
Three Felonies A Day - How The Feds Target The Innocent - jakewalker
http://www.harveysilverglate.com/Books/ThreeFeloniesaDay.aspx
======
temphn
Think about Aaron Swartz, and now realize the balls and execution it took for
Larry and Sergey to do Google Books. They got big enough that Google's "only"
risk was a civil lawsuit. Had they been smaller, they would have been risking
some ambitious federal prosecutor charging Google with wire fraud. Indeed,
it's kind of lucky that someone like Ortiz wasn't around to throw the book at
Alta Vista and early search engines for scraping sites too aggressively or
without permission (before robots.txt became mainstream as a distributed
solution without as much need for a centralized regulator).

As it was, DOJ did get involved in the Google Books case, pushing for a
harsher civil settlement against Google:

<http://news.cnet.com/8301-30684_3-10357097-265.html>

~~~
dchichkov
I don't mind at all ambitious, overzealous and over-exuberant prosecutors.
That is all right. Even great. But people do suffer when government officials
are trying to protect their own carriers and acting out of egoism; or
ignorance.

And it is really sad that such officials often go unpunished. Like a case here
for example: [http://www.aopa.org/aircraft/articles/2013/130110secret-
no-f...](http://www.aopa.org/aircraft/articles/2013/130110secret-no-fly-
zone.html?WT.mc_id=130111epilot&WT.mc_sect=gan)

They've put this 70 year old pilot:
[http://www.aopa.org/aircraft/articles/2013/130110secret-
zone...](http://www.aopa.org/aircraft/articles/2013/130110secret-zone-640.jpg)
in jail, without any violations on the part of the pilot or any ill intents.
And what was the result of the hearing?

> "his case went before the judge. When his attorney returned and said the
> case would be dismissed if he agreed not to take any legal action against
> Darlington County law enforcement, he said, he reluctantly agreed"

Great. Just great.

~~~
noonespecial
The real WTF is that _local law enforcement_ thought that they might have the
right to _shoot down the glider_. The guys that give you tickets for speeding
shooting their guns in the air over a nuclear power plant? What could go wrong
with that?

~~~
philh
> What could go wrong with that?

If something can go wrong when people with handguns shoot near a nuclear power
plant, then something has already gone horribly wrong.

~~~
noonespecial
The plant will be fine. The workers might not be so fine.

Also while I'm sure there would be no problems with the nuclear part, there
are things in and around a power plant that being struck by bullets might
be... inconvenient.

------
gsibble
I have this discussion with friends frequently.

For instance, it is illegal to throw a frisbee on a beach in Los Angeles
county(1). If you are ticketed, the fine is $1,000.

Now....how many tourists going to the beach are going to know that? How many
would ever bother to check? Sure, signs could help, but does everyone stop and
read the 12-15 rules on any beach/pool signs?

Even more broadly, were we, as citizens with the right to free travel on
public property, notified of the various laws we are subject to while passing
in and out of various jurisdictions? Are we notified of the daily changes made
to them? Are we given an opportunity to leave said jurisdictions when informed
of laws to which we don't want to be subjected?

How are we, as citizens, supposed to understand the laws we are required to
follow when we aren't directly provided with them or notified of any changes?

In the private world, there are very strict rules about this. You have to
explicitly agree to terms of service before utilizing products, companies must
record your agreement, and they must notify you (or provide you with a new
copy) if those terms change. (The South Park episode regarding the iTunes EULA
made an excellent parody of this fact).

The whole system is getting completely ridiculous and it deserves much closer
attention and more publicity.

Sources:

(1): [http://www.theblaze.com/stories/2012/02/09/los-angeles-
oks-1...](http://www.theblaze.com/stories/2012/02/09/los-angeles-
oks-1000-fine-for-throwing-frisbees-footballs-at-the-beach/)

~~~
learc83
The shear amount of laws has made it impossible to be fully versed on all the
things you can and can't do.

It seems something like mandatory sunset provisions are the only possible
solution as our legal system accumulates more and more cruft.

Eventually there will be so many laws that we will cease to be a nation under
the rule of law, because the only thing that will matter is prosecutorial
discretion.

~~~
tsotha
>Eventually there will be so many laws that we will cease to be a nation under
the rule of law, because the only thing that will matter is prosecutorial
discretion.

We are long past that point, which is the reason for the post title (and the
book from which it's drawn). Even the lawyers don't understand areas of the
law that are outside their own narrow specialty.

The root of the problem is the federalization of criminal law. People used to
say "Don't make a federal case out of it!" because that used to mean something
- federal cases were for the Al Capones of the world and people who interfered
with the mail.

