Tuesday, November 24, 2009

Three Felonies a Day

That's the title of a new book by Harvey Silverglate. The subtitle is "How the Feds Target the Innocent".

There's no question that overzealous and politically-motivated prosecution has destroyed the lives of many innocent people. One prominent example discussed by Silverglate is former Alabama governor Don Siegelman, whose conviction on corruption charges was almost certainly engineered by Karl Rove and the Bush White House.

Despite this, I was disappointed by the book. For one thing, the title - based on a claim that the average "busy professional" "likely commit[s] several federal crimes" each day, is simply not substantiated. The crimes discussed in this book are mostly things like overprescription of painkillers, flawed medical device manufacture, accounting fraud, etc., which are probably not the domain of the average "busy professional". For another, the focus on federal crimes leaves out some of the most egregious prosecutions, like those for copyright violation and teenagers recording their own sex acts.

But the main flaw is that I was not actually convinced by several of the cases discussed that the people charged were actually innocent or that the prosecutions were illegitimate. Some of the cases turn on strained readings of existing law, where the people involved should have known their actions were dubious. In two cases - the prosecution of Boston pols Kevin White and Thomas Finneran - Silverglate seems to suggest that influence peddling is just a normal part of city politics, and nothing to get worked up over. I don't agree. I want all politicians to keep their decisions squeaky clean and completely removed from their financial interests. They need to avoid even the appearance of conflict of interest.

So, while I agree with Silverglate's main thesis, I think some of the cases he chose were not the best examples of overzealous prosecution. Too bad - because this is an important topic that deserves a comprehensive treatment.


Frank said...

"... politically-motivated prosecution has destroyed the lives of many innocent people. One prominent example ... is ... Don Siegelman, whose conviction on corruption charges was almost certainly engineered by Karl Rove and the Bush White House."

Are you leaving the possibility open that Seigelman was indeed guilty of some of the charges? I'm just saying that the expression "almost certainly engineered" should mean that Siegelman was "almost certainly innocent" instead of just "innocent."

MZ said...

I was recently incarcerated for 5 months for some legal issues of my own (federal charges), and I learned a lot about the federal criminal system. The biggest problem is these "conspiracy" charges (which I got myself), where they don't have to catch you doing anything. As long as they have more than one witness willing to testify, they can prosecute you for crimes that they never caught you doing.

What sullies the process is that most federal offenders are looking at long sentences compared to state offenders, which increases the motivation to "cooperate" and testify against anybody to get a reduced sentence. I would say that over half the people in my unit were rats, and a lot of these people, young black men from the hood, can say anything about another young black man from the same hood, and the feds will prosecute them on conspiracy to distribute X, or conspiracy to do Y. The feds don't care about the accused. Further, prosecutors are expected to be efficient. They aren't supposed to bring frivolous charges against people that end up being dropped, so if you do beat your charges, they're likely to bring up something, anything, against you until you're convicted.

I was incarcerated with one guy who was being offered a plea agreement for 11-14 years for crack distribution and they never caught him with a milligram of any drug. It's insane.

Jeffrey Shallit said...


Sorry to hear about your experience. I agree entirely that "conspiracy" charges are dangerous and overused. I have no doubt that many innocent people are forced to do time because of this.

Jeffrey Shallit said...


Yes, I think it's possible that Siegelman was indeed guilty of some of the charges. But there is no doubt at all that his sentence and treatment were disproportionate.

Alex said...

If the evidence for it is so poor, I think you need to rethink your agreement with "Silverglate's main thesis".

Granted, I agree that we have way too many laws. I think the legal code needs to be simplified, so that only the acts which cause real harm are criminalized. On the other hand, neither I nor any of the people I know have ever been prosecuted for a crime which isn't actually harmful. Moreover, on the few occasions when, as a consequence of youthful indiscretion I was caught doing things which truly were harmful, the legal system always gave me the benefit of the doubt and treated me in an eminently fair manner. As such, I have to vehemently disagree with Silerglates thesis. Yes, the criminal code is open to abuse, but I've yet to see an example of it being used in such a fashion.