When Everything Is a Crime: Harvey Silverglate on the Overregulation of Ordinary Life
"That's what causes change: the people in power begin to get hurt by their own system."
Few people understand the price of overregulation like Harvey Silverglate. Over his long career as an attorney and journalist, Silverglate has seen a rising bureaucratic class enact hundreds of thousands of federal regulations and vaguely-worded statutes. The result has been the criminalization of everyday life. From university campuses to corporate boardrooms, ever more citizens are facing severe punishments for behavior that was once considered harmless.
Silverglate himself has been repeatedly pursued by the FBI, only to see the investigations come to nothing.
But the longtime civil libertarian is optimistic for change. Now that the regulatory state has grown so complex that powerful people are getting tripped up in their own rules, Silverglate thinks reform is possible. Regarding the trial of former Virginia Gov. Bob McDonnell for the vague charge of honest services fraud, he said: "People who wouldn't agree on what day of the week this is, agreed that the Department of Justice was becoming almost a terrorist organization with respect to state, local, and even federal public officials. That's what causes change: the people in power begin to get hurt by their own system."
Silverglate is the co-founder of The Foundation for Individual Rights in Education (FIRE), the author of Three Felonies a Day: How the Feds Target the Innocent and co-author of The Shadow University: The Betrayal Of Liberty On America's Campuses. He spoke with Reason TV from his Boston office.
Runs 42 minutes.
Produced by Todd Krainin. Interview by Nick Gillespie. Cameras by Meredith Bragg and Jim Epstein.
TABLE OF CONTENTS
0:42—What is overcriminalization?
4:37—Why do we need mens rea reform?
7:06—How did we get all these regulations and bureaucrats?
11:11—How can we get out of this mess?
12:50—Speech codes, kangaroo courts, and the overregulation of our universities.
17:28—The changing student population and the end of in loco parentis.
23:26—Herbert Marcuse and his "wacko theory" of differential rights.
27:07—Is freedom of speech moving forwards or backwards in society?
30:25—How the F.B.I. came after Silverglate.
34:00—Silverglate discusses his background and influences.
38:44—Silverglate's upcoming book and movie.
This is a rush transcript. Check any quotations against video recording.
NG: Hi, I'm Nick Gillespie with Reason TV and today we're talking with Harvey Silverglate. He's the co-author of The Shadow University. He wrote a great book called Three Felonies a Day. He's a co-founder of the Foundation for the Individual Rights in Education and a great civil libertarian. Harvey, thanks for talking to us.
Harvey Silverglate: It's my pleasure. This is going to be interesting.
NG: You have written a lot about over-criminalization in American life. What is over-criminalization and what are the egregious forms that it takes?
Harvey Silverglate: There are two allied concepts. There's over-criminalization—too many things have been made into crimes, but then there is a kind of a vicious relative and this is statues that are so vague that no normal human being can figure out what it is.
NG: So what's an example of over-criminalization, something that's been criminalized that shouldn't be and then what's an example of a statute that is so vague it can mean anything?
Harvey Silverglate: There's an enormous number of statutes and regulations in the country. Federally, there are hundreds of thousands of regulations under each of the federal criminal statues, so if there are about 30,000 statutes, there are at least 10 times that many regulations and counting, everyday regulations are added. These regulations which nobody can assume. It's not a matter of common sense. You can assume that, you know, walking in certain areas of the federally-protected forest is a crime because it's not even posted, you're just assumed to know it and you can be picked up and you can be charged and these are real criminal violations, and so it's a combination of too many statutes and regulations and too many of them that you can't really figure out.
NG: Talk about in the book Three Felonies A Day and you're working on a sequel about correcting this, but what are the three felonies a day yesterday that you committed.
Harvey Silverglate: There's this federal statute, wire fraud, okay? That means if you use the wires of interstate communicate in order to further a crime or a fraud, you have committed a federal offense, okay? So, you're a salesman. Let's say you're on the telephone with somebody you're trying to sell a computer system or anything, and you're puffing a little bit, right? You're arguably slightly exaggerating the robustness of the system, you know, the kind of thing car salesmen are most famous for this. Any kind of salesman, and you're— If that conversation was recorded, a prosecutor can pick out something which arguably can say, ah, you used the wires of interstate commerce, the phone, in order to perpetuate a fraud. You told a lie with a goal of selling somebody something that wasn't quite as good as you made it out to be. You've committed a felony.
