on 8 November 2010
The product description of this book on amazon.com (the US site) starts by claiming 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". So I was keen to find out what crimes these might be, that ordinary people were unconsciously committing in such profusion. Sadly, that is something you cannot learn by reading this book. As far as I can ascertain, there is literally no mention of "three crimes a day" or anything similar on any of its pages, from the foreword by Alan M Dershowitz to the index. The quotes published on the book's jacket are much more accurate: "Now comes veteran defense lawyer and civil libertarian Harvey A. Silverglate... exposing... a pattern of serious abuses and convictions of innocent people in some of the most famous (as well as obscure) federal cases of recent decades"... "...Silverglate has written a work peerless in revelations about the mad expansion of federal statutes whose result is to define, as criminal, practices no rational citizen would have viewed as illegal..."..."...federal prosecutors have conceived of something truly frightening - punishment without crime..."
Although the book is bound to disappoint anyone looking for a lurid expose of how no decent citizen is safe from the US justice system, it is a valuable and well-written critique of some recent trends in that system. In particular, Silverglate calls attention to Congress' habit of drafting and approving vague laws that can be interpreted in a wide variety of ways depending on the beliefs and attitudes of prosecutors, judges, and juries. He also denounces the growing tendency of prosecutors to intimidate defendants by a combination of vague charges and the threat of truly savage sentences, inducing them to plea bargain - being assured of a definite, relatively light sentence instead of a potentially crushing one. In return, the defendants are forced to testify against other, more important defendants, and so on indefinitely. It is well-known that 90% of criminal cases in the USA are already settled by plea bargain rather than by jury trial. The trouble is that there are so many laws, some of whose provisions are so vague and potentially all-encompassing, that prosecutors can threaten defendants by bringing forward lengthy indictments and calling for commensurately draconian sentences. Unsure of the outcome of a trial, the defendant usually agrees to "full cooperation" and thus becomes part of the prosecution team in its case against the next defendant. As an example of how easy it is to fall foul of federal laws, the author explains that Martha Stewart was imprisoned for five months, not for insider trading as commonly thought, but for making false statements to federal authorities and "a host of other obstruction crimes". In fact, she was never guilty of insider trading, as what she did was perfectly legal. Unfortunately for her, she was unsure of her ground, and so chose to lie to investigators. So she was imprisoned for that!
The Stewart case is a good example of another trend that Silverglate deplores: prosecutors who pick a famous individual or organization and devise plans to "take them down" by whatever means available, rather than (as they should) starting with a crime and prosecuting those who committed it. As chapter followed chapter, I began to feel revulsion for the prosecutors - and also many of their victims, who were often prominent business people and politicians. In a typical case, an ambitious attorney general who wishes to boost his own political career (or that of some associate) sets his sights on a well-known politician and decides to bring him down in any way he can. To do so, he takes advantage of deliberately woolly laws enacted by Congress, popular prejudice against the rich and successful, and general paranoia about crime, dishonesty or even terrorism. After methodical planning, some "small fry" are arrested and threatened with a towering wave of criminal charges. Some of them plea bargain, and are then recruited to give evidence against the next layer - typically their bosses. And so it goes, until the prosecutorial inquisition reaches the person at the top - the mayor, CEO, governor, or whoever it might be. (Admittedly, this approach is sometimes justified: it was just thus that the case against President Richard Nixon was built). First I found myself imagining some tropical ocean scene, with sharks, barracuda, killer whales, giant squid and other carnivorous monsters circling viciously, tearing at one another until the water fills with blood. Later, I saw parallels with the Spanish Inquisition - in which informers made a good living out of denouncing harmless victims, who were tortured until they denounced others, who were then tortured... with the state and the informers dividing the rich proceeds.
