Three Felonies a Day: How the Feds Target the Innocent by Harry A. Silverglate (2009). Excellent forward by Alan Dershowitz
.This book was an interlibrary loan book, so I have to take it back without being able to quote much from it. It is well-written and readable if a bit intense and complex. He argues that the laws and other aspects of law, like the Code of Federal Regulations has grown so bloated and extensive that ordinary people break laws and rules and never even know it. Unless, of course, they have done something to draw the Feds attention to themselves, and then the full prosecutorial forces grab onto the most inconsequential detail and use it like a hammer on a nail to take down someone who never INTENTIONALLY broke the law. No one can completely know all of the laws the government has implemented these days, so ignorance of the law should actually be a reasonable defense. And he cites many many cases and circumstances that prove deliberate targeting and selective enforcement.
Probably mostly interesting to lawyers, and activists, the book describes a wide variety of legal bad faith dealing while perhaps following a very ambiguous “letter of the law” that has become worse over time.
In the introduction, Dershowitz points to:
“This chasm between federal and state law had in theory been established long ago, in 1812, when the Supreme Court ruled in a bribery case that federal crimes were ENTIRELY creatures of CONGRESSIONAL STATUTE and not successors to English common law. As a result, Congress in writing statutes, and the federal courts in interpreting them, do not have the full benefit of the common law’s wisdom and experience — with increasingly alarming consequences. As the Supreme Court said in 1985, ‘[W]hen assessing the reach of a federal criminal statute, we must pay close heed to language, legislative history, and purpose in order strictly to determine the scope of the conduct the enactment forbids.’ This judicial exercise, often akin to reading tea leaves, has proven DISASTROUS.
Especially given the nature of Congress in the last 30 years, with very few “clean bills” getting through, i.e. one subject and no riders in content. No, instead, they pass a law saying something about sailboats and some lobbyist gets a puppet to add a line that makes sailboats exempt from some luxury tax (just to make something up for an example).
The deceptively simple exercise of diving congressional purpose in enacting a statue involves, for one ting, a dubious assumption that Congress acts with a single, much less simple, intent. In practice, it is rarely clear what that intent was, since much federal legislation is the result of compromises that often are meant to gloss over GENUINE and sharp differences. For this and perhaps other reasons as well, Congress has demonstrated a GROWING DYSFUNCTION in crafting legislation THAT CAN BE UNDERSTOOD. [!!!!]
As the post-New Deal regulatory and national security state took deeper root during the mid-20th century, the gulf between the defendant-protective common law tradition practiced i the states and the more malleable and PROSECUTION-FRIENDLY federal law grew. More and more, courts departed from Justice Jackson’s insistence on requiring PROOF OF CRIMINAL INTENT to commit a crime, and instead subscribed to the belief that, if the nation is to be kept safe in an increasingly dangerous world, law violations MUST NOT BE ALLOWED to slip from the government’s net, even when the law’s prohibitions could not be understood with precision.
Indeed, this was probably a feature of federal statues, not a bug.
The danger posed by vague federal statues was obvious to me, in part because I came of age during the era of anti-Jim Crow racial struggles in the American South. In what I now see is a historical irony, the threat back then appeared to be the abusive use of vague state breach-of-the-peace laws to turn back the wave of civil rights demonstrations in the Deep South. The 1965 Supreme Court decision Cox v. Louisiana, decided while I was a law student, opened my eyes to just how much mischief can be done with vague working of the law.
This case is still a relevant decision today because it involved a vague law enabling Louisiana police to arrest people who were picketing for social justice. As we certainly will have to be doing ourselves soon. The ruling threw out the Cox conviction on the grounds the officials were “intentionally misleading citizens” so that the government could “pick and choose capriciously which citizens it will or will not prosecute and under what circumstances.” For example, white cocaine users get off or sent to country club prisons for a short break and black crack cocaine users were massively arrested and sentences to unduly lengthy hard time prison sentences.
The danger posed by vauge laws, relatively rare in modern state criminal statues, are greatly exacerbated in the current federal criminal code. Such federal statues have been stretched by PROSECUTORS, often with the connivance of the federal courts, to cover a vast array of activities neither clearly defined not intuitively obvious as crimes, both in commerce and in daily life.
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.
Basically, the point is that laws so vague can be used against citizens without “adequate notice of what constituted the crime.” This reminds me of a quip someone made about the IRS and your taxes. It is only their opinion that you owe money, and so there is room to negotiate. Not that most of us would be likely to do so! You aren’t cheating on your taxes if the law is not clear enough for you to understand that taking a deduction for your cat as a dependent is not the intent of the law.
One example in chapter 2 was particularly of interest given the current trend to attack “the opioid epidemic” [aka the new drug war just to keep a failed policy from dying as deserved death]. A doctor, who was a pain specialist, was arrested and described as “no better than a street corner crack dealer” who”dispense[s] misery and death.” The doctor was smeared, had his assets frozen, and a bail set at $2 million.
