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If you are an average American, then you are a repeat felon. In his stunning book, Three Felonies a Day: How the Feds Target the Innocent (2009), civil-liberties attorney Harvey A. Silverglate estimates that the average person unknowingly breaks at least three criminal laws each and every day. Federal statutes and regulations have become so voluminous and vague that over-reaching prosecutors can target anyone at any time. They may think you are guilty, they could want leverage to force your co-operation, they may be vengeful, or they could be building their own careers; the motives are secondary. What’s primary is the clout and, in this, the federal bureacracy of the United States now rivals the Soviet Union at the zenith of its power.
Even if you are ultimately proven innocent, the ‘vindication’ will come after years of abusive prosecution during which your assets will be frozen, your family interrogated and, perhaps, threatened, your reputation smeared, your life left in shambles.
How did this happen in the Land of the Free? How did America drift so far from common law roots that preserved peace and property?
Step by step.
Silverglate saw it happen. As an attorney, he has fought against unjust authority and for civil liberties through five decades. In 1969, he was trial counsel for students charged during an anti-Vietnam war protest. In 1999, he co-founded the Foundation for Individual Rights in Education (FIRE), which has become the foremost voice for freedom and rights on American campuses. He has witnessed freedom be ravaged by the run-away growth of laws and statutes that are interpreted so broadly as to bear no resemblance to their original intent. Through articles in The National Law Journal to The Los Angeles Times, from Harvard Law Review to Reason, Silverglate has testified to against one of the greatest enemies of our freedom: the Department of Justice. Few people are as qualified as Silverglate to write a book like Three Felonies a Day. Indeed, some of the pivotal cases he describes are ones that he litigated.
And, so, Three Felonies a Day masterfully guides readers through the law and bureaucracy to make their complexities accessible. Silverglate provides both concrete examples and the broad framework in order to make you understand how the federal government arrived at your doormat.
A concrete example? – Honest Services Fraud. This ‘crime’ derives from a passage in 18 U.S.C. Section 1346 (the federal mail and wire fraud statute) that criminalizes the use of a “scheme or artifice to deprive another of the intangible right of honest services.” Congress did not define what constituted an “intangible right of honest service” Thus, the sentence could be used as a meat axe or a scalpel depending upon interpretation; the Department of Justice interpreted it broadly. For example, it has been used to prosecute public officials who do not disclose a conflict of interest in the performance of their duties.
Two professors from the University of Tennessee Space Institute provide an example of “honest service fraud’ in the private sector. They allowed three students to graduate based upon work known to be plagiarized in order to secure federal contracts from agencies employing the students. As a result, the professors were convicted on three counts of mail fraud for intentionally depriving the University of Tennessee of honest service as employees.
Significantly, the badly misused charge of ‘fraud’ was based on one small passage of a much longer statute. According to a Heritage Foundation and the National Association of Criminal Defense Lawyers co-authored study, Without Intent, Congress created more than 450 entirely new crimes from from 2000 to 2007. Many of the statutes were complicated and so vague as to invite unpredictable construction, which left companies and individuals unable to defend themselves. Since then, the pace of new law has done nothing but quicken.
The defining framework? The Code of Federal Regulations. The CFR include the rules by which an executive branch will interpret and implement a statute. For example, if a statute (or a tiny prong of one) prohibits dangerous pollutants in drinking water, then a CFR for the Environmental Protection Agency would define what constitutes “dangerous,” “a pollutant” and acceptable levels, if any. It might also define the testing procedures required, etc. Silverglate complains of the abusive use of such power in the hands of the Department of Justice, especially since “administrative powers” go virtually unchecked.
“Why do the feds stoop to such tactics, and why have they so long gotten away with it?” Silverglate asked himself that question in a 2010 Forbes interview. He continued by describing the theme of Three Felonies a Day. “The answer, in my estimation, lies in large measure in the extraordinary vagueness of the underlying federal statutes.”
But Three Felonies a Day is not a chronicle of complaints nor a doomsday book. Silverglate believes in the ability of “civil society” — that is, protest by “the people” — to reverse the surging totalitarianism of American law. Referring to Without Intent and other bipartisan backlash, he told Forbes, “[C]ivil society, spurred by recent judicial scrutiny, is beginning to fight back–seeking to restore public trust in a federal criminal justice system that has lost much of its claim for respect.” Three Felonies a Day is a volley in civil society’s fight against the Department of Justice.