Magazine | October 5, 2009, Issue

Power Grabs

Three Felonies a Day: How the Feds Target the Innocent, by Harvey A. Silverglate (Encounter, 350 pp., $25.95)

Early in U.S. history, the Supreme Court made a momentous decision that remains our most important protection from the abuses of criminal law: It rejected a federal common law of crimes that would have authorized judges to punish the misconduct that they believed endangered social order. Only the legislature, not the judiciary or the executive, could create new offenses. This constitutional requirement ensured both that society’s representatives would deliberate before criminalizing a new category of behavior and that citizens would possess adequate notice before being subject to the awesome rigors of criminal justice. 

In essence, the thesis of attorney Harvey Silverglate’s new book is that modern law enforcement is reviving a common law of crimes in a new guise. Because federal criminal statutes have become so vague and all-encompassing, they permit prosecutors to create new offenses and persecute citizens who had little reason to know that they were committing any offense. This development is even worse than the old common law of crimes, because prosecutors are more likely than judges to be motivated by politics and not by the public interest. 

Two kinds of statutes, in particular, arouse Silverglate’s ire. Complex regulatory regimes often contain ambiguous concepts that prove traps for the unwary. For instance, the Food and Drug Administration permits doctors to prescribe off-label uses of pharmaceutical drugs, but prohibits manufacturers from promoting these uses. According to Silverglate, prosecutors indicted a doctor who advocated applying a particular drug to many diseases, including depression, although the drug had been approved only for narcolepsy. Because the doctor touted the drug’s multiple uses at conferences sponsored by its manufacturer, prosecutors argued that he was conspiring with the manufacturer in violation of the regulatory prohibition.

Silverglate also suggests that mail- and wire-fraud statutes sweep with a breadth limited only by a prosecutor’s creativity. Silverglate focuses on the case of Steven Kurtz, an avant-garde artist who used harmless bacteria as part of his artwork. According to Silverglate, Kurtz received the bacteria from the chairman of a university biology department — and prosecutors said this was an act of fraud, because he used the material in violation of the contract with the department’s supplier, which limited the bacteria’s use. 

Silverglate is to be commended for highlighting another potential danger of the modern administrative Leviathan. Congress today often enacts only vague mandates, delegating to bureaucrats the responsibility for implementing the all-important details of regulatory schemes. This development is troubling enough when unelected officials acquire the discretion to regulate businesses under confusing and ever-changing rules. It is truly terrifying when those bureaucrats are federal prosecutors who threaten ordinary citizens with jail under regulations that are opaque and ephemeral. 

Unfortunately, Silverglate’s book suffers from a few flaws that make it difficult to gauge the extent of the problem he outlines. First, his approach is purely anecdotal, with details from about a score of cases. It is not clear how representative they are, and a vast republic like ours will always encompass some outrageous overreaching. Indeed, in  a few of his own examples, trial or appellate courts terminated with prejudice these misbegotten prosecutions. A trial judge dismissed that eccentric art professor’s indictment, because he could not find conduct that rose to the level of fraud.

Moreover, in some of the recounted cases Silverglate himself acted as defense counsel. Even with the best will in the world, a lawyer cannot assess his own cases objectively, particularly when he lost. And in describing other cases, Silverglate has a habit of making claims that would convince only the fraternity of defense lawyers. For instance, he argues that because a civil-rights law concerning redistricting requires plaintiffs to prove only discriminatory “effects,” not the discriminatory “intent” of those responsible, a Massachusetts house speaker’s lies about his reasons for redistricting were not material to a civil case on the subject, and the speaker could not be subject to a perjury charge in a subsequent criminal proceeding. But the intent of a public official bears directly on the likely effects of his action. Silverglate’s claim that the speaker’s statements were not material is even less persuasive than Bill Clinton’s claim that his lies about Monica Lewinsky were not material to Paula Jones’s sexual-harassment case. 

Silverglate also conflates his justified concern about lawless prosecutions with unrelated and less warranted complaints. For instance, he devotes much of a chapter to attacking decisions by prosecutors to require reporters to testify about their sources. But the demand that citizens give evidence in criminal investigations applies in cases where the criminal law is clear. And the proposition that the press should not have privileges unavailable to others advances equal justice no less than the proposition that prosecutors should not enjoy discretion under vague statutes to pick and choose whom to prosecute.

Silverglate also does not offer many specific solutions to the dangers he exposes, beyond exhorting prosecutors, judges, and legislators to stop creating and using vague criminal statutes. In his lucid introduction, Harvard law professor Alan Dershowitz does hint at a structural solution: An independent official, rather than a political appointee such as the attorney general, should supervise federal prosecutions. But this scheme has its own defects. An official directly accountable to an elected president needs to be responsible for deciding how to allocate limited resources among the many possible areas of federal law enforcement. Moreover, as the so-called independent-counsel law showed, it is difficult, if not impossible, to eliminate political influence simply by making a prosecutor “independent.”

In my view, some specific solutions are in fact available. For all criminal statutes, the courts should rigorously apply the rule of lenity that requires that ambiguous statutes cannot serve as the basis for prosecution. The Supreme Court may itself be moving in this direction. For those criminal prosecutions dependent on federal regulations, courts should require a clearer connection between the crime and the underlying regulatory statute than they do for civil matters. And agencies and Congress should make greater use of civil fines than of criminal penalties to police regulatory malefactions. We need the criminal law in large part to control people who are judgment-proof and completely unconcerned with their reputation in polite society. These concerns are less acute in many regulatory contexts and the need for the criminal penalties, as opposed to substantial civil ones, is correspondingly less. The government should prevent people from harming others, but it should do so through the means that cause the least collateral damage.

– Mr. McGinnis is the Stanford Clinton Sr. Professor at Northwestern Law School.

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