Over the years Congress (with the acquiescence of the courts) has essentially
shed any constitutional limits on its power. Federal law now applies
everywhere (in the world) and to everything. The solution isn't mandatory
sunset provisions - lots of laws have sunset provisions already and they're
just routinely extended. The solution is a federal government that's limited
to the powers delineated in its charter.

That means, for example, you could have a federal law against importation and
transport of drugs across state line, but possession and sale could only be
regulated at the state level. Same with guns, speed limits, "assault weapons",
currency transactions, and damn near everything else against federal law. As
Joe Citizen you would know that things you did wholly inside your state
couldn't be illegal under federal law outside of a few narrow areas.

The way it works now is everyone is a felon, and if the feds want you they can
throw a hundred minor charges at you that all carry 3-5 years, so you're
looking at 500 years in jail... unless you take a plea. Innocent or guilty you
take the plea. God only knows how many innocent people are rotting in jail
because they didn't want to risk life in prison over something relatively
minor.

~~~
csense
> Congress...has shed...constitutional limits

> things you did wholly inside your state

These two statements are related. Congress has the Constitutional power to
regulate interstate commerce. That one little phrase in the Constitution is
mostly responsible for the federal government's power grab over the last 100
years or so.

Unless you have your own fully self-sufficient farm and solar plant, and don't
have a telephone, TV or Internet service, you're probably consuming goods and
services that are made in other states and interacting with companies based in
other states.

Since the federal government has the power to regulate those transactions, it
can intrude into the corner of your lives.

Also, the amendment giving the federal government the power to collect income
tax was another serious mistake. It was sold to voters as a "temporary"
measure to pay the country's debts from either the Civil War or World War I.
Spoiler: It wasn't temporary. If the government had never had the revenue to
engage in the massive spending of the last century, the current fiscal mess
wouldn't be happening.

~~~
greenyoda
Not even a self-sufficient farm is immune from the federal government, as was
decided in Wickard v. Filburn[1]:

" _Filburn argued that since the excess wheat he produced was intended solely
for home consumption it could not be regulated through the interstate Commerce
Clause. The Supreme Court rejected this argument, reasoning that if Filburn
had not used home-grown wheat he would have had to buy wheat on the open
market. This effect on interstate commerce, the Court reasoned, may not be
substantial from the actions of Filburn alone but through the cumulative
actions of thousands of other farmers just like Filburn its effect would
certainly become substantial. Therefore Congress could regulate wholly
intrastate, non-commercial activity if such activity, viewed in the aggregate,
would have a substantial effect on interstate commerce, even if the individual
effects are trivial._ "

[1] <https://en.wikipedia.org/wiki/Wickard_v._Filburn>

~~~
tsotha
Yep, _Wickard_ was where it really went off the rails. And then it got even
sillier when the court decided in _Raich_ that if you grow a pot plant in your
closet purely for personal consumption Congress has the power to regulate it
as interstate commerce. They didn't even have the flimsy fig leaf they had in
_Wickard_.

------
DanielBMarkham
When you have too many laws, you have no laws.

I hate to post something so pithy on HN -- we usually do longer comments here.

The fact is, compexity in the legal system only creates a system where those
in power can do whatever they want while those out of power (the middle class
and poor, mostly), are at the mercy of chance. That's not meant as an
indictment of the American political system, that's meant as an indictment of
the idea that a complex society requires complex rules to operate. If we could
kill that idea, a lot of this other stuff would clear itself up. But I'm not
taking any bets.