One cannot truly understand Dr. Hurwitz’s indictment without first understanding the “war on drugs,” a political and cultural initiative that has handed the Department of Justice a goody bag of dangerously pliable statues and regulations with which to criminalize yet another profession with its own time-honored practices and ancient standards.
And it must be noted, the “war on drugs” was simply a method to crack down (no pun intended) on the anti-war hippies and the civil rights demanding people of the sixties and revitalized by St. Ronnie and his little “just say no” helpmate.
Federal criminal egulation of narcotics began with the Harrison Tax Act of 1914, targeting the non-therapeutic, addiction-related, and recreational uses of opium, morphine, and cocaine, used at the time for a variety of medical conditions and procedures. This legislation marked the beginning of a long-running federal assault on the medical profession and its patients, particularly those addicted to narcotic drugs, whether for recreational or therapeutic reasons.
That reminds me of the hysterical (literally and figuratively) film, Reefer Madness, that demonized marijuana as a “gateway” drug and was recently refused reclassification by the DEA. Marijuana is a particularly blatant attempt to control something as a criminal function when more addictive cigarettes (death sticks) and alcohol are not criminalized but enjoyed for recreational consumption. It has become apparent, however, that with the success of Colorado’s recreational retail industry providing a flood of tax money in the state, and more acceptance of the medicinal properties of weed, that now the government’s maintenance of the criminal classification of marijuana is only going to stay in place until Big Pharma gets control of patents and such so that they will make all the profit, not state tax revenue. And furthermore, they are going to render the use financially unfeasible and block citizens from growing their own for their personal use. Medical marijuana in Minnesota, I was told, would be tracked by serial numbers, made into pills with the “party” element removed, and controlled by an extensive network of licensed retailers and other unnecessary bullshit. The estimate price for a month’s supply, say for preventing nausea during chemo treatment for cancer, was projected to be $500 to $600. Much cheaper to grow your own, or buy it illegally for medicinal use and risk prosecutorial zeal over your reasonable and pragmatic choice to pay less for an actual weed.
The classification of these drugs into categories purportedly balancing therapeutic value against addictive and recreational potential signaled the new, supposedly modern, more scientific approach to federal drug regulation. Such, however turned out not to be the case. INstead of achieving a medically-rooted balance, the feds drew an arbitrary line between what they believed to the appropriate medical administration of pain-killing drugs versus “drug dealing” by physicians. Worse, the regulatory language made it virtually impossible for even the most responsible pain specialist to discern when he or she crossed the line into an area the DEA would consider akin to “street dealing.”
At the center of much federal drug law enforcement is a line drawn between drugs taken for “recreational” or “addictive” purposes rather than for THERAPEUTIC BENEFIT. (p. 47)
The result has been what almost seems to me like deliberate persecution of doctors because they are an easier target than violent gang drug dealers. Instead of allowing a physician to “make a medical judgment in this area, he or she can readily be reduced to a drug dealer.” Based, for example, on the assessment of a jury of not quite “peers” and ambition of prosecutors who seek political office and want to be tough on “crime” without charges of racial bias maybe that might come from prosecuting gangs dealing drugs. The really criminal thing here is that the doctors unjustly and capriciously prosecuted likely lose their assets and livelihood while defending themselves against long drawn out prosecution.
Chronic pain sufferers also suffer from this obsession with drug “addiction” because they are assumed to be addicts, or lack self-control, or to be lying about their level of pain. I remember when hospitalized, dying cancer patients were not fully medicated for their pain (and 50% still are not in an estimate on p. 57) because of the fear of them becoming “addicted!” DYING PEOPLE IN PAIN and the level of medication necessary to relieve that pain is withheld lest they live long enough to be addicted or lest the government come after the doctor giving them adequate pain relief. SO FUCKED UP! As I recall, it has been established that for people with short term pain, they can safely take “addicting” medications and not become addicted once they are no longer in pain. Patients are forced to use over the counter meds that are NOT benign but have serious side effects, especially when they are inadequate to the task and so people take more than their stomachs can handle (or liver or kidneys).
According to some estimates by the American Gastroenterological Association, as many as 16,500 Americans bleed to death annually as a result of over-prescription of anti-inflammatory medications such as ibuprofen and naproxyn. . . .
This topic then segues over to the fucking asshole John Aschcroft as Attorney General under W “who possessed a law degree but not a medical one,” who decided that the new trailblazing and desperately needed Oregon Death With Dignity Act, “passed by a 1994 ballot referendum” that allowed licensed physicians to “prescribe lethal doses of a drug in response to a knowing request by a terminally ill patient in excruciating pain” was not “legitimate medical practice” and “reasoned that since the art and science of medicine is to heal the sick, it was counter to that end to intentionally kill the patient. Therefore, ruled Ashcroft, such prescriptions would thenceforth be deemed violations of federal law. Transgressions could. . . result in criminal prosecutions because “in the words of the applicable regulation, the prescription of the controlled substance was not “issued for a legitimate medical purpose.”
