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Three Felonies A Day: How the Feds Target the Innocent

a book by Harvey Silverglate

(our site's book review)

Prosecutors Can Pin Arguable Federal Crimes on Any One of Us

The Amazon blurb says that The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague.

In Three Felonies A Day: How the Feds Target the Innocent, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. The volume of federal crimes in recent decades has increased well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of vague and exceedingly complex and technical prohibitions to stick on their hapless targets.

The dangers spelled out in Three Felonies A Day: How the Feds Target the Innocent do not apply solely to “white collar criminals,” state and local politicians, and professionals. No social class or profession is safe from this troubling form of social control by the executive branch, and nothing less than the integrity of our constitutional democracy hangs in the balance.

Any one of us can land here at any time—and it makes no difference if we have done anything wrong or not
Any one of us can land here at any time—and it makes no difference if we have done anything wrong or not

Prosecutors, as Our Laws Expanded, Grew More Inclined to Bring Criminal Charges for Innocent Deeds

As Silverglate says, "The dangers posed by vague laws, relatively rare in modern state criminal statutes, are greatly exacerbated in the current federal criminal code. Such federal statutes have been stretched by prosecutors, often with the connivance of the federal courts, to cover a vast array of activities neither clearly defined nor intuitively obvious as crimes, both in commerce and in daily life. [See A Rage to Punish]

"I also began to notice that, as these bodies of law expanded, federal prosecutors grew more inclined to bring criminal charges for deeds that, at most, constituted arguable (sometimes barely arguable) civil offenses. Thus, they raised reasonably contestable federal questions that a federal court, in a civil proceeding, should have been allowed to resolve. The citizen, if wrong, would have to pay a price measured in dollars; and once the clear meaning of the statute or regulation was established, the citizen would be expected to adhere to it, next time on penalty of criminal indictment and conviction. I naively assumed that the federal courts would, by and large, insist that citizens be charged with crimes only when there was adequate notice of what constituted the crime.

"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."

Judge: Guilty! You may not have done anything wrong, but these prosecutors have quotas to meet and if I don't play ball I get bags of burning dog doodoo on my front steps
Judge: Guilty! You may not have done anything wrong, but these prosecutors have quotas to meet and if I don't play ball I get bags of burning dog doodoo on my front steps

Assembly-Line Justice isn't Fair, or Justice—It's Prosecutorial Overreach

So the imperative to obtain convictions at all costs prevailed. It wasn't justice. It wasn't fair. It pushed civil matters into criminal courts needlessly. The federal criminal justice machine has become what the author calls a crude conviction machine rather than a mechanism of truth and of justice. The Justice Department has become the Injustice Department and we're in danger—unless they are reined in—of them turning all civil crimes into criminal ones which the author considers a danger to the nation as a whole. Wrongful prosecution of innocent conduct due to prosecutorial overreach has wrecked many careers, lives, and families. Corporations have been turned against employees, reporters have been turned against confidential sources, artists have been subject to merciless harrassment, lawyers have been turned against clients, doctors against patients, etc.

Lawyers for prisoners in the Gantánamo Bay, Cuba, where 'war on terror' suspects were held were intimidated by the government for representing these prisoners—this is to be expected in Russia, but not here in the USA
Lawyers for prisoners in the Gantánamo Bay, Cuba, where 'war on terror' suspects were held were intimidated by the government for representing these prisoners—this is to be expected in Russia, but not here in the USA

Lawyers for prisoners in the Gantánamo Bay, Cuba, where "war on terror" suspects were held were intimidated by the government for representing these prisoners—to be expected in Russia, not here in the USA.

