Harvey A. Silverglate’s book Three Felonies a Day: How the Feds Target the Innocent is a very important book that should be widely read and promoted. It is not an easy to book to read; the contents are infuriating and depressing. Ignoring a problem, however, will not make it go away. In the immortal words of Francis Bacon: “Knowledge is power.” Silverglate’s book will arm you with ample knowledge of the U.S. Federal Government’s arbitrary and capricious abuse of power.
Below I offer an overview of the book as well as a number of quotes from it so that you can get a taste of what it has to offer; I hope my review inspires you to purchase a copy.
In the foreword Alan Dershowitz writes, “An expression common when our Constitution was ratified was that a criminal statute had to be so clear that it could be understood when read by a person ‘while running.’ Today’s federal statutes do not come close to satisfying that criterion.” (p. XXVIII)
In his introduction Silverglate writes: “[I]t is only a slight exaggeration to say that the average busy professional in this country wakes up in the morning, goes to work, comes home, takes care of personal and family obligations, and then goes to sleep, unaware that he or she likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have become not only exceedingly numerous [. . .] and broad, but also [. . .] impossibly vague.
. . . A study by the Federalist Society reported that, by the year 2007, the U.S. Code (listing all statutes enacted by Congress) contained more than 4,450 criminal offenses, up from 3,000 in 1980. Even this figure understates the challenge facing honest, law-abiding citizens. Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations that implement many congressional statutes. This has spawned thousands of additional pages of text that carry the same force as congressionally enacted statutes. The volume of federal crimes in recent decades has exploded well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of often vague and exceedingly complex and technical prohibitions, one degree removed from congressional authority, on which to hang their hapless targets.
This development may sound esoteric to some—until they find themselves at the wrong end of an FBI investigation into, or indictment for, practices they deem perfectly acceptable. It is then that citizens begin to understand the danger posed to civil liberties when our normal daily activities expose us to potential prosecution at the whim of a government official.
. . . No field of work nor social class is safe from this troubling form of executive branch overreaching and social control, and nothing less than the integrity of our constitutional democracy hangs in the balance. After all, when every citizen is vulnerable to prosecution and prison, then there is no effective counterweight to reign in government overreaching in every sphere. The hallowed notion of ‘a government of laws’ becomes a cruel and cynical joke.” (p. XXXVI-XXXVII)
On this same note in his concluding chapter, Silverglate writes: “Our Constitution includes a substantial number of procedural rights that guarantee a fair trial: representation by legal counsel, trial by jury, trial before an independent judiciary, and the right of a defendant not to self-incriminate. But all the procedural rights in the world are for naught if the defendant is unable to understand what it is for which he or she stands indicted.” (p. 257)
Each chapter centers around a particular group being targeted: 1. politicians 2. physicians 3. medical and pharmaceutical companies and their employees 4. individuals and companies in the financial industry 5. accounting firms 6. lawyers 7. the news media 8. a wide range of different people prosecuted in the name of “national security.”
In his introduction Silverglate shares the following anecdote from Tim Wu’s 2007 article “American Lawbreaking” that was published in Slate:
“At the federal prosecutor’s office in the southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity—say, Mother Theresa or John Lennon. It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you'd see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like ‘false statements’ (a felony, up to five years), ‘obstructing the mails’ (five years), or ‘false pretenses on the high seas’ (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The result, however, was inevitable: ‘prison time,’ as one former prosecutor told me.” (p. L)
Unfortunately, as the rest of Silverglate’s book exhaustively demonstrates, that creative approach to indicting someone isn’t restricted to a parlor game. Here’s one example:
“The intense pressure exerted by federal prosecutors was tragically illustrated in the case of Dr. Peter Gleason. When the first edition of this book went to press, Dr. Gleason, a psychiatrist who specialized in pain and sleep-related disorders, found his resources exhausted by an indictment for recommending the drug Xyrem to other physicians for uses not officially approved by the Food and Drug Administration, a practice which the law seemingly allowed. Through a bizarre application of federal conspiracy law, Gleason was nonetheless charged and mercilessly hounded. When he persisted in defending himself, the government agreed to reduce the charge to a misdemeanor, thereby conceding that Gleason had not intended to defraud or deceive anyone. Gleason pleaded guilty, and in January 2010 he was sentenced to a $25 fine and one year of probation. In the civil arena, however, the government continued to pursue him. Effectively unable to practice medicine, and deprived of the total vindication for which he yearned and which he deserved, Gleason buckled under the accumulating burden. On February 7, 2011, he hanged himself. His sister, Sally Goodson, succinctly and accurately summed up his ‘crime’ in a remembrance of her beloved brother: ‘Truthful speech to fellow physicians about the off-label use of an FDA-approved drug.’" (p. XIII)
Many innocent people plead guilty because of the extreme pressure placed on them: they face a stiffer sentence if they go to trial and lose; defending themselves in court can be expensive, time-consuming, and psychologically draining; also, the government will sometimes freeze a defendant’s assets leaving the defendant virtually unable to defend themselves. Silverglate writes, “In 2004, for instance, 90 percent of all criminal defendants brought before U.S. district courts were convicted, with 96 percent of those convictions resulting from guilty pleas. In other words, federal prosecutors operate in a justice system where even a trial is a rare luxury for most defendants.” (p. 66)
The intense pressure to plead guilty even when innocent isn’t limited to individuals; it also applies to corporations. In his chapter on medical companies Silverglate writes, “By refusing to defend itself, USCI also averted a penalty that is the equivalent of capital punishment for a company in the health care industry—a ‘debarment’ order disqualifying the company from selling its products to government-funded health programs and institutions. Because virtually all health programs and institutions involve some federal funds, either through the Medicare and Medicaid programs or others, no medical device manufacturer can survive if debarred.” (p. 80)
One concerning fact that Silverglate notes in his chapter on the DOJ’s assault on politicians is how politically motivated the DOJ can be: “The preliminary results of a study by Professors Donald C.
