Customer Reviews

Three Felonies a Day: How the Feds Target the Innocent

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This is a very thoughtful and vigorously argued book about the injustices that arise when prosecutors seek to expand the reach of federal criminal statutes beyond their proper field of application. The author has litigated many of the cases he discusses, and is able to translate the complexities of that experience intelligently and without condescension, but also without all of the unnecessary technical details that lawyers writing for a general audience sometimes get bogged down in. Harvey Silverglate is an institution in his own right: a tireless advocate for civil liberties, prolific writer, and astute student of the law, there are few people who have a stronger commitment to illuminating the practical workings of the criminal justice system and their relationship to broader currents in the law. This is a must-read for those interested in criminal law, civil liberties, and the recent history of the Department of Justice, by a writer who has the courage of his convictions and voices them powerfully and well.

Harvey Silverglate does an extraordinary job analyzing the erosion of rights and the risks it carries to liberty in America in his book, Three Felonies a Day, How the Feds Target the Innocent.

This book is a must read for anyone who cares about the preservation of liberty and putting a check on the encroachment of the federal government in the every day lives of citizens.

He shows how the Department of Justice has led a steady march to expand their reach into the lives of ordinary Americans. The result? Panoply of laws giving them the right to prosecute just about anyone for anything at will.

Their broad application of the Deprivation of Honest Services Statutes in White Collar Crime and a host of other legal gymnastics give them a club every bit as powerful as the Soviet Union at the height of its power. In the Soviet Union and other dictatorships the tools of federalization of all crimes and trampling liberties usually reside in what is commonly called "Defamation Statutes."

Mr. Silverglate identifies numerous laws and Department of Justice interpretations and applications that give them authority rivaling the Soviet Union in its heyday. This boils down to a scandalous use of the federal instruments of powers residing in the executive branch at the Department of Justice that go unchecked.

For anyone who cares about liberty I recommend this book. It is makes a powerful contribution to the cause of justice and freedom and ranks as a modern day call to action equal to Thomas Paine's pamphlet, Common Sense published in 1776.

Mr. Siverglate brings current day threats to our liberties into focus just as Mr. Paine brought the need for the American Revolution into focus in 1776. For Mr. Paine liberty and freedom's enemy resided in King George of England; to Mr. Silverglate it can be found in a runaway Department of Justice intent on expanding its power to intrude and reach into the life of every American.

This book was recommended by a Federal Judge at a conference on ethics. It is a scary, insightful indictment of criminal prosecutions and the growing trend of prosecutors and judges encroaching on the legislative branch's power to enact laws through manipulation and overreaching interpretations of vague federal laws. It is not only a MUST read, but it is a MUST act upon as well. Kudos Silverglate!

The premise is, because of increasingly vague and over-reaching federal statutes, any one of us is committing an average of three felonies a day without even realizing it. In other words, the Feds can pretty much choose their targets FIRST (for whatever reason... vengeance, political gain, to pressure you to testify against a "bigger fish," monetary gain or simply to advance their own careers) and figure out what to indict you on later.

Even if you haven't committed a crime, by the time the DOJ is finished freezing your assets (so you can't afford adequate defense), harass your friends and family (to get them to turn on you... and even threaten them with their own indictments), feed false information to the media and ruin your reputation, career, social life, etc., you're going to want to plea bargain... no matter how innocent you are.

The product description of this book on amazon.com (the US site) starts by claiming that "The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day". So I was keen to find out what crimes these might be, that ordinary people were unconsciously committing in such profusion. Sadly, that is something you cannot learn by reading this book. As far as I can ascertain, there is literally no mention of "three crimes a day" or anything similar on any of its pages, from the foreword by Alan M Dershowitz to the index. The quotes published on the book's jacket are much more accurate: "Now comes veteran defense lawyer and civil libertarian Harvey A. Silverglate... exposing... a pattern of serious abuses and convictions of innocent people in some of the most famous (as well as obscure) federal cases of recent decades"... "...Silverglate has written a work peerless in revelations about the mad expansion of federal statutes whose result is to define, as criminal, practices no rational citizen would have viewed as illegal..."..."...federal prosecutors have conceived of something truly frightening - punishment without crime..."

