Wednesday, April 1, 2015

You Do Not Commit Three Felonies A Day

By Robert H.

Libertarians have been claiming for a while now that the average person commits three felonies a day (Tyler Cowen does it here, for example).  Normally this is done to illustrate the idea that big government has run amok and prosecutors can destroy the lives of anyone they want to.

Maybe it has, but that doesn't mean people actually commit three felonies a day.  I think this all comes from a book by Harvey A. Slivergate entitled, clearly enough, Three Felonies a DayHis website attempts to lay out his case with a series of easily committable felonies, but I don't think he gets there.  If he had labeled it "it is surprisingly easy to unknowingly commit a felony, here are some examples" it would be a great list.  But as an example of how everyone is committing felonies all the time?  I don't know, how many people are actually driving into protected wilderness areas, knowingly destroying evidence of a crime, importing fish, or leaking classified information day in and day out?

Where he does bring up crimes I could see lots of people committing lots of the time, he's normally stretching his use of the word "arguably" in the phrase "arguably a felony."  For example:

1.  He says that calling into work sick when you aren't could be honest services wire fraud, a serious felony.  Now that is everyone-does-it-all-the-time stuff!

Except the Supreme Court has developed a cottage industry of overturning and narrowing honest services fraud.  One year after he made that list, the Supreme Court clarified that honest services fraud only applies if the fraud is part of a bribe or kick-back scheme.  I don't see anything in Silvergate's hypothetical that amounts to a bribe (His hypothetical felon calls in sick because his cousin gives him a ticket to a baseball game, but the cousin wasn't TRYING to get him to call in sick.  There was no quid-pro-quo.  Even worse for the prosecution, it's not clear that he has a fiduciary or state law duty to actually be sick when he calls in sick).  Maybe he can be forgiven since the law changed after his book came out, but come on.  Every lawyer in the country knew the Court was going to narrow honest services fraud.  This is more an example of "it takes more than zero seconds for the courts to clarify that badly written laws should not be read in retarded ways." 

2. Silvergate implies that violating a website's terms of use could be wire fraud, but that's a stretch of the language and, as far as I know no Court has ever found that.  Silvergate retorts by more-or-less saying "but a guy got prosecuted for it once!" but come on.  "Prosecutors could baselessly go after you and lose for common occurrences" is not "we all commit three felonies a day."

3. Silvergate implies it is a crime to make a false statement to any federal official.  I'm pretty sure this is false?  The crime is to make a false statement within the jurisdiction of a government department or agency (he even links to the statute!  That is what it is says!).  Telling your buddy who works for the DEA that you once bagged an 800 point buck isn't a crime, even if it is a lie. 


Weirdly he doesn't include the one I see the most, "throwing away junk mail addressed to another person is a felony."  As I recall, this is arguably true even if you just possess mail wrongly sent to you.   That said, there is a circuit split on whether it is true when the mail is addressed to your current physical address but is clearly meant for another person, ie, to an old tenant. 

Anyways, I think Libertarians have a point if they want to say "think back.  Are you really convinced that you've never committed a felony?  How sure are you that your safety and freedom is rooted in the law?  Couldn't it have been rooted, all this time, in you having the good favor of prosecutors and police?"  But they need to drop this "you commit tons of felonies all the time without even knowing it" stuff.  Lots of people commit no felonies a day for lots of days. 

Maybe the book proper will change my mind.