I finally, somewhat belatedly, read Harvey Silverglate’s Three Felonies a Day. The book is a bit different from the title. It doesn’t actually argue that Americans commit three felonies a day. But it does argue that vague laws, ambitious prosecutors, regulatory complexity and the abandonment of mens rea — the principle that criminal charges should be brought only for intentional violations of the law — have created an environment in which massive swathes of the public are in jeopardy of having their lives, families and fortunes destroyed when they have done nothing wrong. His book show that the awesome prosecutorial power of the Justice Department has forced companies to fork over hundreds of millions rather than let their companies be destroyed (as Arthur Anderson was). It has pressured them into cutting employees loose for dubious criminal and civil prosecution. And he argues that my least favorite federal crime — lying to investigators when not under oath — gives the government the ability to prosecute people who have literally committed no crime. Just ask Martha Stewart.
While Silverglate is very good at detailing the environment that has led to this situation, there is something he has left out, in my opinion. A big contributor to the problem of prosecutorial overreach is that we have created an army in search of a war.
Let me back up about twenty years.
In the early 90’s, we were in the midst off a devastating and seemingly insurmountable crime wave. The crack epidemic shot crime to levels normally seen in third world countries. There were parts of our cities that were completely lawless. Crime was a major issue in the election of ’88 and ’92, with the Presidential candidates vying to see who could crack down hardest.
There were a lot of things we did to fight this surge — some good and some bad. Three strikes laws, more cops, more prosecutors, minimum sentences, more prisons — almost all of which had strong support from the public.
The “problem”, if you want to call it that, is that the crime rate hasn’t just fallen in the last twenty years, it’s completely crashed. The crime rate has fallen to about half of its peak level. We haven’t been this safe since the 1960’s. And yes, even with a recession on, it’s still falling. If you want to call the War on Crime a war, we’re winning.
Some of that is because society righted itself. In Parliament of Whores, one of O’Rourke’s interviewees predicted the drug problem would get better on its own. But at least some part of that drop — maybe the largest part of it — is because of the measures we took when we ramped up the War on Crime.
The problem is that we haven’t ramped those efforts down. Quite the contrary, to judge by the number of prisons and cops. The result is that we have a legal and law enforcement structure designed to deal with a problem at least twice the size of the one we actually have. A system in which cops are judged by arrests and tickets; prosecutors by convictions and sentences.
Nature abhors a vacuum. Something has to fill the void left by the predators we have put in prison. And that something is either crimes of little to no consequences — prostitution, drug use, bringing tylenol to school; or crimes that may not even be crimes such as the white collar prosecutions Silverglate details in his book.
There a million stories that detail the encroachment of our War on Crime into areas it is simply not suited for: the explosion of arrests for marijuana possession in New York; the increasing pressure on prostitutes and shrillness of anti-trafficking rhetoric; school kids being arrested and potentially jailed for extremely minor things; the ruinous and endless persecutions Silverglate details.
Every time we read about one of these outrages, we all ask the same question: ain’t the cops and lawyers got nothin’ better to do? The thing is … I don’t think they do. They are geared to fight a war that they’ve mostly won.
When you have a hammer, everything looks like a nail. When you have a law enforcement structure built to deal with predators, everyone looks like a predator. So SWAT raids intended to deal with well-armed drug gangs are unleashed on small-time pot dealers. Asset forfeiture laws intended to bankrupt billionaire drug lords nab guys transporting church money. Search tactics intended for criminals are unleashed on school kids. Insider trading laws intended to deal with crooks nab cooks instead.
The enemy is in retreat. So why are we bombing the villagers? Because we’ve got to do something to make the public think they’re getting their money’s worth and that we’re serious about criminals. And so … we define criminality down. We create more enemies.
So what should we do? Should we slash police departments and fire prosecutors? I wouldn’t oppose some hiring freezes on either, but that may not be politically tenable with the invertebrate species currently occupying the seats of power. Another solution was suggested to me recently: change the mission. Take cops off of busts and raids and get them out into the community. They shouldn’t be busting petty drug dealers, they should be using them as their eyes and ears to find the truly dangerous. They should never bust a working girl; sex workers could be their greatest ally in saving girls who are really in trouble. Either of these is worth a try.
And prosecutors? Well, they could be lot more like Craig Watkins, the heroic Dallas DA who has ordered reviews of old contested cases and exonerated men who were falsely convicted. They could be more like Pat Lykos, now facing a primary challenge because of her reforms. Or they could be shifted to the defense side, to ensure everyone has competent counsel.
I think we are seeing some daylight. As I noted some months ago, both Chris Christie and Newt Gingrich have lent some support to treatment over jail for drug use (Christie expanding Jersey’s high successful Drug Courts). There is a growing movement among conservatives for prison and prosecutorial reform, with Senator Jim Webb leading the charge in Washington. Some judges are rebelling against sentencing guidelines. And now a majority of the public favor legalizing pot.
But it’s not enough by far. We set a huge machine in motion in the 1990’s. We had no choice; our society was crumbling. But we have to realize that the machine is a bit out of control. And shrinking or diverting it is critical to maintaining any kind of respect for the Rule of Law. Because when the government is arresting kids for high school pranks; when the government is raiding small-time pot growers; when the government is extorting money from businesses, they are not supporting the Rule of Law.
They’re threatening it.