Hundreds of new criminal statutes appear on the lawbooks every year. Some commentators argue this is a threat to U.S. democracy. Caroline Stetler listens in to the debate.
Did you do anything criminal today? Boston defense attorney Harvey Silverglate claims you probably did—without even knowing it.
According to Silverglate, the average busy professional commits three felonies every day—any of which an ambitious and creative prosecutor could turn into an indictment. Seemingly innocuous activities like using the telephone or e-mail at work, or posting information on Web sites could potentially lead to a federal offense if your tone strikes someone as threatening.
Last week, Silverglate testified in Congress in opposition to a proposed cyber-bullying law because, he claimed, it left the line between criticism and bullying dangerously ambiguous. One of the laws, the Megan Meier Cyberbullying Prevention Act is named for a 13-year-old who committed suicide in October 2006 after a former friends’ mother created and used a fake MySpace account to bully her. Silverglate testified that although such legislation is often born of good intentions, the bill’s vague language would result in excessive and unfair prosecutions.
But the problem is not confined to communications. A growing number of attorneys and commentators believe the expansion of criminal laws on the statute books leaves average citizens increasingly vulnerable to arrest and prosecution. The vagueness of those laws, they complain, threatens to erode constitutional rights.
Tony Blankley, a one-time California prosecutor who went on to become press secretary to former House Speaker Newt Gingrich (he’s now a Washington Times columnist and Huffington Post blogger), put the issue squarely on the table at a forum last Thursday at the Cato Institute in Washington, D.C.
“Now, the law is like the blades of grass in a meadow,” he said. “You can’t see them, you don’t identify with them, and yet they have poisonous tips.” He later added that the issue should not be pigeon-holed as conservative or liberal. “You can be a conservative prosecutor and be equally appalled with the abuse,” said Blankley, whose political sympathies align to the right.
Blankley was serving as moderator of a discussion with Silverglate, who has just come out with a book called "Three Felonies a Day" (emphasizing his claim of unwitting criminality by ordinary citizens); and Tim Lynch, director of Cato's Project on Criminal Justice, editor of a recently published anthology called "In the Name of Justice."
Silverglate pressed his provocative argument at the forum discussion, claiming that Americans are facing a double-pronged threat to their liberties: not only are there more criminal laws on the books today; they are being interpreted in expansive ways to cover activity which most citizens wouldn’t consider criminal. “When the statutes are vague you are totally at the mercy of the government,” said Silverglate.
The downside, Silverglate suggested, is that “real” criminals go unpunished when so much time and resources are spent prosecuting citizens whose behavior would not be considered criminal by reasonable people.
The federal practice of prosecuting people under statutes that nobody could understand, for committing crimes that would puzzle even a sophisticated lawyer has another undesirable effect. “It actually poses opportunities for law enforcement to go after whomever they want,” Silverglate said.
He predicted that the repercussions may be felt most heavily by bankers and financiers in the wake of the 2008-2009 financial crisis. Prosecutions, for instance, of bank officials who erroneously predicted their banks would survive. Was that criminal? According to Silverglate, there are statutes on the books that could interpret such behavior—even if unwitting—as lawbreaking.
So why haven’t people heard more about this? Tim Lynch blames the news media, arguing that mainstream journalism has found the issue too difficult to cover as a spot news story. “When constitutional rights are slowly eroding over time, it’s difficult to report,” Lynch said. “You can report on a court decision, legislation in Congress, but it’s hard to get your arms around a legal trend.”
Perhaps journalists need to be more pro-active in searching out authoritative sources who could tell the story. Included in Lynch’s book is an essay written by Judge Alex Kozinski who argues that the average citizen is “probably a federal criminal” thanks to the criminalization of certain types of otherwise non-threatening behavior, ranging from tax and regulatory violations to violations of employee codes of conduct. The notion that most citizens no longer know what activity can be broadly interpreted as criminal resonated with the audience. “When I was in the police academy, ignorance of the law was no excuse,” said Howard Wooldridge, a retired Michigan detective who cofounded Law Enforcement Against Prohibition who sat in the front row sporting a cowboy hat. However, with so many laws on the books today, he was encouraged by the speakers’ claims that legislatures could write mens rea into every statute, so people could not be prosecuted if they did not intend to commit a crime.
Lynch said raising public awareness of the problem may create the kind of pressure needed to stop the proliferation of new criminal laws—and repeal some of the most egregious statutes now on the lawbooks.
But it’s likely to be an uphill battle. Eric Sterling, former counsel to the House Subcommittee on Crime (1979-1989), rose from the audience to reveal that when he was writing federal anti-crime legislation, a colleague advised him to write it as broadly as possible to avoid embarrassing loopholes. “There are really deep structural problems in how Congress thinks about the problems of crime and how it feels it needs to respond to the problems of crime,” Sterling said.
On October 26 in New York City, another panel, this one organized by the Manhattan Institute, will take on the over-criminalization of conduct and over-federalization of criminal law. Brian Walsh, a senior legal research fellow at the Heritage Foundation, who also attended the Cato forum, will discuss possible solutions, such as implementing a default criminal intent requirement that would ensure innocent persons will not suffer when Congress fails to be precise.
There are skeptics on the other side of course, although they were not much in evidence at the Cato forum. Rising complaints about how top bankers and shrewd mortgage brokers were able to get away with exploitive behavior during the financial crisis suggest that many still feel there are far too many loopholes remaining in the statute books on white-collar crime. But clearly the debate has now been joined.
Caroline Stetler is a post-graduate fellow at the Investigative Reporting Workshop at American University.