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Harvey Silverglate has written a book, Three Felonies a Day: How the Feds Target the Innocent, in which he claims, according to the Amazon blurb:

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 not only exploded in number, but, along with countless regulatory provisions, have also become impossibly broad and vague.

This claim has received some press recently when conservative intellectual Dinesh D'Souza invoked it to explain why he had been charged with violating campaign finance laws. Silverglate has a web site where he lists some laws that he claims the average person might violate unwittingly.

Is it true that the average American unwittingly commits three felonies a day?

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Anecdotally, the examples on the linked site - while they may be felonies - seem highly unlikely to happen to a single person three times a day. If those are the best examples he can come up with, I'd say this is hyperbole at best. –  Geobits Jul 25 at 15:13
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@Geobits - I just posted an answer specifically diving into that issue with the items from his book. Conclusion: None of these affect the "average professional". –  Bobson Jul 25 at 20:07
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The word "average" could also be misleading. For instance, if there were a few hundred people who each committed several million felonies a day (which is entirely possible), this assertion could be literally true even though the vast majority of people might commit no felonies at all. –  Nate Eldredge Jul 26 at 18:31
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I doubt that the blurb is Silverglate's own writing. His own site makes clear that he's talking about "arguable felonies", meaning things that the feds could decide to prosecute you for, rather than "felonies", meaning things that you should actually be convicted of. –  ruakh Jul 27 at 4:36

2 Answers 2

up vote 22 down vote accepted

TL;DR Silvergate's choice of examples to introduce his book does not address the quoted thesis at all (that average professionals unknowingly commit felonies), and thus one can assume the whole book fails to support his thesis.


I skimmed the sections of his book available on Amazon, and didn't see any proof for his claims. Admittedly, this is only a sampling of the book, but the claims he does make don't justify his position. For example, there is a section which begins Consider some of the cases that will be discussed in more detail further on in this book: I'll address each case he lists in this section, under the assumption that these are some of his strongest arguments.

Text double-quoted below is not quotes from his book, but rather my own short summary of what the charge was and a link to a relevant news article or Wikipedia.

Case #1

A lawyer was convicted of obstruction of justice for destroying a laptop which had child porn on it which belonged to the former music director of his church. He also pled guilty to knowing about and failing to report the music director's abuse of children. (ref)

Silvergate frames this as being indicted for destroying contraband rather than keeping it, and says "therefore holding, rather than destroying it, arguably would be criminal."

This is really a lose-lose situation for the lawyer, because he knowingly took possession of contraband. Either he's convicted for destroying evidence of a crime (and he was a lawyer, so knew it would be relevant), or he's convicted for possessing it in the first place. (Side note: If he had turned it over, it's unlikely he would have been in any trouble for temporarily having someone else's laptop.) But this is not a common situation, and most people will never encounter it.

Case #2

Michael Milken pled guilty to six counts of securities and tax violations. He may have been pressured to plea instead of fighting the charges by a promise from federal prosecutors not to prosecute his brother, who was indicted with him.

Silvergate claims that one of these six was later ruled (in a trial against someone else in the conspiracy) not to constitute a crime. I don't know which one, and without the full book, I can't research this more.

Case #3

Arthur Andersen & Company destroyed documents related to Enron before receiving a subpeona for them, and was convicted of obstruction of justice. The Supreme Court later reversed this.

Silvergate claims this was the "normal document-retention-and-destruction policy" of the company, which may be true. However, to the best of my knowledge no employees of AA&C were charged for the actions - just the company itself.

Thus, this is one that can't be part of the "three felonies a day".

Case #4

Steve Kurtz was arrested for mail fraud for mailing non-infectious bacteria as part of art exhibit. In 2008, the charge was ruled "insufficient on its face", meaning that the actions were not a crime in the first place.

Silvergate claims this charge was simply a way to justify the time spent investigating Kurtz for bioterrorism due to his art.

This one is irrelevant to Silvergate's argument. Kurtz was convicted for something that wasn't a crime, and thus can't be an example of a felony.

Case #5

I'm not even going to research this one: The DoJ "reportedly looked into" indicting the New York Times for espionage for their reporting of the NSA's warrantless surveillance programs. Since it was just "looked into", there's nothing relevant here. Since it was (again) a company, there's doubly nothing.