Although the book is bound to disappoint anyone looking for a lurid expose of how no decent citizen is safe from the US justice system, it is a valuable and well-written critique of some recent trends in that system. In particular, Silverglate calls attention to Congress' habit of drafting and approving vague laws that can be interpreted in a wide variety of ways depending on the beliefs and attitudes of prosecutors, judges, and juries. He also denounces the growing tendency of prosecutors to intimidate defendants by a combination of vague charges and the threat of truly savage sentences, inducing them to plea bargain - being assured of a definite, relatively light sentence instead of a potentially crushing one. In return, the defendants are forced to testify against other, more important defendants, and so on indefinitely. It is well-known that 90% of criminal cases in the USA are already settled by plea bargain rather than by jury trial. The trouble is that there are so many laws, some of whose provisions are so vague and potentially all-encompassing, that prosecutors can threaten defendants by bringing forward lengthy indictments and calling for commensurately draconian sentences. Unsure of the outcome of a trial, the defendant usually agrees to "full cooperation" and thus becomes part of the prosecution team in its case against the next defendant. As an example of how easy it is to fall foul of federal laws, the author explains that Martha Stewart was imprisoned for five months, not for insider trading as commonly thought, but for making false statements to federal authorities and "a host of other obstruction crimes". In fact, she was never guilty of insider trading, as what she did was perfectly legal. Unfortunately for her, she was unsure of her ground, and so chose to lie to investigators. So she was imprisoned for that!

The Stewart case is a good example of another trend that Silverglate deplores: prosecutors who pick a famous individual or organization and devise plans to "take them down" by whatever means available, rather than (as they should) starting with a crime and prosecuting those who committed it. As chapter followed chapter, I began to feel revulsion for the prosecutors - and also many of their victims, who were often prominent business people and politicians. In a typical case, an ambitious attorney general who wishes to boost his own political career (or that of some associate) sets his sights on a well-known politician and decides to bring him down in any way he can. To do so, he takes advantage of deliberately woolly laws enacted by Congress, popular prejudice against the rich and successful, and general paranoia about crime, dishonesty or even terrorism. After methodical planning, some "small fry" are arrested and threatened with a towering wave of criminal charges. Some of them plea bargain, and are then recruited to give evidence against the next layer - typically their bosses. And so it goes, until the prosecutorial inquisition reaches the person at the top - the mayor, CEO, governor, or whoever it might be. (Admittedly, this approach is sometimes justified: it was just thus that the case against President Richard Nixon was built). First I found myself imagining some tropical ocean scene, with sharks, barracuda, killer whales, giant squid and other carnivorous monsters circling viciously, tearing at one another until the water fills with blood. Later, I saw parallels with the Spanish Inquisition - in which informers made a good living out of denouncing harmless victims, who were tortured until they denounced others, who were then tortured... with the state and the informers dividing the rich proceeds.

Starting with an Introduction in which he sets the scene, Silverglate moves on to chapter 1 which deals with the prosecutions of four prominent local politicians: Raul Martinez, mayor of Hialeah in Florida; Kevin White, mayor of Boston; Alabama Governor Don Siegelman; and former Massachusetts House of Representatives Speaker Thomas Finneran. In passing, he mentions that between 2001 and 2007 the Department of Justice (DoJ) opened investigations into seven times more Democratic public officials than Republicans. The odds of this happening by random chance are less than 1 in 10,000. Chapter 2 deals with the delicate issue of regulating the prescription of narcotic drugs by doctors. As part of the federal "war on drugs", the Drug Enforcement Agency (DEA) has acquired a frightening array of legal powers, which have deterred doctors from prescribing adequate pain-killing medication to the dying, sufferers from cancer, and others who need them. Silverglate outlines the case of Dr Hurwitz, who was imprisoned for 57 months because some of his patients had lied to him to obtain more narcotics than they really needed. Among other things, he notes that fewer than half of those suffering frequent pain get enough relief after seeing a doctor - and that as many as 16,500 Americans bleed to death each year because they have been forced to resort to anti-inflammatory drugs instead of narcotics. Chapter 3 turns to the pursuit of companies marketing medical devices and drugs, pointing out the impossibility of getting a jury (and sometimes, even a judge) to understand the impenetrable thicket of regulations imposed by the Food And Drug Administration (FDA). Corporations usually do whatever prosecutors ask of them - including pleading guilty to any and all charges - because the FDA can debar them from doing business, effectively destroying them.

