Three Felonies a Day Read online

  The U.S. criminal justice system would appear to be at a crossroads. Some skepticism has emerged even within courts and among judges, and some sectors of civil society have sounded the alarm and formed coalitions to fight the trend. Lawyers and scholars have taken to writing about the problem.37 But the Department of Justice continues to press forward, and many media supporters of such efforts value the excitement of “perp walks” more than the importance of due process for people they are inclined to distrust, oppose, or even despise.

  It is too early in the history of the practice of prosecuting and convicting citizens and organizations under vague federal statutes, and much too early in our society’s effort to fight back, to predict whether the federal criminal justice system will be returned to its roots or continue along the path begun in the mid-1980s. But recent signs offer reasons for optimism.

  FOREWORD

  The very possibility that citizens who believe they are law-abiding may, in the eyes of federal prosecutors, be committing three federal felonies each day—which is the central thesis of this provocative and timely book—threatens the very foundation of our democracy. Our system of checks and balances depends on a vigorous judiciary and legislature serving as a brake on excessive prosecutorial zeal. It also depends on an alert private citizenry willing to exercise its constitutional right, indeed obligation, to petition the government for a redress of grievances. But when the executive branch, through its politically appointed prosecutors, has the power to criminalize ordinary conduct through accordion-like criminal statutes, the system of checks and balances breaks down.

  Harvey Silverglate, an experienced and astute criminal lawyer, makes a compelling case that federal prosecutors are abusing their power by using the criminal law to prosecute law-abiding citizens whose conduct is arguably covered by extremely vague criminal statutes that are capable of reaching acts which are believed to be lawful by those who commit them. These prosecutors threaten to indict underlings for conduct that is even further away from the core of criminality unless they cooperate against the real targets. Because federal criminal law carries outrageously high sentences—often with mandatory minimums—these prosecutorial threats are anything but illusory. They turn friends into enemies, family members into government witnesses and employees into stool pigeons. Silverglate believes that we are in danger of becoming a society in which prosecutors alone become judges, juries and executioners because the threat of high sentences makes it too costly for even innocent people to resist the prosecutorial pressure. That is why nearly all criminal defendants today plead guilty to “reduced” charges rather than risk a trial with draconian sentences in the event of a conviction.

  I litigated dozens of cases in a country that employed this tactic with a vengeance. That country was the Soviet Union in the 1970s and ’80s. Every Soviet citizen committed at least three felonies a day, because the criminal statutes were written so broadly as to cover ordinary day-to-day activities. The Communist Party decided whom to prosecute from among the millions of possible criminals. They picked dissidents, refuseniks, and others who posed political dangers to the system. This began under Stalin when his KGB head, Lavrenti Beria, infamously said, “Show me the man and I’ll find you the crime.” Even after Stalin’s death, the gulag was filled with ordinary citizens who had committed no crimes other than disagreeing with the powers that be. They were not prosecuted for dissenting. Instead they were prosecuted for violating the myriad laws regulating commerce and other day-to-day economic activities.

  Several of my Soviet clients repeated the following gulag story: A new prisoner who has been sentenced to 10 years of confinement is introduced to the old prisoners who ask him what he is in for. He responds, “Nothing.” The leader of the old prisoners responds cynically, “You’re a liar. For nothing they only give you 5 years.”

  The Soviet legal system was evaluated by the Communist Party not by its ability to dispense justice but rather by its efficiency. As Aleksandr Solzhenitsyn put it in his masterful work on the Gulag Archipelago, a garbage disposal system is not judged by its fairness but rather by its ability to dispose of the garbage quickly and inexpensively. We are not the Soviet system and there is little danger that we will ever reach that nadir of injustice. But if Silverglate is correct, and the evidence he provides certainly supports his thesis, then we are moving in the direction of that abominable system of justice. The difference is that the Soviets were motivated by evil intentions—the desire to suppress legitimate dissent. The prosecutors in our country are often motivated by good intentions—the desire to suppress predatory crime. But the road to injustice, like the road to hell, is often paved with good intentions. As Justice Louis Brandeis once put it: Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

  Many current federal prosecutors honestly believe that they are doing God’s work by creatively employing vague federal statutes to remain a step ahead of creative criminals. They think, and with some justification, that clear and specific criminal statutes can always be evaded by clever and conniving criminals who can achieve their nefarious goals without violating the precise terms of often anachronistic criminal statutes. New technologies present new opportunities for crime, and the criminal law has difficulty keeping pace with innovative criminals.

  This problem of criminal law keeping pace with new developments was exemplified by a 1931 decision written by Justice Oliver Wendell Holmes. A man had stolen an airplane and transported it across state lines. He was charged under a statute that had been enacted in the early days of the automobile and that criminalized the transportation of “motor vehicles” in interstate commerce. Because it would require guesswork to decide whether Congress intended to include planes as motor vehicles, the Supreme Court reversed the conviction, requiring Congress to be clear about what it meant. Congress then amended the statute to include airplanes.