Starting with an Introduction in which he sets the scene, Silverglate moves on to chapter 1 which deals with the prosecutions of four prominent local politicians: Raul Martinez, mayor of Hialeah in Florida; Kevin White, mayor of Boston; Alabama Governor Don Siegelman; and former Massachusetts House of Representatives Speaker Thomas Finneran. In passing, he mentions that between 2001 and 2007 the Department of Justice (DoJ) opened investigations into seven times more Democratic public officials than Republicans. The odds of this happening by random chance are less than 1 in 10,000. Chapter 2 deals with the delicate issue of regulating the prescription of narcotic drugs by doctors. As part of the federal "war on drugs", the Drug Enforcement Agency (DEA) has acquired a frightening array of legal powers, which have deterred doctors from prescribing adequate pain-killing medication to the dying, sufferers from cancer, and others who need them. Silverglate outlines the case of Dr Hurwitz, who was imprisoned for 57 months because some of his patients had lied to him to obtain more narcotics than they really needed. Among other things, he notes that fewer than half of those suffering frequent pain get enough relief after seeing a doctor - and that as many as 16,500 Americans bleed to death each year because they have been forced to resort to anti-inflammatory drugs instead of narcotics. Chapter 3 turns to the pursuit of companies marketing medical devices and drugs, pointing out the impossibility of getting a jury (and sometimes, even a judge) to understand the impenetrable thicket of regulations imposed by the Food And Drug Administration (FDA). Corporations usually do whatever prosecutors ask of them - including pleading guilty to any and all charges - because the FDA can debar them from doing business, effectively destroying them.
In chapter 4 Silverglate moves into more contentious territory, tenaciously defending the disgraced financial wizard Michael Milken whose income soared to over $500 million a year in 1987. Contrary to popular opinion (shaped by mass media happy to follow the government line), he maintains that Milken did nothing illegal - although his meteoric success and unorthodox methods upset many establishment figures. The lead prosecutor in this case was Rudy Giuliani who - on the back of this and other famous cases - later became mayor of New York. Although Milken agreed to plead guilty to six felony counts and pay $600 million - to protect his brother Lowell, according to Silverglate - University of Chicago Law Dean Daniel Fischel later determined that all of the six counts to which Milken pleaded guilty "described perfectly lawful transactions"! Chapter 4 also details the prosecutions of CSFB employees, Martha Stewart, and Enron employees such as Kenneth Lay and Jeffrey Skilling. While admitting that Enron grossly exaggerated its financial health and prospects, Silverglate alleges that the specific charges brought against it did not hold water, and that the information it supposedly kept secret had in fact been openly published. In chapter 5, he shows how the technique of "starting at the bottom" by inducing junior employees to plea bargain was extended to the corporate level - for instance, how the case against Enron was developed by forcing its auditor Arthur Andersen to cop a "corporate plea bargain" that brought it solidly into the prosecuting camp (and wiped it out as a business entity). Remarkably, it turns out that auditing and accountancy firms can easily be brought to heel by the DoJ, as merely being indicted in a criminal case would be enough to put them permanently out of business.
Chapter 6 recounts how the DoJ took on the American Bar Association (ABA) - the biggest lawyers' organization in the USA, with over 400,000 members. As an appetizer, Silverglate describes the unenviable dilemma of attorney Philip Russell, who found that the local church (a legal client of his) owned a laptop on which one of its employees had stored child pornography. Such "contraband" is always illegal to possess, and there is no defence. Yet Russell could not turn the laptop in to police without betraying the confidence he owed to his client, the church - which in any case had done nothing wrong. So Russell destroyed the laptop. Unfortunately for him, the feds were already on the case and successfully prosecuted him for destroying evidence! Chapter 7 finally gets round to tackling the legal predicament of the media, which - especially since 2001 - has risked being accused of espionage or the like if it publishes material embarrassing to the authorities. And chapter 8 is memorably entitled "National Security: Protecting the Nation from Merchants, Artists, Profesors, Students and Lobbyists for Non-Profits?"
In his Conclusion, Silverglate makes some uncontroversial and reasonable suggestions. He begins in ringing tones: "Creativity and inventiveness are honored and valued in many areas of life. Crafting innovative legal theories to ground criminal prosecutions should not be one of them". He insists that the law should be clear and easily understood, and that citizens should always be able to know whether a given act is legal or illegal so that they can be sure of staying on the right side of the law at all times. What Congress may have intended is quite immaterial: the letter of the law should be what counts. For "...all the procedural rights in the world," he notes, "are for nought if the defendant is unable to understand what it is for which he or she stands indicted".