In chapter 4 Silverglate moves into more contentious territory, tenaciously defending the disgraced financial wizard Michael Milken whose income soared to over $500 million a year in 1987. Contrary to popular opinion (shaped by mass media happy to follow the government line), he maintains that Milken did nothing illegal - although his meteoric success and unorthodox methods upset many establishment figures. The lead prosecutor in this case was Rudy Giuliani who - on the back of this and other famous cases - later became mayor of New York. Although Milken agreed to plead guilty to six felony counts and pay $600 million - to protect his brother Lowell, according to Silverglate - University of Chicago Law Dean Daniel Fischel later determined that all of the six counts to which Milken pleaded guilty "described perfectly lawful transactions"! Chapter 4 also details the prosecutions of CSFB employees, Martha Stewart, and Enron employees such as Kenneth Lay and Jeffrey Skilling. While admitting that Enron grossly exaggerated its financial health and prospects, Silverglate alleges that the specific charges brought against it did not hold water, and that the information it supposedly kept secret had in fact been openly published. In chapter 5, he shows how the technique of "starting at the bottom" by inducing junior employees to plea bargain was extended to the corporate level - for instance, how the case against Enron was developed by forcing its auditor Arthur Andersen to cop a "corporate plea bargain" that brought it solidly into the prosecuting camp (and wiped it out as a business entity). Remarkably, it turns out that auditing and accountancy firms can easily be brought to heel by the DoJ, as merely being indicted in a criminal case would be enough to put them permanently out of business.

Chapter 6 recounts how the DoJ took on the American Bar Association (ABA) - the biggest lawyers' organization in the USA, with over 400,000 members. As an appetizer, Silverglate describes the unenviable dilemma of attorney Philip Russell, who found that the local church (a legal client of his) owned a laptop on which one of its employees had stored child pornography. Such "contraband" is always illegal to possess, and there is no defence. Yet Russell could not turn the laptop in to police without betraying the confidence he owed to his client, the church - which in any case had done nothing wrong. So Russell destroyed the laptop. Unfortunately for him, the feds were already on the case and successfully prosecuted him for destroying evidence! Chapter 7 finally gets round to tackling the legal predicament of the media, which - especially since 2001 - has risked being accused of espionage or the like if it publishes material embarrassing to the authorities. And chapter 8 is memorably entitled "National Security: Protecting the Nation from Merchants, Artists, Profesors, Students and Lobbyists for Non-Profits?"

In his Conclusion, Silverglate makes some uncontroversial and reasonable suggestions. He begins in ringing tones: "Creativity and inventiveness are honored and valued in many areas of life. Crafting innovative legal theories to ground criminal prosecutions should not be one of them". He insists that the law should be clear and easily understood, and that citizens should always be able to know whether a given act is legal or illegal so that they can be sure of staying on the right side of the law at all times. What Congress may have intended is quite immaterial: the letter of the law should be what counts. For "...all the procedural rights in the world," he notes, "are for nought if the defendant is unable to understand what it is for which he or she stands indicted".

Every judge should read this book as well as all the members of congress!! We are at a critical point in the history of this country in regards to legislating laws on the federal level. We cannot go on like this or we will destroy the very basic meaning of the constitution as it applies to individuals. Laws are not meant to be prosecutor friendly and innocent people are at risk for the betterment of the prosecutors in this country of ours. Better that a guilty person goes free then thousands of innocent Americans succumb to the whims of the prosecutors making a name for themselves. No one can afford to defend themselves under such a system. The Congress is guilty of failing to understand what they vote on and what authority they give to the executive branch of government. READ the book! It is written in black and white!!! The legislation is not only not clear it is vAgue and discretionary and applicable to innocent Americans and especially congress persons.