  This story is often repeated when new technologies or financial instruments have given rise to new opportunities for deception, overreaching or sharp practices. It is up to Congress, not the courts, to decide which borderline conduct is to be criminally prosecuted and punished, and Congress should do so with unambiguous language capable of being understood by all citizens. Under the Constitution, there is no room for creativity by prosecutors who are understandably eager to send messages to miscreants who are themselves using creativity in circumventing anachronistic criminal statutes. An expression common when our Constitution was ratified was that a criminal statute had to be so clear that it could be understood when read by a person “while running.” Today’s federal statutes do not come close to satisfying that criterion.

  The very real current threat of terrorism provides another context in which federal prosecutors are employing vaguely written statutes, some of them relating to the financing of terrorist activities. The financing of terrorism is a serious problem, deserving of federal concern. The statutes criminalizing such activities, however, are poorly drafted and open ended. In this area, as contrasted with some others, the federal government has suffered significant defeats at the hands of recalcitrant jurors. This would seem ironic at first blush, since the public is deeply concerned about terrorism and jurors are likely to reflect that concern. Yet, in several high-profile cases, juries have either acquitted or hung. I offer one possible explanation, though it is necessarily tentative and somewhat speculative. In terrorism cases, the political agenda of the government is apparent, and American juries are particularly sensitive to abuses of civil rights in the political context. That was true during the Vietnam War, and it apparently continues to be true in the war against terrorism. In purely financial cases that do not involve terrorism or any other obvious political issue, jurors are less likely to express skepticism about g
overnment overreaching. The Soviets learned this lesson early and disguised their political cases as purely financial ones. They were not concerned about jury reaction, but rather about public opinion, both domestic and international. Some American prosecutors have tried to disguise political prosecutions as terrorist-related financial cases, but some jurors have seen through the disguise.

  The men and women of zeal who use elastic criminal statutes to prosecute citizens who they believe are exploiting or endangering other citizens may in fact be doing God’s work, but they are not doing Jefferson’s work or Hamilton’s work or Madison’s work or the work of the other founders of our secular nation and Constitution. They should leave to God (or public opinion) the punishment of immoral people who do not violate the explicit terms of criminal statutes. They should not take it upon themselves to right all the wrongs of an imperfect world but rather to prosecute only those defendants who, to paraphrase Shakespeare, have answered Hamlet’s question “to be or not to be” a criminal, by deliberately and consciously crossing the line from immorality to felony. There should be vehicles other than criminal prosecutions for interpreting and testing the reach and meaning of vague statutes; civil and administrative proceedings are fairer vehicles than prosecutions for the creative common law expansion of a citizen’s legal duties. Prosecutors should be empowered, as they are in some contexts, to seek declaratory judgments, injunctions or other civil remedies that carry monetary sanctions but not criminal punishment. Only after the law has been definitively clarified should prosecutors be permitted to seek criminal punishments.

  The criminal law should always be retrospective. The constitutional provision against ex post facto laws should be read broadly to cover after the fact interpretations of vague criminal statutes. It is no accident that this important prohibition was included in the body of the Constitution even before the Bill of Rights was ratified. It is fundamental to a free society that its citizens be able to read the law and conform their conduct to it. As Justice Holmes said in the airplane case referred to above: “Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” This approach to criminal justice will make it harder for the federal government to prosecute some innovative criminals, but that is the price a democracy must be willing to pay for the important principle that no person should ever be prosecuted unless he has made a conscious decision to violate the criminal law. It is said of one particular Roman tyrant that he placed the text of his law so high above the heads of the citizens that they could not read it. That is the way of tyranny, not democracy.

  Silverglate brilliantly documents how the principle of fair warning is being violated on a daily basis by current federal prosecutors. He also shows that this is not a Republican problem alone nor one that has been limited to any particular recent administration. The Clinton Justice Department violated this principle as zealously as did the Bush Justice Department. Unless the culture of federal prosecution changes, it seems likely that this problem will persist regardless of who is elected president or who is appointed attorney general. This is a systemic problem that requires a systemic answer. I believe that at the heart of this problem is the structure of the Justice Department itself.

  Our attorney general is a presidential appointee, generally from the president’s party, often a trusted friend and political adviser. Recall Robert Kennedy, President Kennedy’s brother and campaign manager; John Mitchell, President Nixon’s law partner and campaign manager; and William French-Smith, President Reagan’s personal lawyer, as perhaps the most striking examples of the closeness between presidents and their attorneys general. Although Janet Reno was not a friend of Bill Clinton, she came from his party and was recommended for the job by Hillary Rodham Clinton’s brother. President George W. Bush’s first two attorneys general were political cronies. The attorney general is supposed to be a trusted loyalist, a member of the president’s Cabinet, a person in whom the president can confide on matters of policy and politics. That same attorney general is also supposed to be the nation’s highest law enforcement officer—the person who ultimately decides whom to investigate and to prosecute.