This section concludes (actual quote from Silvergate):

These are just a few of the prosecutions in which well-meaning professionals from all walks of life have been charged (or nearly charged) criminally for engaging in activities that most of us - lawyers and laymen alike - would consider lawful, often quite ordinary, and frequently socially beneficial.

However, of the five example he gave, two were companies, one was a willful choice between offenses, and one is indeterminate. In none of these examples does he show why The average professional ... has likely committed several federal crimes that day. All of these are highly unusual circumstances, most of which are not crimes for the people who executed them. It's possible he chose his examples poorly, but an introduction which fails to even address your thesis is a good indication that the thesis won't be addressed sufficiently in the rest of the work.

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One of the reviews on Amazon mentions this, and also says many of the anecdotes he cites are politicians using these "potential crimes" against each other in political maneuvering. Not exactly the sort of thing the title/claim would suggest. –  Geobits Jul 25 at 20:12
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@Geobits - I noticed that in skimming the preview of the first chapter. There's also a lot of civil-rights-era examples where people were arrested for things like protesting. It looks like it could make a great book on the mistakes federal prosecutors make, but that's not how he's trying to sell it. –  Bobson Jul 25 at 20:14
    
Just had a side thought: If knowing about and not reporting a crime is itself a crime, that could, theoretically, account for a large percentage of the "three crimes a day per person". But I'm sure that that wasn't what Silvergate intended. –  Bobson Jul 25 at 22:47
    
According to the answer, the section conclusion is that those activities are "activities that most of us - lawyers and laymen alike - would consider lawful". I want to dispute that statement. As a lay person, if I wanted to send biological agents, of any kind, I would first consult with a layer, and not reporting a person that has child porn on their computer is (in my eyes) a heinous crime, also the fact that he knew that the person was abusing kids and didn't report it is in my view as if he took part in the abuse itself (I'm not a US citizen, so not sure if my opinion is relevant). –  Ilya Melamed Jul 27 at 18:04
    
@IlyaMelamed - I totally agree. But if you define the question very narrowly, such that the dichotomy is in the choice between "Do I preserve child porn or destroy it", with no other factors involved, then the "obvious" choice is to destroy it. Nothing ever happens in a vacuum, though, and once you introduce the rest of the context it's clear that even taking possession of it (instead of reporting it) was the problem.... Then the whole thing falls apart. Which is what I did to Silvergate's arguments, and why I never trust a "shock" book like this to be accurate. –  Bobson Jul 28 at 2:10

Conflation of felony with federal crime

Not all federal crimes are felonies 18 U.S.C. § 3559.

Silvergate's hypotheticals

Silvergate presents many hypotheticals that he claims are examples of people unwittingly committing a federal crime. However, in several examples, the fact patterns of the hypothetical differ in potentially material ways from the real life case law that he makes the analogy with.

For example:

  • "clear packaging" vs "clear plastic bags"
  • entering federally-protected wilderness after becoming lost vs entering federally-protected wilderness at an unspecified time
  • calling in sick vs no real life example and a quote from obiter dictum in a dissent
  • etc.

These are false analogies.

Assessing the claim

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

The most generous interpretation would be "The typical professional living in the US commits at least three federal crimes on 51% of days." However, we cannot know whether this is true. We can't count the number of federal crimes committed that go un-caught.

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"However, in several examples, the fact patterns of the hypothetical differ in potentially material ways from the real life case law that he makes the analogy with." — I think you need to expand this part with specifics. –  jwodder Jul 25 at 16:51
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I meant the specifics of how the hypotheticals differ from the case law. –  jwodder Jul 25 at 16:55
    
@jwodder Ah, got it. K. –  user5582 Jul 25 at 16:56
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We cannot reasonably know that it is false, but surely we could know if it was true - by sitting a Federal prosecutor down with 100 professionals and asking about their days. –  Oddthinking Jul 25 at 16:57
    
@Oddthinking The federal prosecutor would not know how the cases would turn out. But in any case, I tried to find an example of this type of estimate being done, but I couldn't fine one. –  user5582 Jul 25 at 16:59

protected by Sklivvz Jul 26 at 9:31

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