Criminal Justice

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.

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  1. "It appeared not to occur to him that legal clarity is actually meant to provide a roadmap for lawful conduct."

    Oh, I'm sure that vagueness is considered by the scumbag politicians and prosecutors to be a feature, not a bug.

  2. Have I committed 3 felonies today? I guess that depends on whether or not reading a felony, yet.

    1. For me, I think it depends on whether that girl was really as old as she said...

  3. The problem, recognized by several members of the Court, is that no one is exactly sure what that means.

    Then it should have no legal validity.

    With props to Bertrand Russell, "*Mathematics* may be defined as the subject in which we never know what we are talking about ...." (emphasis mine)

    Also, what Epi said.

  4. I killed a woman just to watch her die.

    Then I had sex with her corpse.

    Then I ripped the tag off a mattress.

    But no felonies that I'm aware of.

  5. I'm not a morning felon.

  6. Tearing a tag off the mattress isn't a felony if you're the consumer.

    But I never have figured out how one goes about consuming a mattress.

    1. "With many days of munching and snacking."

    2. It starts with creating those mysterious stains you'd rather not know about on hotel mattresses.

  7. I've committed at least six already, so some of y'all can take it easy this afternoon.

  8. "It appeared not to occur to him that legal clarity is actually meant to provide a roadmap for lawful conduct."

    But then how would government officials wield power? You know, real power?

    Which government official has the most power:

    Official 1: Here are the rules, clearly spelled out. Violators will be prosecuted.
    Official 2: I'm not going to tell you what the rules are, but if you violate them, you will be prosecuted. Proceed.*

    *In the course of my recent life I have had two agents of the state tell me exactly that in my dealing with the government and its regulations and rules.

    But hey, we're on the brink of legalizing marijuana! Teetering on the edge!

  9. I've been thinking about this recently: lawyers overwhelmingly get paid more than the average American, meaning their specialized services are more far more valued than others. However, they produce nothing, nor do they support others in their production. (Even do-nothing bankers provide funding and traders grant liquidity to markets). We have a legal code complex enough that someone who can navigate this convoluted system for other people is considered a rare resource, and no one seems to see this scenario as a symptom of a larger ill.

    I like the old Icelandic practice of having a lawspeaker who annually recites the laws in total. If he forgets a law and no one corrects him, then it's a law no more. Of course, having laws be able to decay, thus ensuring a more sensible set of laws, wouldn't serve any of the lawmakers -- most of whom are/were lawyers. I'm not terribly optimistic that this trend will reverse anytime soon.

    1. Bankers:
      1) Most banks aren't 'do-nothings' but work quite hard.
      2) Funding is a good and a service.

  10. Bob #2 - I'm a lawyer for a bank. What does that make me?

    (Besides one of the 140 million flunkers...I am reading this at work.)

    1. Nothing wrong with being a lawyer. That's the way our incentive system has been set up; capable, intelligent people will go where they'll best benefit. I was just whining about how it could certainly be argued that funneling competency away from scientific, cultural, and economic progress so that politicians can say that they DID something when an election rolls around might not be the best idea.

      1. Bankers don't serve all that different of a roll than a merchant who trades food stuffs. Funding is a consumable good and bankers connect those who have it with those who need it. Its a necessary roll in an economy without perfect information. If there was trully no need for bankers then there'd be no need for market mechanisms to determine where the means of production should go.

        1. "Role" not "Roll" - unless you meant a unit of bread that is smaller than a loaf.

    2. I now realize that I should have just written, "Don't hate the playa! Hate the game!"

  11. Good stuff, Bob #2. I'm co-opting most of your comments for my friend who recently told me only lawyers could be trusted to hold national office.

    She just passed the bar.

    1. Sorry, not "trusted". Only lawyers are competent to hold national office. ISYN.

  12. Jacob,

    Your Tuesday and Wednesday links go to the same page.

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