NG: Are people actually being prosecuted on that or is this kind of a like a sword of Damocles that is hanging over our head so that it's just a pretext and if we don't even know we're breaking the law, does the law actually govern our actions?
Harvey Silverglate: Well, yes, people are being prosecuted. One of the reasons people are being prosecuted is we have too many people working for the government and not enough useful work for them to do, so you do have this phenomenon of government people looking for somebody who's committing a crime, so if, you know, if you're a Bobby Unser and you've got— You're taking a sleigh ride, a power slide ride, and there's a storm and you accidentally go into an area of federally protected land where you're not allowed to have snow mobiles, he got charged in that case, it was completely accidental that he got into in that area because of a storm. Well, he was prosecuted and these are the kinds of crimes for which good intent is not a defense. There's no what's called mens rea requirement. You have to know that if was a crime to go over this invisible line.
NG: Now, mens rea comes up a lot because we are talking about sentencing reform. We're talking about changing a lot of this.
Harvey Silverglate: Criminal justice reform, adding the mens rea requirement.
NG: And is that a good thing or a bad thing because it seems— Critics say, oh, that will let among other things, that'll let corporate malefactors off the hook.
Harvey Silverglate: The critics, the cynicism of the critics of mens rea reform, you can't— There's no way of over-estimating the cynicism of these people. They're saying it would be a terrible thing because the people we don't like—corporate executives—they will be able to get off by arguing that there's absolutely no criminal intent on their part, so you want absolute criminal liability for people you don't like. However, when they come after you, suddenly you say, well, you know, I didn't intend to break the law. They want a separate set of laws essentially for the people they don't like, a separate set for themselves, their allies, and their protectees.
NG: Why isn't there a mens rea component already in place that is robust enough to arrest this?
Harvey Silverglate: First of all, a lot of people don't realize this—federal criminal law is not related to common law, so state systems have large common law elements. Mens rea is a common law protection. In order to convict somebody, you have to show they meant to commit the act and they knew that committing the act violated the law. Those two elements are necessary in common law courts, mostly state courts. The federal system, that's not true. The federal system operates by statute and if you want to have a mens rea requirement, the statute has to provide it. An enormous number of federal statutes do not provide, and by the way, that's probably accidental, you know, legislators don't always knows what they're doing and then there are these hundreds of thousands of regulations, each one of which has the power and effect of being a separate criminal law and they're made up by bureaucrats, so there's the number of missteps you can make in the course of a day just in the federal system is frightening and enormous.
NG: How did we get here? What are the political, the cultural, the legal mindsets and actions that brought us to a world in which we're always already guilty? Was it by design? Was it by accident? Is it a combination of the two?
Harvey Silverglate: I think that it is largely accidental. It kind of grew like Topsy. Part of it was the vast increase in the last several decades of the bureaucrats and bureaucrats—think about bureaucrats, is that they need something to do because we have way too many federal employees, way too many state bureaucrats as well, and when you have—
NG: Although we have fewer federal employers per capita than we did in the Kennedy administration.
Harvey Silverglate: Well, that doesn't mean that the Kennedy administration was the sane time either. It hasn't been sane— The 20th century is not a sane time for the federal government.
NG: So, weirdly in American life and I know as somebody who came of age in the '60s, the fight was always against the bureaucrats, whether they were in big business at GM or at the Pentagon or on college campuses, who— Are the bureaucrats self- multiplying or like nobody likes bureaucrats, right? So why do we keep getting more of them?
Harvey Silverglate: Well, they are self-multiplying in the sense that they're constantly telling the system whoever is doing the hiring or allocating the funds, that they need more people in order to perform the function. On the other hand, they partly establish what the function is, so we have an overlord society and in order to carry out the tasks of enforcing these laws, you need an increasing number of bureaucrats and in the colleges, it's gotten especially bad. You've got many many colleges that do not have the money to hire faculty members who are on tenure track, so they hire adjuncts who are paid very small amounts of money. You can get somebody paid $3,000 to teach a semester course and so the students are not being taught by seasoned, experienced tenured or tenure-track professors. They're being taught by part-time adjuncts who during the day or the night—
NG: And the cause of that is—
Harvey Silverglate: The cause of that is that so much of the money is sucked up in order to support an ever-growing bureaucracy, the student life bureaucracy is just monumental.
