The state says you are a criminal


Are you a criminal? The state says that you are. Harvey A. Silverglate’s Three Felonies A Day says in his book that federal prosecutors invent creative interpretations of statutes and by doing so create new felonies out of thin air. So many felonies that the average person in this country commits three felonies a day.

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. In Three Felonies a Day, Harvey A. Silverglate reveals how the federal criminal justice system has become dangerously disconnected from common law traditions of due process and fair notice of the law’s expectations, enabling prosecutors to pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior.

The dangers spelled out in Three Felonies a Day do not apply solely to”white collar criminals,” state and local politicians, and professionals. No social class or profession is safe from this troubling form of social control by the executive branch, and nothing less than the continued functioning and integrity of our constitutional democracy hang in the balance. ~from the publisher’s description

Silverglate tells us that the poor wording of congressional laws allows these prosecutors to establish felonies never intended by Congress to become the law of the land. He tells us that federal criminal law is today so vast that each of us unknowingly commits at least three felonies each and every day.

Federal judges are most often former federal prosecutors and they are of no use in reining in the abuses of the predators called federal prosecutors. These judges permit the prosecution of Americans for crimes that the defendants did not know were crimes and most often could not have known were crimes. Hell, part of the time these crimes did not even exist until some federal prosecutor dreamed up the charge and then filed it against some hapless citizen.

The invention of crimes by prosecutors violates every known legal principle in Anglo-American law and in spite of that it has become commonplace in our modern police state. Silverglate reports in his book that defense attorneys have lost confidence that it is possible to defend a client from a federal prosecution. In the vast majority of cases the defense has become a mere negotiator of a plea bargains to reduces the charges and prison time of the defendant in spite of the fact that many are innocent.

Very often these novel “new laws” can then be used to entrap innocent Americans and send them to prison. If you read Silverglate’s book you can learn how federal prosecutors manage their frame-ups and send scores of innocent citizens to prison for committing no crime at all. Silverglate reports on many cases to evidence his claims and he was personally involved in many of these examples.

In addition to the prosecutors just making up new crimes, we have the specter of all the wrongful convictions by the prosecutors just looking to “win” and justice be damned. This is the aspect of the modern system of in-justice that most of us are more familiar with.

The problem is that prosecutors rarely care about innocence or justice. They are the products of law schools that preach winning at all costs and they know that their future prospects of getting appointments to the bench or winning a political race depends on a high conviction rate. To hell with justice because being “tough on crime” is a requisite item on their resume. Besides that, prosecutors operate under cover of immunity.

In most professions people who make serious errors that harm other people, like sending an innocent man to prison for decades, results in their being held accountable for the actions that caused the situation. In America prosecutors who bend and break the law are immune from any punishment. How the hell did that come to be? Who thinks that giving a man immunity for all his actions will lead to him never abusing his position?

I recommend reading Silverglate’s book even though it is a few years old now. The system is still broken and he describes it well.

Injustice in Tennessee: “Making a Terrorist Threat”

I saw recently on the LRC blog that Professor Michael S. Rozeff posted a story and a portion of a letter sent to him about a black man in Tullahoma, Tennessee who has been railroaded by the hysteria surrounding the “terrorism” issue. From the report: “The man is facing 12 to 20 years in prison for making a hotheaded statement to a government school employee. Tyrone L. Watts, 43, could face from 12 to 20 years after a jury returned guilty verdicts late Tuesday of charges of disorderly conduct and attempted terrorism.” Twenty years for disorderly conduct? Oh my, we have fallen down the rabbit hole for sure. But no, it is the “terrorist threat” that gives you 20 years in Tennessee.

Dr. Rozeff commented:

Lawmakers have literally created the crime of terrorism for possibly or allegedly ill-considered and/or extreme remarks made in a variety of emotional or mental states that include haste, anger, sarcasm, habit, ignorance, being under pressure, stress, the desire to fight back somehow, frustration, displacement, being under the influence of alcohol, or simply lack of restraint and bad judgment. People should not be put in prison for decades for being human and saying things that they have no intention of doing!

Have law makers done this? Have they criminalized saying things in anger or while drunk that no one paid any attention to back during the 20th century? As it turns out the central government and the various states have all enacted laws that make it a very crime to make a terrorist threat. OK then, so what does it mean to make a “terrorist threat”?

For an introduction to laws on making a “terrorist threat” I followed the link Dr. Rozeff gave to see this explanation at a site that tries to explain legal issues to legal laymen like myself. They have a page that says this:

What Exactly Does “Making a Terrorist Threat” Mean?