Investigative journalists could be the heroes of the day if they'd bother to check out the flood of convictions: rather than showing that the U.S. is awash in criminals, it shows all too often that we are instead awash in prosecutor overexuberance
Investigative journalists could be the heroes of the day if they'd bother to check out the flood of convictions: rather than showing that the U.S. is awash in criminals, it shows all too often that we are instead awash in prosecutor overexuberance

Sentencing and testimony deals need to be much better investigated by journalists, since innocence has become irrelevant as everyone takes deals and pleads guilty so as not to face egregious sentences. Investigative journalists could be the heroes of the day if they'd bother to check out the flood of convictions. Rather than showing that the U.S. is awash in criminals, it shows all too often that we are instead awash in prosecutor overexuberance. Could it be they are afraid to rock the boat for fear of ending up jailed on trumped up charges themselves?

The author warns that with all this prosecutor overexuberance afoot, we should not ask for whom the bell tolls—it tolls for us
The author warns that with all this prosecutor overexuberance afoot, we should not ask for whom the bell tolls—it tolls for us

Judges are part of this systemic corruption, often pretending to believe witnesses whose testimony has been manipulated under enormous pressure. Judges should quit trying to please the Department of Justice and begin instead to please the cause of justice. The author warns that with all this prosecutor overexuberance afoot, we should not ask for whom the bell tolls—it tolls for thee.


The Danger Is That Prosecutors Target a Person and Then Try to Find a Law He May Have Broken

"Boston civil-rights lawyer Harvey Silverglate argues that over the past several decades the federal government, relying on vague, dangerously elastic statutes, has criminalised a whole range of activities. The result, Silverglate contends, is that people are regularly sent to prison for crimes they hadn't even known they'd committed. . . . Silverglate traces these practices back a half-century, to a time when federal prosecutors began departing from the common-law tradition that you can't convict someone of a crime unless there is criminal intent. The danger, warned supreme-court justice Robert Jackson in 1952, was that prosecutors would target a person and then try to find a law he may have broken – not a difficult task, he noted, given the 'great assortment of crimes' on the books. Such targeting is compounded, Silverglate argues, by the practice of pressuring lesser targets to plead guilty and rat out higher-ups, knowing full well that the more florid the tale of wrongdoing, the more likely they are to receive a lesser sentence." (Source: The wrong arm of the law, Dan Kennedy, The Guardian)

Silverglate contends that people are regularly sent to prison for crimes they hadn't even known they'd committed
Silverglate contends that people are regularly sent to prison for crimes they hadn't even known they'd committed

The Author Also Bemoans That Universities Have Become the Enemy of a Free Society

"Education and rehabilitation encourage personal development and independent decision-making, [on the other hand] thought reform reduces personal authority to bring about obedient compliance." (Source: Manipulated Thinking, Open Minds Foundation)

Universities still set themselves apart from American society, but now they do so by enforcing their own politically correct worldview through censorship, double standards and a judicial system without due process
Universities still set themselves apart from American society, but now they do so by enforcing their own politically correct worldview through censorship, double standards and a judicial system without due process

The author dared to suggest eliminating speech codes on the Harvard campus. In his and Alan Charles Kors' book The Shadow University: The Betrayal Of Liberty On America's Campuses, Harvey A Silverglate and Kors said that universities still set themselves apart from American society, but now they do so by enforcing their own politically correct worldview through censorship, double standards and a judicial system without due process. Faculty and students who threaten the prevailing norms may be forced to undergo 'thought reform.' In a surreptitious about-face, universities have become the enemy of a free society, and the time has come to hold these institutions to account.

The Shadow University: The Betrayal Of Liberty On America's Campuses is a stinging indictment of the covert system of justice on college campuses, exposing the widespread reliance of kangaroo courts and arbitrary punishment to coerce students and faculty into conformity. Authors Alan Charles Kors and Harvey A. Silverglate, staunch civil libertarians and active defenders of free inquiry on campus, lay bare the totalitarian mindset that undergirds speech codes, conduct codes, and 'campus life' bureaucracies, through which a cadre of deans and counselors indoctrinate students and faculty in an ideology that favors group rights over individual rights, sacrificing free speech and academic freedom to spare the sensitivities of currently favored groups. All lovers of liberty are in the authors' debt for this book.

