The Pequod Review:
Harvey Silverglate's Three Felonies a Day traces the significant expansion of the federal criminal code, which has now become so vague and boundless that otherwise law-abiding citizens are likely committing multiple crimes every day without even being aware of it. This may not seem like a big deal ("surely it wouldn't be used against me...") but it has given prosecutors a valuable tool that can be used to persuade even innocent people to plead guilty to lesser crimes:
The trend of ambitious prosecutors exploiting vague federal laws and pursuing criminal charges instead of oftentimes more appropriate civil actions, something that they could not readily get away with in many state courts, has been alarming enough, but it’s not the whole story. Indeed, the threat posed by federal prosecutors has become a veritable perfect storm lately, due to the convergence of this trend with the commonplace legal tactics that these prosecutors wield in order to get convictions in the vast majority of cases. Prosecutors are able to structure plea bargains in ways that make it nearly impossible for normal, rational, self-interest calculating people to risk going to trial. The pressure on innocent defendants to plead guilty and “cooperate” by testifying against others in exchange for a reduced sentence is enormous—so enormous that such cooperating witnesses often fail to tell the truth, saying instead what prosecutors want to hear...
Thus, more and more innocent conduct gets swept into the category of crime—not by legislatures, and only secondarily by judges and juries, but primarily by these dangerous and altogether too common prosecutorial practices. The problem is exacerbated by a white collar criminal defense bar composed largely of former federal prosecutors turned defenders who, by virtue of their experience in the federal government, well understand the risks of going to trial and therefore stress to their clients the benefits of cooperation over confrontation and the increasingly less likely prospect of vindication. While some former prosecutors turn into vigorous and skeptical defense lawyers (a few are among the most talented and principled in the nation, some of whom even left their prosecutorial jobs out of revulsion at the modern practices of the Department of Justice), a culture of assumed guilt, plea-bargaining, and deal-making has developed in defense circles which, more and more, are populated by capitulation-prone former prosecutors, especially at the higher echelons of the profession. The name of the game is to confess and cooperate, thus pleasing prosecutors who, in the not-too-distant past, were the comrades-in-arms of the newly-minted defenders. Through this flawed process, ordinary conduct is increasingly deemed criminal without the benefit of critical examination, much less an adversarial testing of the DOJ’s often pioneering interpretations of federal law.
As an example, Martha Stewart's conviction was based entirely on the federal false statement statute which makes it a felony to lie to a federal officer on any matter deemed "material" to that agency's mission:
If a "man on the street" survey were conducted asking what crime home decor maven Martha Stewart ending up spending five months in federal prison for, the answer would likely be "insider trading." That, however, would be wrong. Insider trading was merely the crime for which she and her Merrill Lynch stockbroker were investigated, and for which the Securities and Exchange Commission sued her civilly. Because these days no lawyer, no judge, and surely no home decor maven can readily discern the boundaries of what qualifies as insider trading, prosecutors looking to pin a criminal rap on Stewart took advantage of her fears that her trading ImClone shares might indeed have been criminal. They focused on her answers to their questions when they interviewed her and ended up charging her with making false statements to federal authorities and a host of other "obstruction" crimes...
It was not an accident that Stewart stumbled into a false statement prosecution. One of the oddest features of federal criminal law is that, while it is the felony of perjury to lie when under oath, it is likewise a felony to lie even when not under oath. It is the counterintuitive nature of the federal false statement statute that makes it such an effective snare for the unwary citizen.
The growth of these laws may seem tolerable now but they have the potential to become much more threatening.