The crime of “making a terrorist threat” is a recent creation enacted at both the state and federal levels after the terrorist attacks of 9/11.  It is a very general law that can be used to prosecute terrorists, but has been used far more often to prosecute situations involving domestic violence, hate crimes, bomb threats, and school violence.  Indeed, in many states, the term “terrorist” has been amended to mean simply “criminal.”

Although the exact definition varies from state to state, generally one makes a terrorist threat if one threatens to commit a violent crime for the purpose of terrorizing another or of causing public panic.  Some states laws are very narrow, meaning the threat must be very specific and direct, while other states adapt a looser approach, allowing even negligently made threats to be prosecutable.

What are the Elements of a “Terrorist Threat?”

The most commonly used definition of a terrorist or criminal threat has five elements:

  1. Someone willfully threatens to commit a crime that will result in death or great bodily harm.  This means that the threat obviously has to be of a highly dangerous nature.  Threatening to slash someones tires, for instance, would probably not be sufficient.  However, the threat can be made in any medium, written, orally, or electronically transmitted.
  2. The threat was made with the specific intent that it be taken as a threat.  Although this certainly seems like a redundant sentence, it is meant to convey that the threat is a crime even if there is no actual intent to carry it out.  The only intent you need is the intent to make the threat itself.  So if you threaten to blow up a school, you will still be guilty of this crime even if you are completely unarmed and have no means of accomplishing this at all.
  3. The threat is so unequivocal, unconditional, and specific as to convey a gravity of purpose and immediate prospect of execution.  This extremely complicated sounding sentence is very important to the law, so let’s break it down.  Remember you must satisfy ALL of these requirements.Unequivocal: This means that the threat must be a direct statement of what you WILL do, as opposed to CAN do (i.e. “I could be the next man to blow up the federal building” does NOT count).Unconditional: This word is very bizarrely used here, because the courts have directly held that conditional threats (“If you touch me again I’ll kill you”) DO qualify.  It is a gray area, but presumably, the fewer conditions used, the more likely the court will rule that it is a threat.Specific:  The threat cannot be vague (“if you don’t give me a million dollars, something bad will happen”).
  4. The threat actually caused fear in the victim.   People must actually believe your threat for you to be arrested for it.
  5. The fear was reasonable.  If you said that you are going to blow up the White House with your spaceship, it is unlikely that any reasonable person could take this seriously.

Each state may have its own version of these rules.  Missouri, for instance, only considers a terrorist threat one which frightens more than ten people, while California insists that the fear caused be “sustained” (held for more than a brief instant).  Because the laws differ from place to place, it is important to contact a criminal defense attorney familiar with the rulings in your state.

What are the Punishments for Making a Terrorist Threat?

The punishments for making a terrorist threat will depend on what state you are located in, and whether you are charged with a federal or state crime.  Sometimes the punishment can be as little as a year in the county jail.  In other instances (especially under federal law), the punishments can be extremely severe.  Individuals who threaten the use of a biological toxin can receive up to life in prison. The law provides for up to five years in prison for mailing communications that contain any threat to injure the addressee or any other person, and five years for those who lie to law enforcement officials about terrorist hoaxes.

In post 9/11 America, something as juvenile as calling in a phony threat to close down a school or skip a test can land you 20 years in prison.  Obviously, it is not a crime that is taken lightly, and if you’ve been charged with making terrorist threats, it is very important you speak with a criminal defense attorney immediately to discuss your options.

In post 9/11 America, something as juvenile as calling in a phony threat to close down a school or skip a test can land you 20 years in prison.” Come on now, have we gotten to that extreme by now? A fake bomb threat was called in at my high school on several occasions in the spring of 1969 as a prank by a boy who was later caught. He was given a week suspension for the actions — plus a severe talking to, and a paddling. We seem to have arrived at the dystopian idea of “thought crime” in the US. We have arrived at a place where you will speak as the ruling masters allow you to speak or you can be put in a cage for decades. This is the reality, this is not fiction from a writer’s imagination.

Back to the case of the Tennessee man who made a “terrorist threat”. He is a 43 year old family man who got so upset with a public school’s refusal to check out his child early into his custody that he made an angry threat as many people sometimes do when they lose their temper. But in this era of school safety hysteria he should never have allegedly said he would go buy an AK-47 and come back to shoot the place up: if he ever did say that. A lady who lives there sent Dr. Rozeff an e-mail about the incident and she said in part:

The only evidence against this gentlemen was the hearsay of an  inarticulate office worker at his stepson’s school. I have met  Mr. Watts. He was for some time a local pizza delivery driver, a very polite man. Our families later became casually acquainted at various community events. When I was pregnant with my first child he delivered his wife’s old maternity clothes with our pizza.   It certainly did not work in Mr. Watts favor that he is an African-American  (to clarify, I am a white), nor that he was convicted for a felony ten years ago. Perhaps the most damning detail was that this incident occurred two days before the school shootings at Sandy Hook Elementary became national news. On the day of the incident, police questioned a cooperative Watts and released him. Two days later, they returned to his home with a swat team and he was charged. The story was released to the local and state media and concerned parents were up in arms. Local police were beaming with pride that they had ‘stopped an act of terrorism.'”

