In the fall of 1989 the communist regimes of Eastern Europe collapsed, and two years later the Soviet Union itself was no more, replaced by Russia and a number of newly independent nations. Communism and its accompanying show trials, gulags, and politically oriented prosecutions, along with the faux legal system that undergirded it, supposedly disappeared.
Perhaps the most chilling quote of the Soviet era came from Lavrentiy Beria, Stalin’s head of the secret police, who bragged, “Show me the man, and I will find you the crime.” Surely, that never could be the case in America; we’re committed to the rule of law and have the fairest justice system in the world.
Civil libertarian attorney Harvey Silverglate begs to differ, and his newest book, Three Felonies a Day: How the Feds Target the Innocent, is a frightening reminder that the federal “justice” system in this country seems to have picked up where the Soviets left off. We suffer from a combination of vague, expansive laws, the drug war, and prosecutors who are ruthless, relentless, and who face no consequences for their own lawbreaking. That has turned federal criminal law into a conviction machine, sweeping up the innocent along with the guilty.
The very expansiveness of federal law turns nearly everyone into lawbreakers. Like the poor Soviet citizen who, on average, broke about three laws a day, a typical American will unwittingly break federal law several times daily. Many go to prison for things that historically never have been seen as criminal.
Writing about the Kafkaesque nature of the federal system, Silverglate notes:
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.
This should make everyone fearful. Silverglate declares that federal prosecutors don’t care about guilt or innocence. Instead, many subscribe to a “win at all costs” mentality, and there is little to stop them.
Silverglate is hardly alone in making that accusation. In 1998 Bill Moushey wrote a devastating ten-part series for the Pittsburgh Post-Gazette, “Win at all Costs.” Moushey described the caldron of lies that FBI investigators, prosecutors, and other federal officials regularly tell. Even when it was clear they had no case, prosecutors often soldiered on just to inflict financial punishment on people they targeted.
Paul Craig Roberts and Lawrence W. Stratton recently published a second edition of their book, The Tyranny of Good Intentions, which documented just how bad the federal “justice” system has become. Other writers, including well-known Houston attorney Tom Kirkendall, and a number of people associated with the Cato Institute have joined the growing chorus of critics.
Silverglate’s book first explains how law should work, and then demonstrates how federal law really works as he weaves through dozens of cases showing clear prosecutorial abuse. An ugly, recurrent feature is that prosecutors often manipulate the media. People are prone to believe what officials say about defendants in high-profile cases. Many believed at first that the Duke lacrosse players were guilty of rape, only to find out the entire episode was a hoax concocted by a lying prostitute and a local prosecutor desperate to win an election.
The book recounts a disturbing number of cases documenting how investigators and prosecutors decide on a target, then find a crime to pin on him. For example, Silverglate points out that Michael Milken pleaded guilty to “crimes” that the Supreme Court a few years later would rule were not crimes at all. One of the federal prosecutors in Milken’s case bragged to a group of Rutgers University law students that the prosecutors, led by Rudolph Giuliani, “were guilty of criminalizing technical offenses. . . . Many of the prosecution theories we used were novel. Many of the statutes that we charged under . . . hadn’t been charged as crimes before. . . . We’re looking to find the next areas of conduct that meets any sort of statutory definition of what criminal conduct is.”
It is not stretching the imagination to say that Beria himself would have been proud of the tactics these prosecutors used to get Milken.
Three Felonies a Day is a book worth reading. It challenges the honest “law and order” types who reflexively defend our system of “law enforcement.” It also provides intellectual ammunition to those who argue that the federal government is badly out of control. Indeed, for a country that supposedly prides itself on the rule of law, the idea of channeling the former Soviet Union is both outrageous and tragic.