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Review :: Police and Prisons
An Anarchist Review of Three Felonies a Day
22 Mar 2016
Harvey Silverglate's 2009 book Three Felonies a Day: How the Feds Target the Innocent is a good book that missed its chance to be a great one. Like too many liberal authors Silverglate focuses too narrowly on a specific issue, in the process ignoring major systemic problems. However, Three Felonies is still an illuminating case study of how laws are written, interpreted, and enforced in such a way as to make everyone a potential target, no matter how much they wish to avoid violations.
Silverglate, a long time criminal defense attorney, focuses on the effect of vague laws and over-zealous prosecution on the professional class, whose everyday activities are increasingly interpretable as federal crimes. In successive chapters he shows how doctors, businessmen, bankers, and even lawyers can and have been indicted, and in some cases convicted, essentially for doing their jobs. He dates this tendency back to the early eighties, when Reagan-era courts began interpreting many laws much more loosely, and Congress began creating ever-more nebulous statutes. It's a revealing read. Most people who have never been involved in a federal criminal case have no idea of the breadth of actions that can be grounds for indictment by a creative US Attorney. A few highlights: One can now be prosecuted for destruction of evidence even if having no idea that the material destroyed even was evidence. Doctors can be prosecuted as drug dealers just for prescribing pain medication. Prosecutors often require cooperating witnesses to "not only sing, but compose", that is, fabricate incriminating testimony. Eighties junk bond king Michael Milken was never convicted in court, but pled guilty to something that wasn't illegal to protect his brother from being indicted on equally spurious grounds. Three Felonies should be required reading for members of the professions covered within, so that they may take whatever precautions are still possible.

Nonetheless, Silverglate missed a grand opportunity to critique the entire US criminal justice system from top to bottom. His exclusive focus on the legal travails of the one percent ignores similar dynamics at every level of jurisdiction, against every member of society. Anyone reading Three Felonies with no prior knowledge of the US legal system would think that over-prosecution, vague laws, unscrupulous prosecutors, and the criminalization of routine behavior were problems solely faced by rich people. This is hardly the case.

State law is just as oppressive as the federal variety, albeit for somewhat different reasons. Silverglate makes a good case that, for the kind of defendants featured in Three Felonies, state laws are generally more specific and clearer than their federal counterparts. That doesn't mean that every state law is a model of precision. For example, laws against disorderly conduct, disturbing the peace, and loitering are notorious for being catch-all offenses meant to provide police with an excuse to arrest anybody they want to. Zero tolerance policies in schools send many children to jail for offenses that in the past would have earned them little more than a trip to the principal's office. Recently police have even been charging children with harassment for using the wrong emojis in Internet posts.

Silverglate also fails to acknowledge the criminalization of poverty that occurs mostly at the state and municipal level. Investment bankers, for example, are unlikely to find themselves accused of selling marijuana or driving without insurance, but these are the sorts of charges that routinely devastate the lives of poor people. A misdemeanor case for bicycling on the sidewalk may be far less expensive and time consuming that a federal mail fraud prosecution, but when levied against someone already struggling just to make rent this hardly matters. Silverglate makes much of the disruption of the lives of the defendants featured in Three Felonies. But at least they could afford bail, top quality lawyers, and the time to assist in their own defense. Contrast this with the case of, say, a broke single mother arrested for drinking in public. She is likely to have lost her job, apartment, and kids before she manages to get out of jail, regardless of the final disposition of the charges. In addition she will be represented by an overworked public defender or court-appointed attorney who may urge her to accept a bad deal for no better reason than that their caseload precludes taking the time to mount a competent defense.

These kinds of relatively petty charges have proliferated enormously in recent decades, driven by another eighties law enforcement innovation, the so-called broken windows theory. This theory holds that prosecuting minor infractions prevents violent crime by getting criminals off the streets and increasing respect for the community. Popularized by New York City police commissioner William Bratton in the nineties, broken windows policing has never been shown to be effective in reducing violent crime. But that hasn't stopped the NYPD and police departments across the country from stopping, searching millions of mostly poor people of color, and arresting them for a myriad of petty "quality of life" crimes. According to researchers at the John Jay College of Criminal Justice, misdemeanor arrests in New York City tripled between 1980 and 2013, including a fourfold peak in 2011, at the height of the NYPD's stop and frisk crusade. It's not just New York either. After Michael Brown's killing it was revealed that Ferguson, Missouri relies on fines and court fees from just such petty offences for a whopping 25 percent of its municipal budget. Additional examples abound.