NG: Are you optimistic that we're going to be paring back some of the over-criminalization or the mass statute-ization of American life?
Harvey Silverglate: I think that we are on the verge of a massive reaction against overweening federal power and I don't mean because people are becoming libertarians or people become federalists. I think it's much more un-ideological than that. Guess what? People have become targets. People have become defendants. Everybody knows somebody who was prosecuted for something that either shouldn't have been a crime or they didn't intend to do anything criminal and everybody knows somebody or everybody has somebody in their family and as more and more victims of an out-of-control system pile up, they are starting to wake up about that's why there's a movement now to effectuate mens rea reform, you know, too many stories are now being told in the newspaper about somebody who got up in the morning, didn't intend to commit a crime, did something and ended up with a prison sentence.
NG: What are the hinge points? What are the key things that have to happen to make sure that this urge towards de-bureaucratizing our lives and de-lawyering our lives actually hits home?
Harvey Silverglate: Well, not meaning to be a smart alec and not meaning to be too ironic, I would say it's because so many people now have been hurt by the system and including, and this is critical—members of Congress, members of state legislatures, governors who've been indicting, this is the— They just argued former Virginia Governor McDonnell's case in the Supreme Court and the lawyers for Virginia were obviously quite taken aback that they had out of the eight justice sitting oral against—Scalia, of course had died—so there were eight justices, they were getting hostile questions from all but one. I think they were in total shock.
Why is that the case? There were amica briefs filed by an enormous number of former attorneys general, state attorneys general, a few federal attorneys general, former governors, all ganged together, people who wouldn't agree on what day of the week this is, agreed that the Department of Justice was becoming almost an terrorist organization with respect to state, local and even federal public officials. That's what causes change, that people in power begin to get hurt by their own system.
NG: Let's talk about free speech, particularly on college campuses. You co-founded the Foundation for Individual Rights in Education. You also co-authored The Shadow University with Alan Kors. Talk about when you started FIRE. How bad things were and then are they better or worse in the intervening years ?
Harvey Silverglate: When I co-founded FIRE with Alan Kors, I assumed that FIRE would have about a 10-year life. We were not looking to start an institution. I thought that it was needed in order to deal with a temporary public panic, an insanity. Suddenly, the mid-80s speech codes on academic campuses, on campuses that were liberal arts campuses, speech codes, certain things you couldn't talk about, kangaroo courts to enforce the speech codes, I figured it was such— There was such dissonance that was presented by these institutions growing up on the campuses, that if we did a little pushback, just a little pushback, this edifice would collapse of its own— Its own idiocy and inappropriateness. Inappropriateness is a very important word because you're talking here about liberal arts colleges where free speech and free ideas are supposed to be paramount and so I figured 10 years and then we go out of business. Little did I realize that things were going to be getting worse during those 10 years.
NG: Talk about an early case that helped push you to create FIRE and then talk about how nowadays that wouldn't— It almost wouldn't even register.
Harvey Silverglate: I'll tell you what got us to start FIRE was the publication of The Shadow University. It came out in '98 and suddenly Kors and I were getting phone calls and panic letters from people on college campuses who were in trouble for doing things that no sane human being would think was a violation of a rule.
NG: For instance?
Harvey Silverglate: Oh, saying something that injured the feelings of a fellow student or an administrator or a faculty member and demonstrating politically outside of a free speech zone. We had thought that the whole campus was a free speech zone. Not true. They would segregate the people who had the audacity to want to voice their sometimes unpopular views, they would put them in a little corner away away from the center of the campus and if they ventured outside of that little corner, they were charged with like a form of trespassing actually.
NG: The free speech zone is a small triangle on campus. There's really no regular foot traffic—
Harvey Silverglate: When we measured the size of the free speech zone, it came out that it was only 0.1% of the entire land area of the main campus. We had suddenly had all of these phone calls and letters from students who were being charged with things which seemed to be normal life on a college campus and we couldn't handle it. You know, there weren't enough lawyers to handle it, so we started FIRE in order to process all these and try, no. 1, find help for the students and no. 2, we undertook the task of writing letters to the presidents and to the deans to explain why it is that this particular action could not be a violation. This action could be a violation if you have a rule against this, it's the rule that that's problem, not the student that's the problem, and I figured you point out to an administrator how absurd the administrator's acting. Surely the administrator will see the light of day. Well, no. How the administrator reacted when we started to harangue them was they hired more assistants to deal with us.
