could have — though intended to protect teens from online bullying, Gohmert said it could prompt prosecution of political opponents who had posted offensive things about him on a blog. There is no limiting language in the statute to prevent such a result. Gohmert said that while this would be satisfying, it would also be unconstitutional and among the reasons not to endorse the legislation.
"When All You Have Is A Hammer, Everything Begins to Look Like a Nail"
threedonia.com
September 28, 2009
There used to be a real division — expressed in the law as malum in se (acts that are evil or wrong) and malum prohibitum (things that are wrong because society prohibits them, but are not morally wrong necessarily — speeding for example) of acts that were worthy of felony punishment and acts that were worthy of fines, minor jail time, etc. That is no longer the case – and the implications for our liberty are scary. You commit three felonies a day. Congratulations!
"Three Felonies a Day? Say It Ain’t So, Fellow Citizens!"
The Wall Street Journal Law Blog
September 28, 2009
Some days, it seems that every other post we do touches on technology in some way. And often, in regard to technology and its rapid-fire pace of change, the law seems an exceptionally clumsy and awkward tool (see, e.g., the Lori Drew/MySpace Suicide case).
Former WSJ publisher and Yale law graduate Gordon Crovitz weighs in on this topic today in the WSJ. Crovitz’s topic: a new book, called “Three Felonies a Day,” written by Boston civil-liberties lawyer Harvey Silverglate. The thrust of Silverglate’s point: that the laws enacted to address technology are often hastily and sloppily drawn — and often can be applied to cover more than they were intended. Hence the title: Silverglate suspects that due to a glut of overly broad laws, the average American we commit three felonies a day.
"Homeland Security Says Laptop Border Searches Will Continue"
Taking Liberties Blog (CBS News)
August 28, 2009
When the U.S. Department of Homeland Security announced last summer that it could seize anyone’s laptop, mobile phone, or camera at the border to analyze them for an indefinite period, the criticism was immediate. Sen. Russ Feingold, a Democrat, called the move “alarming,” and the ACLU denounced it as “surrendering your Fourth Amendment rights at the border.”
[…]
This kind of open-ended scanning should worry anyone who travels internationally, not just privacy advocates. When we have laws like the No Electronic Theft Act, which makes sharing a sufficient number of MP3 files a federal crime, how many college students are unindicted felons? File this under the show-me-the-man-and-I’ll-show-you-the-crime department.
Harvey Silverglate, a criminal defense attorney in Boston and co-founder of the Foundation for Individual Rights in Education, has a forthcoming book on this point called Three Felonies A Day. “When a statute is so broad that it catches so much ordinary activity, it’s very problematic,” Silverglate told me in an interview for CBSNews.com this week.
"Channeling the Soviet Union: How U.S. Federal Criminal Law Has Reincarnated Beria"
LewRockwell.com
July 9, 2009
For the past seven years, I have written a number of articles about the growing power of federal prosecutors who are able to apply vague statutes to behavior that historically has not been illegal. Along the way, I have earned a number of enemies and detractors, and even some of my friends have been incredulous, especially when I questioned the conviction of Ken Lay.
One of my mentors in this legal and political journey has been the well-known and principled attorney, Harvey A. Silverglate, one of the founders of the Foundation for Individual Rights in Education or The FIRE, and a co-author of The Shadow University. Silverglate not only has tirelessly challenged one injustice after another, representing unpopular clients, but he also has tirelessly answered one email after another from me, as I sought legal guidance in making my own personal statements.
Finally, Harvey himself has come up with what I believe to be the authoritative book on federal criminal law, Three Felonies a Day: How the Feds Target the Innocent. If you want to understand the federal assault on the law and upon our rights, read this book, for it will provide an education for those who believe that federal prosecutors have long been overstepping their constitutional boundaries and are railroading thousands of innocent people into prison.
This is more, much more, than a book full of anecdotes, although the anecdotes themselves tell a depressingly familiar story of the decline of law in the United States. This book also lays out the chilling facts of how the federal system of what Candice E. Jackson and I have called "derivative crimes" is patterned not after anything that Americans inherited from Great Britain and its great body of common law, but from the former Soviet Union.
That is correct. Federal criminal law closely mirrors the Soviet code and its "crimes of analogy." Silverglate writes that under the old Soviet law, "any citizen was in constant danger of being prosecuted for virtually any action if it could be analogized to or derived from something in the criminal code" (emphasis his). As Lavrentiy Beria, Stalin’s head of the dreaded secret police said proudly, "Show me the man and I’ll find you the crime."