Harvey Silverglate, a Boston-based criminal defense and civil liberties attorney, is the co-founder of the Foundation for Individual Rights in Education, which fights speech codes on college campuses. He is also the author, most recently, of Three Felonies a Day: How the Feds Target the Innocent (Encounter Books), a book about "how the United States Department of Justice targets all segments of civil society by means of abusive prosecutions based upon unacceptably vague federal criminal statutes and regulations."
Senior Editor Katherine Mangu-Ward spoke with Silverglate in November.
Q: When did you notice that people were committing crimes without knowing it?
A: Starting in the mid-1980s, I noticed in my federal criminal cases that people who were being indicted would ask, "What the hell did I do to get myself indicted?" We would read the indictment, and neither I nor my law partners could figure out why the feds considered what this person did to be a crime. We weren't contesting that the client did what he was charged with, but we couldn't figure out when what he did had become a federal crime.
This is the same period of time when I started keeping track of what I later realized was a related phenomenon. In universities in the mid-1980s, students were being charged under these incredibly vague speech and harassment codes on campuses when the student was engaging in what the student—and I—considered to be normal college-age behavior: saying things that were provocative, sometimes kind of sharp, sometimes insulting.
I can't help but think that they're related, that they have something to do with a decreasing emphasis on language with real meaning, that there is a kind of corruption of the English language that enables these kinds of codes and federal statutes to wreak havoc in the lives of people who would not normally be on notice that they're doing something that can get them thrown out of school or into federal prison.
Q: Can you trace the history of this problem?
A: If this problem existed before, I never noticed it in reading old federal cases. The invitation to do this really arose during the Depression legislation of the '30s. All of a sudden the administrative apparatus of the federal government was ramped up. Administrators were given a lot of authority to decide when to go after somebody and when not to. The statutes were fairly vague, and a gloss was supposed to be put on them by administrative agencies.
Q: I've been surprised that there hasn't been more of a push to go after the people responsible for the recent financial crisis in the courts.
A: There is. It's just taking a while. There is going to be a tsunami of indictments in the mortgage lending area, in the investment banking area, you name it. There are going to be insider trading cases. It's already started. There are going to be prosecutions for the heads of investment banks and other institutions [based on their responses] to questions at press conferences and annual meetings and conference calls with the financial press. There are going to be indictments against CEOs and other corporate officers for being unduly optimistic in answering questions about liquidity and so forth just as the economic collapse was beginning to grip.
Q: But what those people did wasn't criminal. It was just stupid, right?
A: Correct. They are going to criminalize it— retroactively, of course, because, after all, nobody in the government saw what was coming. They expect a level of acuity on the part of bank presidents that no one in the Department of the Treasury had. Their theory is that being overly optimistic misled investors. But there is going to be a raft of government prosecutions where they call this fraud. I have no doubt about that.