NG: So you're part of the reason why college is so bureaucratized and costs more money.
Harvey Silverglate: No, they have their own reasons for being bureaucratized, but I will admit that many campuses have a couple of bureaucrats who are tasked with dealing, you know, if FIRE calls, you know, how to deal with the fire.
NG: Putting out the fire.
Harvey Silverglate: Right. We knew that we were arriving at respectability when they started to teach how to deal with us.
NG: In universities, there was this flourishing in post-war colleges as college became mainstream and more mass— More people started going, there was a move to get rid of in loco parentis, the idea that you would go to college and the college would act in the place of the parents and it was, no, college was a place and this started in the late '60s, came fully online in the '70s and then was ramped down or shut down in the '80s, but college was a place where it was a free play zone, an autonomous zone for the students and you could direct your own lives, you could direct your own education. That vanished. And then also you talk a lot about the effects or the influence of Herbert Marcuse's concept of repressive tolerance. Talk a little bit about why the end of in loco parentis seemed to be so brief and then also how Marcuse is still kind of guiding a lot of activities.
Harvey Silverglate: Okay. The gradual almost disappearance, of in loco parentis, had another aspect to it that you didn't mention, but that is crucially important. At that period of time, the colleges opened up the admissions process and you suddenly got on campuses that were basically, you know, took centuries or decades, took white Anglo-Saxon Protestants, suddenly there people of different religions and no religion. There were people of different races.
NG: Different genders.
Harvey Silverglate: Different genders.
NG: Most of the elite schools were single sex.
Harvey Silverglate: Yep.
NG: Until the early '70s.
Harvey Silverglate: So suddenly you had co-education and you suddenly had all of these different students who were probably not living together in their neighborhoods where they grew up which were much more segregated who were suddenly living together on the same campus. Campus administrators made an assumption—fatal assumption—that without adequate supervision by adult bureaucrats, student life bureaucrats, these students would kill each other and so they immediately ramped up. The student life bureaucrats and you know what bureaucrats love to do—they write rules—and suddenly the campuses were less free than they ever were and my own view is that was the fatal mistake. Why? Because students actually get along fairly well if left alone and I mean, I've seen it. I've dealt with students my entire legal career. They do get along. But when you've got bureaucrats who operate on the assumption that they're prepared to kill each other and that sort of permeates everybody's thinking on the campus and suddenly you have all these rules to get students from assaulting each other, from embarrassing each other, from talking in an upsetting fashion to each other.
These are liberal arts campuses where you're supposed to talk in an upsetting fashion because you're trying to say things honestly rather than always sugarcoating them, right? That's the nature of these are liberal arts institutions searching for the truth and so you had this bureaucracy working counter to the ethos of the liberal arts institution and this started, and they started to adopt speech codes. Suddenly, on a college campus, you couldn't say something that upsets somebody. Literally, this was written into a code and if you said something upsetting, the student can complain about it and you were suddenly charged. What?
So that's how FIRE— We have a very big free speech component of our work. That's how it started.
NG: When you look at college campuses now 17 years later, why are they worse? Is this just— Is this a virus that has gotten out of control or what is driving it and then what are the chances of pulling it back?
Harvey Silverglate: This is the dark side of accepting federal money if you're running a university. The dark side that 99.something percent of these colleges are now dependent on these infusions of federal funds and all the Office of Civil Rights has to do is say if you don't hire three more bureaucrats in the Office of Sexual Assault Prevention, we are going to find you deficient in regard to dealing with sexual assault and you're going to lose X millions, tens of millions, X hundreds of millions of dollars, in federal funds, even though I doubt there's a college in the country that couldn't win a lawsuit very quickly if there was an attempt to take away their funds. They cave in instantly. No guts.
NG: What changes positions in the Office of Civil Rights? Is it the bureaucrats or is the president who appoints the Secretary of Education?
