Harvey Silverglate is a difficult talent to pigeonhole. A combative criminal appellate and trial lawyer, he has dedicated himself to defending civil liberties in their broadest definition. In the process, Silverglate has carved out a special reputation as a scourge of campus-based "political correctness," and has won numerous awards for his long-standing legal and political coverage in the Phoenix.
Now, he has published his second book, Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, $25.95).
Silverglate's thesis is as provocative as it is simple: justice has become sufficiently perverted in this nation that federal prosecutors, if they put their minds to it, could find a way to indict almost any one of us for almost anything. It is a truly radical notion.
Silverglate presents a series of freestanding case studies that range from Wall Street to the Massachusetts State House, to Boston City Hall, to a suburban doctor's office, to a Midwest university, to the newsroom of the New York Times.
At this curious moment in history, Silverglate's book might not shock either the left or the right. For some time now, the two opposing wings of the American centrist polity have been alarmed by the predatory nature of our national government. For those in the middle of the political spectrum, however, Silverglate's book should be a bracing wake-up call. Liberty and freedom are being compromised, one prosecution at a time.
Your book was written during the Bush years. But now, Barack Obama is president. Why should the concerns you lay out inThree Felonies a Daystill be on progressive minds? The big, bad Bush Republicans are gone.
You raise an interesting point. A lot of my liberal friends assume that my book is about prosecutions under the eight years of Bush. This, however, is not a phenomenon that is relegated to any particular political party. The abuses are found under every president from Reagan to today.
Including Clinton and Obama?
Under Clinton, yes. And I see little reason to think that they will not continue under Obama.
Pinpoint when prosecutors began running amok.
The mid 1980s. That's when I began to notice this phenomenon. I have been a criminal-defense and civil-liberties lawyer from 1967 onward, so somewhere short of two decades into my legal career is when I noticed this problem.
We have an independent legal profession, trial by jury, an insulated judiciary. How great can the problem really be?
The problem with the independent judiciary is that an enormous number of federal judges have been co-opted by federal prosecutors. It's the taking of activities that the normal, average person would not consider to be criminal and squeezing it somehow into the definition of crime. Prosecutors take advantage of vagueness in the law and too many judges let them get away with it. The real problem is this: only a small, tiny, infinitesimal number of these prosecutions are actually challenged to the point where the judge has to really put on his or her thinking cap and think critically about whether the conduct laid out is criminal, and in only an infinitesimal number of cases do defense lawyers really understand this problem. If they did, there would be more challenges to indictments with motions to dismiss.
Why is this so?
Because since the mid 1980s federal sentences have been ratcheted up by unreasonable and unconscionable factors. Crimes that might have been punishable by up to a year or two previously now can get you 20 years, 25 years. The federal government recommends these enormous sentences, and judges, playing the lackey, I'm ashamed to say, often impose these sentences.
Now, all a judge has to do is impose a 25-year sentence on a confessed or convicted criminal, and suddenly thousands of people under investigation take deals offered by prosecutors and recommended by their own lawyers, to plead guilty to a lesser offense with a recommendation for a lesser sentence. Then they testify against others in their companies or in their circles. That way you get this self-perpetuating cycle, where the government has an endless supply of witnesses and — as Alan Dershowitz puts it in his classic formulation — "The government teaches these witnesses not only how to sing, but how to compose." Witnesses faced with brutal sentences don't necessarily tell the truth. They tell prosecutors what they want to hear.
In other words, the safeguard of trial by jury is negated in a nasty way by what is, in effect, justice by bureaucracy, justice by coercion.
If that's the case, then the federal government is sponsoring its own brand of white-collar extortion.
Yes. Typical prosecutorial conduct often compromises the quality of justice and threatens the constitutional rights of us all: on the right, the left, and in the center.
Authoritarianism disguised as due process?
That [chuckling] is a rather tepid way to put it.
You began your career as a crusading, left-wing lawyer. Why do you evince such sympathy for Arthur Andersen, the big accounting firm?
Three Felonies a Day: How Feds Target the Innocent | By Harvey Silverglate | Encounter Books | 323 pages | $25.95
I was considered, and am still considered by those who know me and follow my work closely, as a liberal of the left. I haven't changed my politics. Whether for better or worse, I'm pretty much the same person I was back when I started in 1967.
Liberalism has changed a lot. When I was a young liberal, the left was very reliably in favor of free speech and due process. Now, you get a lot of people on the left who suddenly are prepared to endorse censorship in the name of avoiding harassment for what they call historically disadvantaged groups. You have groups on the left who are prepared to waive due process if it means getting the people that they really want, like CIA interrogators and torturers. I don't believe in cutting down all the trees in the legal forest just to find the devil hiding behind one of them. I am a firm believer that if we do that for anybody, then all of us are endangered, becauseyou set a precedent every time you pursue somebody, and that precedent can very easily turn around and whack us.