Ashcroft so decreed, even though the Oregon statute set out carefully nuanced guidelines that sought, for example, to distinguish patients in a terminal and unbearable state of physical pain from those acting in a state of depression. The statue reflected the best medical and political judgments in the state of Oregon, and yet the attorney general . . . saw fit to wield effective veto power [over the will of the people]. (p. 60)
The continued discussion on this is very compelling story. Thankfully, unlike so many SCOTUS decisions, this one resulted in a January 2006 ruling of 6 to 3 against Ashcroft.
But the high court posed a question that federal drug warriors were not accustomed to being asked: “Who decides whether a particular activity is in ‘the course of professional practice’ or done for a ‘legitimate medical purpose’?” . . . it was clear that the CSA did not authorize Ashcroft to declare illegal a “medical standard for care” that under state law was legal. (p. 61)
The court concluded that the opinions of federal prosecutors were not an appropriate basis to determine criminal prosecution. Small government my ass. Gynoticians and medical decisions by lawyers, is there nothing to stop the madness?
The book has very thorough coverage of a variety of federal overreach in multiple areas, including national security, financial misdeeds or not, and other areas. But I have gone into depth on the “Giving Doctors Orders” chapter because it hits most close to home for me. Both on the chronic pain front, the death with dignity front — from which I am still excluded as multiple sclerosis cannot be said to be terminal in the same way cancer is terminal. MS is a disease for which medical marijuana may be prescribed in my state, but I will never bother with it unless I can legally grow my own for my own use.
And of course, no post of mine seems complete without likening the drug issue and the government’s excessive involvement in a futile effort worse than Prohibition, to that of the government’s role in deciding that poor women should be forced to give birth. That anyone, gynoticians, pharmacists — pretty much anyone including the neighbor next door, should have the right to mandate your medical choices against your will. Whether it is coping with chronic pain, choosing to die with dignity, or deciding whether or not to become and/or remain pregnant, rather than the actual patient, makes the entire principle of the land of the “free” a bitter lie.
But all the procedural rights in the world are for naught if the defendant is unable to understand what it is for which he or she stands indicted.
The more subtle them of this book, which deserves greater stress here, is that over the years the federal judiciary has acted TOO OFTEN as a HANDMAIDEN to FEDERAL PROSECUTORS in their misguided efforts to nail their targets with vague, outmoded statutes badly in need of clarification or revision. (p. 257)
A particularly nice phrase of his in the conclusion was defining this executive overreach as a “strategy to prosecute conduct that Congress had not yet outlawed.”
As every judge on the federal bench knows, there is a clause in the body of the Constitution, less well known than the various amendments in the Bill of Rights, that prohibits Congress from enacting “any ex post facto Law.” Black’s Law Dictionary, the standard work in the field, defines such a law as one “that impermissibly applies retroactively, [especially] in a way that negatively affects a person’s rights, as by criminalizing an action that was legal when it was committed. That clause is too rarely used in the modern era. It should be reinvigorated. If a prosecution is brought on the basis of a vague state, and if there was no reasonable warning to the defendant that he was committing a crime, the indictment should be dismissed. Judges should not twist themselves, and the states they are charged with enforcing, utterly out of shape in order to do the DOJ’s bidding. (p. 270)
It amazes me that so much effort can be put into prosecuting ordinary doctors and others when there are real criminals out there, like the banksters that broke the economy in 2008. I guess it is just easier to be seen to do your job by picking on people with limited resources and by freezing those that they have. Rapists walk free but a cancer patient wanting to experience less nausea by smoking pot is deemed a criminal of a higher magnitude. The perpetual war on drugs sucks up so much time and money and only seems to make it more profitable for cartels to pursue, destroying so many lives in the process. And this zeal is not limited to borderline or potentially criminal acts, but too many gynoticians would also choose to criminalize women for medical decisions and the doctors who treat them. Plus laws have been passed that even preclude legitimate and necessary medical procedures from even being taught in some medical schools. With no trained doctors to perform an abortion, we are back to back alleys and coat hangers.
So one thing that was not covered in the book was that prosecutorial zeal is NOT the only form of citizen abuse by local, state, and federal officials. The very lawmakers themselves are zealously attempting, like John Ashcroft, to force their opinions on a helpless citizenry. We need to have a reformation of the process of federal law development so that the people can put forward legislation that must be heard and voted on by roll call on the floor of the House and the Senate similar to referendums at the state level. We cannot rely on “our” representatives to bow to the will of the people or social justice (not always the same, in fact, frequently not! e.g. slavery) when they are the captive mercenaries of corporate profiteers and oligarchs.
One thought on “Three Felonies a Day by Harvey A. Silverglate”