Harvey Silverglate: The bureaucracy has a life of its own, operates on a trajectory of its own. It's there're so many of them. It's even hard for the president to know who and what is in the bureaucracy and what they're doing at any given time and, you know, occasionally, there's a congressman who's usually somebody who has a kid in college and has heard some horror stories, you have a congressman who asks for a congressional investigation. That's how some of these things come to the surface, but essentially the bureaucracy has a life of its own. It's self-governing, self-perpetuating, and in order to get rid of it, you have to kind of, you know the expression, pull it out root and branch. The Office should be abolished I simply have to say. It's not reformable. It's got a culture that is inimical to the whole concept of higher education, academic freedom, due process and fairness. They don't understand any of this, much less have any fidelity to it. The Office should be abolished.
NG: Talk a bit about Marcuse and how his ideas are still at play, even if people inhabiting them or using them don't quite understand them.
Harvey Silverglate: Well, Marcuse in the '60s came up with what I would call, to use a John McCainism, a wacko theory. The wacko theory put as simply as I can make it, is that in order to achieve true equality, rights have to be assigned differentially. People who are in the victim classes, lower socioeconomic classes, certain racial classes—they in order for them to achieve equality, they have to have more rights than the people who are at the top of the totem pole or the pecking order, they have to have decreased rights, so this idea of equality is achieved by having differential assignment of rights. You would think it's a self— You know, it's like— It's a sick joke in a way, but it gained a lot of traction in academic circles. Where else could something as wacky as this be accepted?
NG: Let me interject, though, for a second, because isn't that like if you say, you know, it's 1964 and you're black and you're poor, you might get more money from the government in order to level the fact, you know, that you haven't had certain advantages. I mean, this is affirmative action essentially.
Harvey Silverglate: Affirmative action has real problems because it operates on an assumption of a differential assignment of rights. That has a real downside and how we could avoid affirmative action, the process of lowering standards for certain students to get into college, we can avoid that by giving them a decent education in the first place, from kindergarten on. Instead of dealing with that problem, when they've graduated kids who really can't read very well, who can't write very well, who haven't read much history, they graduate these kids and they're suddenly having to shoehorn them into colleges for which the kids are ill prepared.
NG: Well, and then with the Marcusian idea of assigning differential rights, of course, that implies a bureaucracy or a system that can identify the inequality and rectify it and that's what got us—
Harvey Silverglate: Somebody has got to establish the categories for the Untermenschen, right? You want to separate the Übermenschen from the unter munchen, somebody's got to decide who's in what category and those are the favorite categories. They're allowed heightened speech rights, for example, so this is really quite Marcusian. A person who's in a privileged category, they can easily demean somebody by what they say who's in a less advantaged position, but the person in a less advantaged position can say what they want because there's no way they're going to be able to hurt the person in the higher position, the more favored position, so you've got differential assignment of rights. It is the enemy of legal equality and legal equality is the only thing that protects all of us.
NG: We live in an age where Reason interviewed Edward Snowden a while ago and he was in an undisclosed location in Russia and he said, you know, the individual has more freedom and ability to act in the world than ever before, and it's true, I mean, in terms of free speech, we are in orders of magnitude, vaster, we can say what we want and reach audiences and connect and preserve our thoughts and on the other hand, we're looking at places where the Obama administration has been terrible to journalists, in particular, where the government is surveilling everything that we say and do. The college campuses are like re-education camps, so is free speech moving forward or backward. How do you feel about that?
Harvey Silverglate: When I was a young kid, this may have been before your time—I don't know—Mad Magazine, we read every issue of Mad Magazine that came out and there was a feature called "Spy versus Spy." There was a white-clothed spy and a black-clothed spy. No racial overtone. Today if you drew this cartoon on a college campus you would be disciplined, of course, because they would read it as a racial comment, but it wasn't, and I kind of see the world through Mad Magazine. For several reasons, I see the world through the eyes of Mad Magazine, but one of them is that it's a spy versus spy, the forces of repression, the government using the latest electronic mechanisms. They're fighting the private citizens, the technies, the journalists, the people who want to find out the government's secrets and let that secret out so that the people who vote after all know what they're voting for and so this a tension. Who's going to win? Well, probably neither side is going to win and that's okay with me as long as the government—
NG: As you don't lose.
Harvey Silverglate: As long as we don't lose, that's okay with me. What it means is that the preservation of liberty is a constant struggle. What's new about that? Absolutely nothing.
NG: But do you worry and I know Greg Lukianoff, the current executive director of FIRE, talks a lot about how in this context both in terms of on college campuses and more broadly in society, that the very idea of free speech is— It's not even that it's under attack, but that it's kind of vanishing.