~~~
oinksoft
Further, you have a class of individuals whose job is to make new laws
(Congress and its machinations, as well as the state and municipal
equivalents). If they don't make laws, the perception is that they are not
doing their job. It was the same frustration with the parlements and the
resulting legal culture that helped ferment the French Revolution.

~~~
DanielBMarkham
There are some great parallels with the FR here -- more and more mob unrest,
little education as to why and how the political system works the way it does,
an overpowering debt that resists easy solutions, endless negotiations and
patchwork fixes,etc.

------
jakewalker
A video introduction to the excellent book:
<https://www.youtube.com/watch?v=JwsLAqjqnxo>

Excerpts: [http://www.scribd.com/doc/20864115/Champion-TFDexcerpt-
Sept-...](http://www.scribd.com/doc/20864115/Champion-TFDexcerpt-Sept-
Oct-2009) [http://www.scribd.com/doc/34289636/ThreeFelonies-
ZeheExcerpt...](http://www.scribd.com/doc/34289636/ThreeFelonies-ZeheExcerpt-
byHarveySilverglate)

------
rdl
I think I'd like to get as far from US federal law as soon as reasonably
possible. Unfortunately doing a tech startup in the US is still vastly better
than doing a tech startup anywhere else in the world, and a sufficiently
successful company is going to be exposed to US jurisdiction regardless,
although principals may not be (and definitely not for personal stuff), e.g.
Mega.

Not sure where is really that much better, except that common law
jurisdictions other than the US probably don't have the more recent utter
rejections of the common law tradition (RICO, Patriot, etc.).

------
michaelfeathers
I have a theory about how we got this way in America. I think that it is an
odd side effect of our ethos as risk takers and individualists. In many other
countries, it appears that there are some things that people won't do simply
because they would be ashamed to, or ostracized. There's no need to pass a law
with outrageous fines or sentences in an attempt to prevent things from
happening.

In the US, we tend to side with the rebel. Or, at least we did back in the 60s
and 70s. What we are seeing today is a legal clamping down in order to
compensate fused with post 9/11 paranoia.

Related: I believe that the reason why we Americans don't engage in irony in
conversation as much as, say, the British is that there is nothing that you
can say or do that someone somewhere in the US won't believe or do earnestly.
It's an aspect of our culture, and sort of a generalized case of Poe's Law.

~~~
greenyoda
Many of the recent federal laws have nothing to do with things that people
would be ashamed to do, or with terrorism. I forget the details of the case,
but a woman was facing jail time for some offense related to harassing a whale
by coming too close to it in a whale watching boat (since whales are an
endangered species protected under federal law). Also, a lot of landowners
have had their properties retroactively declared to be federally protected
wetlands, making it a federal crime to erect new buildings on them. And at
this time, manufacturing 100 watt incandescent light bulbs is a violation of
federal law (or maybe this year it's down to 75 watts).

------
noonespecial
The human element that is included in the justice system is there to make it
_stop_ when it runs awry, not to make it go through selective enforcement.

When we get this backwards really bad stuff happens.

------
guelo
What I don't understand about prosecutors is their incentive. Do they get
bonuses for fellonies?

~~~
saraid216
Watch _The Wire_. Especially Season 2, which is the weakest season of the
five, but speaks most directly to your issue.

I realize this sounds flippant, but it's not.

~~~
bobcattr
Season 2 of The Wire has to deal with the Docks. 3 and 5 deal with Politics

~~~
saraid216
But it's not "Politics" that I want to show him. It's Judge Phelan's
character. Poking through the wikis, I think I actually meant Season 1. It's
been two years since I saw it; I need to do a re-watch.

------
OGinparadise
Thousands of new of laws are passed each year (how did we manage the year
before without them?) so eventually everyone will be guilty of something. Many
laws are also broad so it's just a matter of them wanting to "get you." How
many people have a few million $ under their mattresses to prove their
innocence?

~~~
jlgreco
> _Many laws are also broad so it's just a matter of them wanting to "get
> you."_

Exactly. I have seen many people have hangups with the "three felonies a day"
concept because they misunderstand the purpose. They think the accusation is
that these laws are being constructed so that everyone can be arrested. Since
it is obvious that everyone is not being arrested, they concluded that the
concerned are just being alarmist.

The purpose isn't to allow the arrest of _every_ body though. It is to allow
the arrest of _any_ body.

Only an unlucky few are going to be 'called on' their daily felonies. Well,
that and the baseline background noise of enough arrests to keep the whole
system busy and well greased...

~~~
wwweston
> The purpose isn't to allow the arrest of everybody though. It is to allow
> the arrest of anybody.

I expect it's possible there have been and are people who push laws with
exactly that intention.

But my suspicion is that for the most part, the process isn't driven by
scheming tyrants behind the legislation, and that most laws are probably
passed with the intention of solving a specific problem.

It's only as they accumulate, as law enforcement and prosecutors learn how to
push them as tools, and as courts accept and support such use that they're
woven into a broader net that can catch "anybody."

Confronting this is different from confronting those who proverbially "mean to
rule" -- it's confronting what it means to have rule-of-law itself.

------
martinced
I've seen the following phrased differently but here's a libertarian's take on
the system (not that it reflects every single libertarian's oppinion):

"America is at that awkward stage. It's too late to work within the system,
but too early to shoot the bastards."

I've seen it written too: "It's too late to start legally fixing the system,
it's too early to start shooting people".

Sometimes I do wonder if the endgame ain't going to be civil war trying to
fight oppression.