It looks like the state of Tennessee has destroyed a family in a mindless attempt to “look tough” on crime and to “look tough” on terrorism. If everyone who ever made a hot-headed idle threat was sent to prison we would have at least half of all the men in jail. In addition to this, does it take only the say so of a school employee to put a man in a cage for two decades? Looks like it. Just one more reason to get your kids out of the government schools of the Empire.

This conviction and the legal description cited above tells us that an American citizen may now become a felon based on his speech alone without any intent to harm others or even the ability to harm others. This is an obvious violation of due process and the rights put forth in the Bill of Rights in the Constitution. This means that you may say something out of anger, drunkenness, sarcasm, or as a joke without meaning any of it and end up a convicted criminal in a cage. These are the laws of a police state.

Police State Prosecutors

In conversing with a friend on Twitter yesterday, I was reminded that I had been intending to do a little rant on the state of our in-justice system today. The whole situation is so complex that a person could write a series of books on the subject and still not cover it all. I hope to hit a few highlights in this small post.

There are many factors that have gone into the destruction of any “fair” justice system in the United States but I do think that out of control prosecutors with immunization from any law breaking are at the heart of it all. Robert H. Jackson was a United States Supreme Court Justice and was the chief prosecutor at Nuremberg, Germany in 1946. In 1940 as Attorney General  Jackson gave a speech to the United States Attorneys:

“The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”

As you can see, as far back as 1940 the professionals inside the legal system could see that enormous power wielded by America’s prosecutors was a dangerous situation. Backed by the enormous power of the state, these prosecutors have unimaginable power to destroy innocent lives.

Since the advent of the “war on crime” and the “war on drugs” dating from the Nixon era, the only thing that the pubic seems to pay attention to is the prosecutor’s conviction rate. Justice and truth seem to have been shoved aside in rating the performance of these  “secular gods”. The prosecutor is practically immune from any punishment when he breaks the law and tales of prosecutorial misconduct are legion. Since power unchecked will inevitably lead to abuse, it is not a mystery why our “Innocence Projects” keep uncovering innocent men and women railroaded by the system.


The Wall Street Journal outlined the case of a man who was innocent and almost pleaded guilty because everyone in the system told him to do so. He decided on a trial based on he did not want to swear before God to a lie that he was guilty. A jury found him not guilty. The article went on to say:

The triumph of plea bargaining in the federal system, which has gathered pace in recent years, is nearly complete. Guilty pleas last year resolved 97% of all federal cases that the Justice Department prosecuted to a conclusion. That is up from 84% in 1990. During that period, the number of federal defendants nearly doubled amid a crackdown on crimes ranging from drug trafficking to fraud, while the number going to trial fell by nearly two-thirds. (WSJ)

In one of his essays, Lew Rockwell recounted the case of a college professor who was arrested for an “online crime”. His lawyer said that the system would bury him if he did not plead guilty and accept an easy sentence. The judge and prosecutor double crossed the man when he did and he remains in jail to this day. He is a broken man, innocent yet seen as a criminal. No prospects for the rest of his life.

I could go on and on about innocent men and women being railroaded by our out of control criminal system. There are people who do little else but report on that issue. The simple fact is that a “plea bargain” was resisted by judges for centuries but now we see that 97% of the criminal cases are settled by plea bargains. This tells us that the system is badly broken.

The prosecutors have all the power and even judges can not exercise discretion when they see a travesty since lawmakers passed laws taking away much of the judicial discretion that existed in the past all in the name of “getting tough on crime”. And so, there is little way out for the accused. Like in the USSR, to be accused is to be guilty. Well, maybe we are not there yet but we certainly are getting closer by the day.

How did this all happen? It was both political parties preaching safety, security, and calling for locking up the “bad guys”. The idea of a “fair trial” was seen as almost un-American. By 2001 the police state had won and the 9-11 security madness just cemented the win. It does not matter who you are anymore — you are a sitting duck if the police state decides to come after you. There is almost no chance you could escape the feds once they take notice of you and decided to cage you. And there you languish for perhaps decades until you are totally institutionalized and have no chance at a normal, useful life. You are just an ex-con. The fact the system ran over you just to improve its conviction rate and help make the political career of yet another prosecutor matters little to family, ex-friends, prospective employers, and so on.