Harvey Silverglate: The problem, the thing that is, and I think has Greg so upset and what has me upset is not that it's vanishing, not that it's under attack. It's always been under attack, but it's under attack from quarters that once we could count on as allies and that is the academic community, the college community, those folks are now largely the enemy. We have to fight them and while we're trying to fight the government, we're also trying to fight the bureaucrats and the other oppressors on the college campus.
NG: You know that you've been investigated by the FBI at least three times.
Harvey Silverglate: Yes.
NG: Talk about those cases or instances and how you discovered that.
Harvey Silverglate: In one case, clients were being indicted for drug operation and there was an attempt by the prosecution, the U.S. Attorney's Office here in Boston, to freeze and forfeit all of their assets claiming they were drug tainted. That's done by the government in order to disable them from being able to pay for legal counsel. That's really what— The government didn't need the money, but they didn't want these people to have money for lawyers, for private lawyers, and so we were trying to get witnesses to sign affidavits and testify that the money that these clients were using came from a private real estate business they had rather than from any kind of drug business, so this guy comes in. He says, "oh, yeah, he said I've dealt with your clients before and I can testify to some of their real estate deals they did and they made money on them and so forth," so I said, "oh, good, well, we'll have you sign an affidavit," so he dictates the affidavit. We have it typed up, bring it in and he's about to sign. He says, "by the way, you know, none of this is true but I really like your client, so I'm going to sign it," and at that point, I smelled a rat. I said, "well, wait a minute, don't sign anything."
I walked around and I saw he had a white kind of flowing Muslim shirt on and sort of a Lawrence of Arabia type shirt and I go on back and I see that there's a lump in his back, a square lump, and I realize it's what they call the [unclear]. It was their small what was then miniature recorder. They're much more more miniaturized and I realize that he had been sent in by the government, so I said, "no, no, you don't know— You don't understand the system or our role in the system." I gave him a civics lecture talking to the recorder naturally and I said, "I'm afraid we're going to have to send you home. We can't use your affidavit, but thanks for coming by," and we threw him out.
NG: What are the other cases?
Harvey Silverglate: And I found out years later somebody had come across, had accidentally filed in another case, a report that DEA agents were surveilling my office. They were standing outside my office, following me around to see what I do. I was being investigated by these thugs and they had gotten the wrong guy. It shows you this is government work, right? Somebody walked out of my office building on Broad Street Boston and they followed him thinking it was me. It wasn't me. They follow him down to what was then the elevated expressway. There was a car parked under the elevated expressway. The guy gets in and has a sexual encounter with a young lady who was behind the steering wheel and they're all excited. They go over to the window. They knock on the window. The guy is horrified. It turns out, of course, he's got a wife and kids at home, right? And they said, "you're Harvey Silverglate, aren't you?" And what is the guy supposed to say, oh, no, no, I'll show you my driver's license. I'm Joe Smith and I'm married and my wife lives in Malden. So the guy says, "oh, yeah, I'm Harvey Silverglate," so they're all excited. They've now caught me in flagrante delicto, so to speak, and only later did they realize they had the wrong guy. I wasn't even around. I wasn't in town that day.
NG: Talk a little bit about your kind of intellectual genealogy or journey. Was civil liberatism something that you came out of the womb believing in or what brought you to your set of beliefs?
Harvey Silverglate: I had a kind of typical middle class Jewish upbringing in a half Jewish neighborhood in Brooklyn and then my father who was a furrier at the time was having trouble with the fur union. They were sending thugs around. They didn't like the fact that he reported a crooked election, so we moved to New Jersey where he was able to get away from the furriers' union and New Jersey suburbs, a suburb of Hackensack. I did not like the suburbs. I was a Brooklyn boy and I left from there and went on to college in Princeton because I had a big scholarship and Princeton was just beginning to open up to Jewish kids and with no money, I got a full scholarship and my parents and my grandparents, of course, told me I was going to medical school and be a nice Jewish doctor just like, you know, that's what they came over from Russia, that's what they escaped from Russia and Poland for so I could be a doctor, right? That's a heavy burden.