Faculty and students who threaten the prevailing norms may be forced to undergo 'thought reform.' In a surreptitious about-face, universities have become the enemy of a free society, and the time has come to hold these institutions to account
Faculty and students who threaten the prevailing norms may be forced to undergo 'thought reform.' In a surreptitious about-face, universities have become the enemy of a free society, and the time has come to hold these institutions to account

If you look at the fact that prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior, then you can also see why staunch civil libertarians like Silverglate and Kors are up in arms about it. The totalitarian mindset that has spread like a cancer on campuses seems to have similarly influenced prosecutors to play God with suspects' lives—regardless of their innocence. In both cases the regard for democratic freedoms has been tossed into the crapper, the Constitution ignored, and citizens end up at the dirty end of the stick.

The Cato Institute is a public policy research organization — a think tank — dedicated to the principles of individual liberty, limited government, free markets, and peace. It says Silverglate's book is a stinging indictment and exposure of injustices and coerced conformity on college campuses. It says The Shadow University: The Betrayal Of Liberty On America's Campuses "offers a legal, strategic, and moral blueprint for restoring liberty at our colleges and universities." The other book that advocates restoring liberty and justice is Three Felonies A Day: How the Feds Target the Innocent, which wants these things in the federal criminal justice system.

The Cato Institute is a public policy research organization — a think tank — dedicated to the principles of individual liberty, limited government, free markets, and peace—like Harvey Silverglate is
The Cato Institute is a public policy research organization — a think tank — dedicated to the principles of individual liberty, limited government, free markets, and peace—like Harvey Silverglate is

The Soviet Communists Used to Say “Show Me the Man, and I Will Find You the Crime”—Now the U.S. Is Doing It

Soviet communism had the arrogant tyrannical attitude, courtesy of Stalin’s head of the secret police, “Show me the man, and I will find you the crime.” Freedom was a joke. Once the USSR collapsed, we all hoped Russia would move toward freedom. They ended up moving toward capitalism of the type where corrupt oligarchs rule via a kleptocracy. Power in Russia’s authoritarian political system is concentrated in the hands of President Vladimir Putin. With loyalist security forces, a subservient judiciary, a controlled media environment, and a legislature consisting of a ruling party and pliable opposition groups, the Kremlin is able to manipulate elections and inhibit genuine opposition. The country’s rampant corruption is one notable threat to state power, as it facilitates shifting links among bureaucrats and organized crime groups. Dissenting is an unhealthy activity in Russia—journalists who won't toe the party line end up beaten or killed. There is some freedom, but freedom of movement, religion, association, assembly, and civil rights in general are seriously oppressed by the Kremlin. Freedom is once more a joke.

Vladimir Putin (2017-07-08) (cropped)
Vladimir Putin

Freedom House says about the USA that "Media reports and analyses in recent years have drawn new attention to the extensive use of plea bargaining in criminal cases, with prosecutors employing the threat of harsh sentences to avoid trial and effectively reducing the role of the judiciary" (Source: Freedom in the World 2018, Freedom House)

Does the bias and dysfunction in the criminal justice system mean that, like Russia, we operate our justice system so that “Show me the man, and I will find you the crime” is the prosecutorial motto? Unfortunately, it is U.S. prosecutors' motto. Recently, innocent people are learning the dangers posed by vague laws, which are greatly exacerbated in the current federal criminal code and eagerly exploited by prosecutors so that once a person is charged by the feds, they're virtually guaranteed a conviction because of a corrupt plea bargaining system. This is so much easier than doing the work of evidence gathering, and it is enormously more efficient. Unfortunately, the money saved from this slick, assembly-line justice isn't enough to offset the money it costs to house people in prison who are innocent, or to house people in prison for a civil crime that could have easily been handled civilly.

