Have You Committed Your Three Felonies Today?

This week The Volokh Conspiracy is running a five-part series in which civil liberties lawyer (and Reason contributor) Harvey Silverglate explores themes from his new book Three Felonies a Day: How the Feds Target the Innocent (Encounter Books). Silverglate's timely thesis is that ambitious prosecutors use vague federal statutes to criminalize a wide range of conduct by people who do not realize they are doing anything illegal, a situation that undermines the principle of fair notice, which is crucial to the rule of law. On Monday he opened with the recently argued Supreme Court case involving "honest services fraud," defined as "a scheme or artifice to deprive another of the intangible right of honest services." The problem, recognized by several members of the Court, is that no one is exactly sure what that means. "There are 150 million workers in the United States," Justice Stephen Breyer told Deputy Solicitor General Michael R. Dreeben, who was trying to answer that question during the oral arguments. "I think possibly 140 [million] of them would flunk your test."

Yesterday Silverglate discussed vague anti-terrorism provisions such as the one that was use to prosecute University of Idaho graduate student Sami Omar Al-Hussayen (who was ultimately acquitted) for helping charitable organizations maintain websites that included links leading to anti-American invective. Today Silverglate considers the unclear contours of laws aimed at financial fraud. Back in 1988, he recalls, Rep. John Dingell (D-Mich.), then chairman of the House Commerce Committee, said he didn't want to clearly define "insider trading," a concept that today seems fuzzier than ever, because doing so would give criminals a "roadmap for fraud." Silverglate observes, "It appeared not to occur to him that legal clarity is actually meant to provide a roadmap for lawful conduct."

Look for an interview with Silverglate (who will have new installments at The Volokh Conspiracy on Thursday and Friday) in the February issue of Reason. I noted the honest services fraud case in October and discussed the Al-Hassayen case in a 2004 column. Reason coverage of insider trading here. William Anderson and Candice Jackson highlighted the hazards of sweeping federal criminal statutes in the April 2004 issue of Reason.