Shields and John F. Cragan found that between 2001 and 2007 the DOJ opened investigations into seven times more Democratic public officials than Republican. The professors concluded that the odds of this discrepancy being a random occurrence were one in ten thousand. Indeed, a July 2008 report detailed how decision-making in the Bush administration's DOJ was wrought with political bias.” (p. 28)
Another disturbing fact is that the prosecution (unlike the defense) is essentially allowed to bribe witnesses: “There has been precious little legislative and judicial analysis of the expanded use of destructive coercive practices for ‘turning’ prosecution witnesses, which may involve immunity for loved ones, cash stipends, new identities not encumbered by a criminal record, and other powerful inducements in exchange for ‘composing’ to nail former associates.” (p. XLV)
In chapter four, Silverglate discusses the government’s prosecution of Martha Stewart. If you are like most people, you think that she was charged with insider trading. That’s incorrect. She was charged under the federal false statement statute (as well as some other charges). Silverglate writes, “One of the oddest features of federal criminal law is that, while it is the felony of perjury to lie when under oath, it is likewise a felony to lie even when not under oath. It is the counterintuitive nature of the federal false statement statute that makes it such an effective snare for the unwary citizen. Observers of the federal criminal justice system are often suspicious that investigators are all too ready to give their targets plenty of opportunity to lie, even when the underlying conduct being investigated is likely not criminal at all. (Nor is it entirely irrelevant to note that there are no similar restrictions on the ability of government officials to lie to citizens with impunity.)” (p. 117)
Stewart selling her shares of ImClone did not constitute insider trading since she did not have any fiduciary obligations to ImClone, but since she wasn’t 100% honest with federal investigators, she was prosecuted nonetheless. Silverglate goes on to write: “[T]he fact is that a potential obstruction or false statement charge can almost always be teased out of an agent's interview of an individual. Even if the feds cannot put their finger precisely on a statement that the interviewee made that is demonstrably false, they may always rely on the obverse side of the coin and allege that there is something that the target omitted that, in the context of the full investigation, was intended to mislead the authorities. Since the citizen is damned by what he or she says, or even fails to say, it is very hard to envision a citizen's encounter with a fed that cannot be the basis for such a prosecution.” (p. 120)
As a group, lawyers are not well-loved by the general public. In his chapter covering the federal assault on lawyers, Silverglate makes a great point: “[T]he independent bar has been a bulwark against government overreaching and official repression since before the founding of the republic. (Virtually every American schoolchild knows the story of John Adams's defense of the British redcoats in the Boston Massacre.) America's lawyers, as a profession, are more directly involved in opposing certain governmental goals than perhaps any other group. And when government overreaches in any arena controlled by law, it is frequently the lawyers who show up at the frontlines. The same may be said for opposition to governmental attempts to over-regulate an industry. So a prosecutorial assault on lawyers who are, essentially, just doing their jobs, is a matter that should be of particular concern in a free society.” (p. 160-1)
Lastly, I want to offer two compelling quotes from Silverglate’s concluding chapter:
“[O]ne of the most pernicious effects of the Justice Department's techniques—too often given warrant by the courts—is that they wreck important and socially beneficial relationships within civil society. Family members have been pitted against one another. Friends have been coerced into testifying against friends even when the testimony has been less than honest. Corporations have turned against employees and former partners to save the companies from obliteration, following scripts entirely at odds with the truth and subject to the sole approval of federal prosecutors. Newspaper reporters have been pitted against confidential sources. Artists, including those critical of the government, have been subjected to Kafkaesque harassment. Lawyers and clients have found themselves adversaries, as have physicians and patients, where enormous pressure has been placed on the ill to turn against those in whose capable professional hands they placed themselves in search of treatment. No society can possibly benefit from having its government so recklessly attack and render asunder such vital social and professional relationships.” (p. 265)
“[W]hen it comes to protecting the constitutional right to be free from prosecution under vague statutes that the average citizen cannot understand, all sectors of civil society have a stake in vindicating that interest. Filing friend-of-the-court briefs, lobbying for legislative or regulatory change, writing newspaper op-ed columns or letters to the editor, and other such advocacy should not be limited to supporting only one's self and one's own kind. Rather, such activities should be directed toward supporting the legal principles that protect us all. Americans need a new sense of the nature of true community, a common interest in protecting the rights even of those toward whom we might have no keen identification nor special affection.
The battle to restore proper balance between the power of federal prosecutors and civil society cannot be fought along lines separating liberals from conservatives, law-and-order advocates from libertarians, populists from industry leaders, reporters from moguls, or any of the other categories into which our increasingly fractious society sorts us. In this arena, the divide between self-interest and the interest of others disappears. When the feds appear on the scene, claiming to represent the public interest by going after some citizen who had no reasonable way of knowing that his or her conduct could be deemed a felony, do not ask for whom the bell tolls. It tolls for all.” (p.274-5)
I hope my brief overview of this book has whetted your appetite to pick up a copy and dive into the full, nitty-gritty details of the numerous cases that Silverglate carefully examines.
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Bought this book New, but it came without the book jacket pictured. It also has a 'thriftBooks' sticker on the spine, suggesting it is not a new book - but a used one. All the pages seem to be there, without markings or scribbles, so two stars were given. The feeling of betrayal has not yet subsided.
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