Plea bargaining has turned into a sport, with often innocent victims threatened with long sentences so they'll be forced to accept the 'bargain' of a shorter one. Relatives threatened with indictments is often the last straw, forcing suspects to cave
Plea bargaining has turned into a sport, with often innocent victims threatened with long sentences so they'll be forced to accept the 'bargain' of a shorter one. Relatives threatened with indictments is often the last straw, forcing suspects to cave

Michael Milken's Unfair Prosecution Was the Department of Justice's Major Assault on the 1980s "Decade of Greed"

Michael Milken was an example of the authors' point which they went into detail about in Three Felonies A Day: How the Feds Target the Innocent. Giuliani's political ambitions led to egregious prosecution of Mlken. Lowell Milken (the brother) was included in Michael Milken's 1989 indictment for trumped up charges. Adding Lowell to the mix seemed diabolically calculated to pressure Michael to cut a deal rather than challenge the government's claim that Milken's Drexel deals were in any way criminal. The Michael Milken prosecution was the Department of Justice's major assault on the "decade of greed" in the late 1980s and early 1990s. Milken was a target of opportunity for federal prosecutors. To some, it would seem like jealousy on the part of political players about the huge salaries raked in by some in the business world that made politicians' salaries seem like chump change.

The Michael Milken prosecution was the Department of Justice's assault on greed, but also an expression of their jealousy over Milken's great wealth
The Michael Milken prosecution was the Department of Justice's assault on greed, but also an expression of their jealousy over Milken's great wealth

Silverglate Has Fought Against Unjust Authority and for Civil Liberties through Five Decades

"As an attorney, he [Silverglate] 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: How the Feds Target the Innocent. Indeed, some of the pivotal cases he describes are ones that he litigated.

Vietnam War protestors at the March on the Pentagon
In 1969, Silverglate was trial counsel for students charged during an anti-Vietnam war protest

"And, so, Three Felonies A Day: How the Feds Target the Innocent 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." (Source: Three Felonies a Day reviewed by Wendy McElroy, Wendy McElroy)

"According to Silverglate, prosecutors exert their power in order to impose their own ethics and standards on society and also to fulfill personal ambition. Their tools are vague laws originally passed to combat organized crime; and newer federal laws which are poorly crafted and vague; as well as the massive body of federal civil regulations which prosecutors bootstrap into federal crimes. As a result, federal drug agents have supplanted the medical profession's standards of care with their own, companies' normal business practices are spun as crimes, and innocent people are crushed." (Source: Three Felonies a Day: How the Feds Target the Innocent by Harvey A. Silverglate, Jerri Lynn Ward, Chalcedon)

The DOJ seems to have gone mad, jailing everything that walks and half the things that crawl
The DOJ seems to have gone mad, jailing everything that walks and half the things that crawl

Corrupt Courts Allow People to Get Jailed for Actions They Had No Way of Knowing Were "Illegal"

"'We all know ignorance of the law is no excuse. If you violate a law, you suffer the penalty for it,' [historian David] Barton said. 'If you take the U.S. code as it exists right now, today, if you read 700 pages a week of the U.S. code, national calculations are that you can finish the U.S. code in only 25,000 years.'" (Source: David Barton Explains How You Could Be Committing Three Felonies a Day, Erica Ritz, The Blaze)

Oh good, only 24,999 years to go to read all the laws
Oh good, only 24,999 years to go to read all the laws

"Over the last couple decades, federal prosecutors have increasingly used broad, vaguely worded statutes to target individuals and institutions they want to take down, ranging from Michael Milken to Arthur Andersen. No one is immune, and given the crippling potential prison sentences, people are forced to settle even if they are innocent." (Source: Booked: Harvey Silverglate on Three Felonies A Day, Michael Noer, Forbes)

Three Felonies A Day: How the Feds Target the Innocent guides the reader through the realities of a DOJ gone mad, jailing everything that walks and half the things that crawl. The book gives great examples of justice gone wrong, where overreaching prosecutors have contests to see who can imprison the most people. Plea bargaining has turned into a sport, with often innocent victims threatened with long sentences so they'll be forced to accept the "bargain" of a shorter one. Relatives threatened with indictments is often the last straw, forcing suspects to cave. The worst part of this is that our corrupt courts allow people to get sent away for actions they had no way of knowing were illegal, and sometimes they weren't even illegal at the time the action was performed. Talk about having the deck stacked against you!