And then the end of my sophomore year for that summer for the first time I left the territory of the United States and I went abroad. They got me a job, Princeton got me a job, paid for my transportation, to work in Paris and it was my first time out of the country. I was away from family for three blessed months that summer and I rethought my entire life. I came back deciding that the things that people do to each other are much more bothersome to me than the things that germs do to people and I decided I was going to go into journalism and I was going to go to law school so that I could understand the legal system better, so I started out law school with a journalistic career in mind.
Ran into Alan Dershowitz. It was his first year at Harvard Law School, my first year. We became friends and by the third year, he convinced me. I take the bar exam and work in a legal office for a couple of years to see whether I wanted to actually be a criminal law or a crime reporter. And I went to Boston. I got out. I got a job with a very interesting little firm that did criminal defense work. I did some First Amendment work and I decided that I would be a little bit of both. I would be a practitioner and I would write about it and there were very few legally trained people in those days who wrote. I was one of the first people.
I wrote for the Boston Phoenix, a counter-cultural newspaper that actually wrote— My criticism of judges and lawyers. It was unheard of to criticize a judge in print. The assumption was that you would lose your— They wouldn't like you. You wouldn't do as well on cases. Quite the opposite. Suddenly I got treated very well. I got treated fairly. They weren't friendly, but I got treated fairly because if they really did terrible things, I would write about it, you know, and so fear is a tremendous power and they don't like it. Sunlight is the best disinfectant. It's true.
NG: Who are your legal heroes?
Harvey Silverglate: Alex Kozinski in the 9th Circuit. There's somebody who he doesn't care if people like him or not. He tells the truth. He writes legal opinions. He holds prosecutors' feet to the fire. Naturally, I thought Clarence Darrow was somewhat of a role model. Alan Dershowitz was a great influence. We did a lot of cases together and for a while I was ahead of him because I had more experience. He's, of course, a brilliant strategist and an appellate lawyer and so I've had some law partners who've had a lot of guts.
NG: So it's really the people who make the system work, though?
Harvey Silverglate: Yeah.
NG: It's not him.
Harvey Silverglate: The people who make the system work are the people who're not afraid to say— You know the old [saying]—truth to power, who aren't afraid to say when the judge or a prosecutor or an FBI agent are totally out of hand.
NG: Just as an end point, you are writing a sequel to Three Felonies A Day. What is the title and what do you hope to accomplish with that book and when will we see it on our shelves?
Harvey Silverglate: Well, Three Felonies A Day, remember, was a book that talked about quirks in the system that easily, easily, could result in the conviction of innocent people. I had represented enough people where they had been convicted and sentenced to long prison terms for not doing anything that I would consider criminal just as an ordinary, you know, reasonably au courant human being and it had a tremendous influence. I was actually surprised. Lawyers were getting in touch with me. Defendants, people who were in prison who had cases that were equally as outrageous as anything I wrote about, and then I was getting kind of confidential communications from judges. That told me that the system was really broken and even judges, some judges, understood it. A lot of them robotically played along and some of them cynically played along but everybody realized that the system was broken. And I even heard, believe it or not, from a few federal prosecutors on the condition that I never mentioned that they contacted me and I'm not about to mention them now.
NG: That was my next question but –
Harvey Silverglate: And it couldn't be tagged as left or right because I talked about victims at all ends of the political spectrum and businessmen and artists and some quite ordinary people and so Roger Kimball said to me about two years ago, "you know, Harvey, everybody tells me that your book is brilliant in setting out the problem and totally deficient because you don't suggest solutions." I said, "well, when I wrote the book, I wasn't sure what the solutions were and besides, you told me I already had a manuscript that was twice as long as it could be." He said, "I want you to write a follow-up to the book that's suggests solutions and I want you to make it simple enough so that legislators can understand it." That's a challenge. Legislators can understand it. Everybody can understand it and I'm hoping to have a manuscript this December to my publisher that'll come out sometime next year. It's called Conviction Machine: How to Dismantle It and Errol Morris, the documentary filmmaker is working with me to try to put together a series of shorts illustrating the problem that the system has, both state and federal, mostly a federal problem, of the absence of what we call mens rea requirements in statutes.
NG: We've been talking with Harvey Silverglate. He's the co-author of The Shadow University, co-founder of FIRE, author of Three Felonies A Day and the forthcoming Conviction Machine: How to Dismantle It. Harvey, thanks so much for talking with us and the work you do.
Harvey Silverglate: My pleasure. Thank you.
NG: For Reason TV, I'm Nick Gillespie.