The US has the largest prison population in the world both by raw numbers and by percentage count. Why? Do you really think that American people are much more criminal than all the other peoples of the world? Of course not. The reason is that we have a police state even if the people want to pretend that it is just not so. The news this week is that the US government has access  to the phone records and web activity of every single American. Are we to believe that this information will not be used against anyone the government takes a strong interest in?

No matter how much data and evidence comes pouring in that our government is out of control, the people seem to think it is all okay. Wake up sheep!

An old example of prosecutorial misconduct; and a new one

Old Case:

There have been scenes in movies about the 1957 meeting of Mafia bosses in Apalachin, New York where 100 of the big bosses of the Mafia met at the home of local Mafia chieftain Joe Barbara. I can just mention the scene and my wife will fill in all the details from movies she has watched over the years. It was pretty funny I guess.

The local police became curious when they noticed numbers of expensive cars with out-of-town license plates going to the Barbara home. Without even a shred of “probable cause” the local cops arrested everyone in sight that they could catch. A local prosecutor named Milton Wessel charged them with “conspiracy” since there was no crime committed that anyone could think of. The question of what constituted this so-called “conspiracy” did not seem to bother Wessel a bit and he got a conviction against 20 men and sentences up to 5 years in prison for being at someone’s house with an out of state tag on a nice car.

We don’t know what Wessel was thinking when the Appeals Court for the 2nd Circuit overturned the convictions pointing out that the government had not produced a shred of evidence that any crime had been committed. Was Mr. Wessel’s career harmed by this prosecutorial misconduct? Why no; Mr. Wessel subsequently became a professor of law at Georgetown University.

This 1957 episode probably sticks everyone who hears about it as funny as all get out. I know I smile every time I think of it. But when I reflect on it I realize that the legal system in the USA had already gone to pot by that time. If Americans had really honored the constitution and the rule of law then Prosecutor Wessel would have been tarred and feathered for such a travesty of justice even if the targets were Mafia bosses.

New case:

And then there is a recent case of prosecutorial misconduct from Miami, Florida. The supreme court of the US decided a short time ago not to hear a case involving prosecutorial misconduct against a Miami doctor which means that the doctor can not get justice against the wildly misbehaving prosecutor. Nothing new here; prosecutors are practically immune from prosecution in this country.

Reason Magazine wrote:

A case that touches on two important criminal justice issues – prosecutorial misconduct and the federal government’s zealous war on pain medication will not be heading to the Supreme Court, even after nearly 70 federal judges and prosecutors threw their support behind it. Ali Shaygan, a Miami doctor, had been acquitted by a jury of illegally prescribing pain-killers after one of his patients died. He had faced 141 separate charges. Then he fought back.

The “war on drugs” has been at the heart of the destruction of the rule of law in the US for decades. Here is just one more example of a prosecutor who wanted a conviction so bad that he tosses hundreds of years of due process out the window and just plain cheats. The real problem is not just this one scum bucket prosecutor; it is that all of them are willing to “bend the rules” to get the “bad guy”. It is rare that they get caught since most of the poor can not get good legal representation; and when they do get caught nothing happens.

In a Reuters article on this case we see the real crime was committed by the prosecution team. “The U.S. Supreme Court on Tuesday refused to consider whether criminal defendants who are acquitted can recover fees from the Justice Department for conducting prosecutions in bad faith.” A prosecutor breaks the law and tries to rail-road a man into prison and the Supreme Court can not be bothered to even look and the issue!

Via Reuters:

A Miami federal judge later awarded the doctor $602,000 under a federal law called the Hyde Amendment, which allows judges to sanction prosecutors for taking positions that are “vexatious, frivolous or in bad faith.”

The judge found that prosecutors acted in bad faith by pursuing new charges and secretly recording Shaygan’s defense team. The steps were taken in retribution after Shaygan’s attorney tried to keep statements the doctor made to investigators out of evidence, the judge found.

The judge called the prosecution’s tactics “profoundly disturbing,” adding that they raised “troubling issues about the integrity of those who wield enormous power over the people they prosecute.”

But the 11th U.S. Circuit Court of Appeals in Atlanta overturned the award, ruling that prosecutors have broad discretion under the doctrines of sovereign immunity and separation of powers.

Regardless of prosecutors’ subjective ill will, they had an objectively reasonable basis for their acts, the appeals court found.

It is time to call off the drug war. Well past time. It is also time to prosecute the prosecutors when they break the law.