It is readily apparent that everyone, not just certain professionals, are in near-constant violation of one statute or another. Between the crimes we commit to survive, the crimes we commit through momentary inattention, and the crimes we didn't even realize were illegal, the only reason the entire population is not in prison is the incapacity of the criminal justice system to process us all. If even just the traffic code was enforced at 100 percent, if drivers were ticketed for every single speeding violation and failure to signal a lane change, driving would be impossibly expensive. Similarly, life would be impossible if the police somehow gained the ability to arrest everyone for every violation of criminal law. If each of us had our own personal Robocop that followed us around and clapped us in jail the instant we did something illegal, half the population would be behind bars within a week. Even if every police department was as aggressive as New York's the nation's already massive prison population would be far greater than it is now.

It's time to ask what this situation means for the concept of law enforcement. The law is promoted as a code of moral behavior, generated by the democratic process, perhaps imperfect, but certainly better than letting individuals decide for themselves what is right or wrong. Fear is therefore expected to substitute for conscience. Law enforcement promises, not to uncover and punish all infractions, but to at least catch a sufficient number of wrongdoers to create a deterrent effect, lest society be consumed in a maelstrom of crime. Yet deterrence obviously becomes meaningless when the law balloons to such gargantuan proportions that it becomes impossible to follow. What then is the true function of law in society? For an answer we turn from the legal world to that of the military. British counterinsurgency expert Brigadier Frank Kitson, in his classic book Low Intensity Operations, tells us "…the Law should be used as just another weapon in the government’s arsenal, and in this case it becomes little more than a propaganda cover for the disposal of unwanted members of the public." In the introduction to Three Felonies, Silverglate praises former US Attorney General Robert H. Jackson, who in 1940 cautioned his prosecutors to avoid "picking the man and then searching the law books, or putting investigators to work, to pin some offence on him". Yet in Kitson's theory of counterinsurgency picking the man and then finding something to pin on him is an essential tool.

Today it is obvious which of these visions has been adopted by the US criminal justice system. Counterinsurgency has triumphed over justice at every level. Silverglate shows us that Kitson's "unwanted members of the public" do sometimes include members of the upper class, but the kinds of cases chronicled in Three Felonies are a small minority. If we are all criminals, the only remaining question is which of us are to be criminalized, who will be actually arrested for the laws we all break. Michelle Alexander's groundbreaking book The New Jim Crow makes it clear that one answer is "black people". To them we might add the homeless, immigrants, and Muslims, among other designated bogeymen. Per Kitson, the law is merely an excuse to put away people whose incarceration serves the political needs of the state.

In fairness to Silverglate, Three Felonies was published before The New Jim Crow and before many of the examples in this review. Yet he could still have done more to locate Three Felonies in a broader context. If he had however, his proposed remedies, which are inadequate even for the federal situation, would have seemed downright pathetic. Silverglate proposes to rein in federal prosecutors through Congressional action to clarify vague laws, in order to reduce the possible scope for prosecution. The book makes it obvious however, that there are enough such laws to keep Congress busy for years, even if they did little else. Nor is there any reason to think they want to clarify these laws. Silverglate's account and numerous others reveal Congress' habitual deference to the Justice Department, who have a vested interest in retaining statutes that allow them to indict anyone they consider a threat. Add in factors like state and city quality of life laws, the dire state of most public defenders' offices, red light cameras and other surveillance, and all the other tactics police and prosecutors use to oppress the surplus population, and the idea of solving the problem by grassroots lobbying becomes laughable.

Anarchists of course, have been saying things like this for years. Peter Kropotkin's timeless essay On Law and Authority makes a brilliant case that the law is by nature an instrument of propaganda (although unlike Kitson he considers this a bad thing). Anarchists and anyone else with an interest in resisting law enforcement should still read Three Felonies, for all its limitations. Within its narrow scope it's a highly informative book.

This work is in the public domain.
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