  Because our attorney general—unlike any official in other governments—plays these dual roles of political adviser and chief prosecutor, no one holding that job can be trusted to investigate and, if necessary, prosecute the president or other high-ranking members of his or her and the attorney general’s administration. He or she would be in a clear conflict of interest, and the perception of unfairness would cloud any decision.

  The same is true, though perhaps to a lesser degree, with any high-profile prosecution, especially any that has political or partisan implications. It is also true to some degree of all prosecutions, since winning and losing criminal cases reflects on the administration.

  In other democracies, the two jobs that our attorney general performs are divided. There is a political officer generally called the “Minister of Justice” whose job it is to advise the president or prime minister and to be loyal to the party and person in power. There is also a non-political official, generally called the “Attorney General” or the “Director of Public Prosecutions,” who has no loyalty to the incumbent head of state or his party and whose sole responsibility is to investigate and prosecute in a nonpartisan manner. Prime ministers and presidents have been brought down (and upheld) by such prosecutors, without any appearance of impropriety. Prosecutions in general have a less partisan feel and smell.

  Our system of investigation and prosecution is unique in the world. We have politicized the role of prosecutor, not only at the federal level but in all of our states and counties as well. Nowhere else are prosecutors (or judges) elected. Indeed, it is unthinkable in most parts of the world to have prosecutors run for office, make campaign promises and solicit contributions. Prosecutors in other countries are civil servants who do not pander to the people’s understandable wish to be safe from crime, or campaign on the promise to “be tough on crime.” (Our penchant for voting on everything has reached laughable proportions in Florida, where even “public defenders” must run for office. I can only imagine what the campaign must be like.) But in the United States, prosecutors are not only elected, or in the federal system appointed in a generally partisan manner, but the job is a stepping stone to a higher office, as evidenced by the fact that nearly every senator or congressman who ever practiced law once served as a prosecutor. Winning becomes more important than doing justice, because voters vote for “winners” not “justice doers.”

  There is much that needs to be done to make our criminal justice system more just and less political. Requiring crystal-clear criminal statutes is an important beginning and a crucial step. Silverglate’s book shows the way.

  Alan M. Dershowitz

  August 2009

  INTRODUCTION

  TRAPS AND SNARES FOR THE UNWARY INNOCENT

  A little over a half-century ago, an Army veteran named Joseph Edward Morissette settled in small-town Michigan to raise his family. To support his wife and young son, the 27-year-old worked as a fruit stand operator during the summer and as a trucker and scrap iron collector during the winter. His seemingly normal life came to a screeching halt, however, when he was charged with stealing from the United States government in 1952. His case would ultimately wend its way through the federal court system and end up at the Supreme Court.

  One time when Morissette was out hunting for deer with his brotherin-law, he came across a heap of spent bomb casings on a tract of uninhabited land located about half a mile from a traveled road and about six miles from the main highway. To Morissette, the casings appeared abandoned. There were no signs posted to the contrary, and, having sat in a pile through several harsh Michigan winters, t
he casings were showing signs of rust and decomposition. When Morissette failed to bag a deer to pay for his hunting trip, he collected some of the casings, crushed them with his tractor, and sold them as scrap metal. The casings yielded him $84.

  The land turned out to be Oscoda Air Base, which the military used, according to the later Supreme Court opinion, as “a practice bombing range over which the Air Force dropped simulated bombs at ground targets.”1 A police officer, likely concerned about the large amount of bomb-shaped scrap metal heaped in the bed of Morissette’s truck, asked him about the casings and referred the matter to an FBI agent. That, in turn, led to Morissette’s being indicted in federal court on the charge that he “did unlawfully, willfully and knowingly steal and convert” property of the United States in violation of a statute that provided that “whoever embezzles, steals, purloins, or knowingly converts” government property is punishable by fine and imprisonment. Morissette was convicted and sentenced to two months in prison or a fine of $200.

  Morissette hadn’t realized that the casings were the government’s property; he had taken them on the assumption that they were abandoned. In fact, he told the police officer who first questioned him that he did not think they were of any use or that anybody would care if he took them. Yet Morissette’s “innocent intention” couldn’t save him at trial. Despite the facts, the trial judge forbade Morissette’s lawyer to argue to the jury that his client acted with an “innocent intention,” because the judge concluded that Morissette’s guilt under the statute was obvious and legally irrefutable: the bomb casings were on government property, and Morissette took them without permission. It was irrelevant that Morissette might have reasonably believed the casings were abandoned property, or even that this belief was based upon the government’s own failure to post a notice to the contrary. The question of whether Morissette believed he was not stealing, and of the government’s complicity in giving him that impression, did not matter.