As the fine American author & scholar reiterates in his analysis the American system of investigation is unique in the world. We have politicized the role of prosecutor, not only at the federal level but all of our states and counties as well. Nowhere else are prosecutors (or judges) elected. Indeed, it is unthinklable in most parts of the world to have prosecutors run for office, make campaign promises & solicit contributions. Prosecutors in other countries are civil servants.
He also establishes a clarion point that our society should punish only those who intentially, rather than inadvertantly violate the law. To confict someone of a crime, there must be an evil-meaning mind w/an evil-doing hand. The author also establishes a point of demarcation in 1812 when the Supreme Court(aka Supreme Denial) ruled in a bribery case that Federal crimes were entirely creatures of congressional statute and not successors to English common law. Hence forth, common sense went out the door and down the rabbitt hole. With increasingly alarming consequences Congress demonstrated a growing dysfunction in crafting leglislation that could pass through both bipartisan brickwalls of both houses yet still pass the muster of being the distinct precise laws needed to grease the gears of an intricate justice system in today's world. The root of this evil became exponential; however, when the national security state became too DEEPly rooted in our government(read Bomb Power by Gary Wills). Insistence on requiring proof of criminal intent to commit a crime took a back seat to the belief that, if a nation is to be kept safe in an increasingly dangerous world(the irony now begins swimming in a molasses), law violaters must not be allowed to slip from the state's net(Daniel Ellsberg), even when the laws' prohibitions could not be understood.
The American Judicial System is being geared up as a disposal system which is not to be judged by its fairness, but rather its ability to dispose garbage quickly & inexpensively.
It is said of one particular Roman tyrant, that he placed the text of his law so high above the citizens heads, that they could not read it. That is the way of tyranny - not law. And with the recent Supreme Court's(Supreme Denial) decision of Citizens United(supreme irony) its Alice In Wonderland time(Off with their...)
The author cites many large and small cases, well-known & unknown, including an innocent Michael Milken!(could have beat the rap, but he couldn't let his brother Lowell take the fall).
Pull up a chair my friend and see what course the captain's set. Perhaps we can get a crew together, and with any luck, and some favorable changings winds, we can set a new course for a safe harbor, where we can rerig this ship of state, from her mercenary owners, back to the rightfull heirs...the people.

Highly Recommended !!!!!!!

P.S. Remember, nobody ever went to a ballgame to see the umpire.
- Commissioner of baseball, Cheif Justice Roberts

If you never knew someone who was wrongly indicted and wrongly prosecuted, and insulated yourself from the news of innocent people whose convictions finally were reversed, this book will be upsetting, disturbing, and frightening.

It's a lesson to those who prefer to "blame the victim" so as to believe it will never happen to them if they stop at every stop sign, overpay their taxes, etc.

Read this to realize it will take us, the ordinary folk who manage to escape the rabid prosecutors, to clean up a judicial system gone awry.

And find, online, some of the legal scholars' essays about prosecutorial misconduct and how prosecutors have been given more power than judges. Bennett L. Gershman of Pace U. School of Law has been warning about this for more than a dozen years.

With such a provocative title, I expected a thorough list of ways that ordinary citizens can be unwittingly trapped by federal law. Maybe a handful of frightening anecdotes, maybe some telling historical analysis.

Instead, after two lengthy introductions, I find a dense chapter defending ... a Florida politician accused of corruption. And a Massachusetts governor. And a Massachusetts House speaker. When I got to the chapter defending Michael Milken I started skimming instead of reading.

Don't get me wrong: if those people were railroaded, then they deserved better. But those aren't the sort of stories that excite people's sympathy. I'd much rather hear about innocent doctors getting tried for prescribing legal painkillers (which Silverglate does address, albeit later), or citizens being sent away for behavior that nobody knew was illegal. When Silverglate writes about one politician going after another, my blood doesn't exactly boil at the injustice being done.

Silverglate writes with a didactic, passionate style. It's likely to inflame the hearts of people who already care about civil liberties. But for people who don't see expanding federal power as that big of a deal, a sob story about how Ken Lay was strung up won't elicit any sympathy.

All of the above would make the book 4 stars. I'm giving it 3 stars because it's a substandard Kindle edition. There's no table of contents. The footnotes don't hyperlink to the end of the text (a feature in every other footnoted book I've read on Kindle). And for a book that's been out nearly a year, it's still far too expensive.

In this work, veteran civil liberties litigator Harvey Silverglate (co-founder of FIRE, veteran of the ACLU and EFF) takes us on a tour of politically motivated prosecutions. From hopeless anti-corruption laws and prosecutions of politicians to prosecutions of folks like Arthur Anderson in the wake of the Enron fiasco, he does a very good job of describing the issues and why Americans should be concerned.

One note on the honest services fraud section. This year, the Supreme Court narrowed the interpretation of honest services fraud to schemes of bribery and kickbacks. This goes a long way to rectifying the issues with this statute which are described in this book. Other issues remain, however.

On the whole this book tells the tale of prosecutors who will stretch the law to the breaking point when fame beacons. I highly recommend it to all Americans.