Tag: harvey silverglate

Department of Education SWAT Raid for Unpaid Student Loans

Department of Education officers employed a SWAT team because of unpaid student loans. I am not making this up:

Kenneth Wright does not have a criminal record and he had no reason to believe a S.W.A.T team would be breaking down his door at 6 a.m. on Tuesday…

As it turned out, the person law enforcement was looking for was not there - Wright’s estranged wife.

“They put me in handcuffs in that hot patrol car for six hours, traumatizing my kids,” Wright said.

Wright said he later went to the mayor and Stockton Police Department, but the City of Stockton had nothing to do with Wright’s search warrant.

The U.S. Department of Education issued the search and called in the S.W.A.T for his wife’s defaulted student loans.

This, along with the Jose Guerena case, demonstrates how the militarization of police terminology and tactics is incompatible with a free society. Police officers aren’t “operators” like Green Berets or Navy SEALs.

This is just one more reason to abolish the Department of Education and oppose police militarization and federal overcriminalization.

More on the Siobhan Reynolds Case

Building on Ilya Shapiro’s post on the sealed grand jury proceedings against Siobhan Reynolds, founder of the Pain Relief Network, and the sealed Reason Foundation/Institute for Justice amicus brief, here is some more background on the Wichita witch hunt:

The U.S. Attorney’s Office in Wichita, Kansas, indicted physician Stephen Schneider and his wife, Linda, a nurse, for illegal drug trafficking in December 2007. Reynolds found an eerie parallel between Schneider’s case and the prosecution that denied her husband pain medication, so she took action. Her public relations campaign on behalf of Dr. Schneider so annoyed Assistant U.S. Attorney Tanya Treadway that Treadway sought a gag order to bar Reynolds’s advocacy. The presiding judge denied the gag order.

When the judge denied Treadway’s gag order, Treadway instead subpoenaed Reynolds for records related to Reynolds’s PR campaign against the prosecution of the Scheiders. Ms. Reynolds resisted the subpoena and tried to challenge it in court, but the $200 daily fine intended to ensure compliance with the subpoena has left Reynolds pretty much bankrupt.

This case represents the worst of government excesses in federal overcriminalization and overzealous prosecution. The federal government continues to treat doctors as drug dealers, as Ronald Libby points out in this Cato policy analysis. The grand jury, intended as a check on prosecutorial power, instead acts as an inquisitorial bulldozer that enhances the power of the government. My colleague Tim Lynch examined this phenomenon in his policy analysis A Grand Façade: How the Grand Jury Was Captured by Government.

Cato Adjunct Scholar Harvey Silverglate examined the case of Dr. William Hurwitz in his book, Three Felonies a Day: How the Feds Target the Innocent. The DEA turned a few of Hurwitz’s patients into informants and prosecuted Hurwitz. When Hurwitz shuttered his practice, two of his patients killed themselves because they could not get prescriptions for necessary painkillers. Siobhan Reynolds’s husband, another of Hurwitz’s patients, could not get essential medication and died of a brain hemorrhage, likely brought on by the blood pressure build-up from years of untreated pain.

Ninja bureaucrats continue to treat doctors that prescribe painkillers as tactical threats on par with terrorist safehouses. When the DEA raided the office of Dr. Cecil Knox in 2002, one clinic worker “thought she and her husband, who was helping her in the office that day, would be shot. She looked on in horror as an agent put a gun to his head and ordered, ‘Get off the phone! Now!’” Radley Balko chronicles this unfortunate trend in Overkill: The Rise of Paramilitary Police Raids in America, and the Raidmap has a separate category for unnecessary raids on doctors and sick people (sorted at the link).

Prosecutorial Misconduct

A federal prosecutor’s misconduct tilted the scales of justice against Antonio Lyons, an Orlando businessman. Lyons served three years in prison before his attorney discovered statements from a witness that differed from the testimony given at trial. That was just the tip of the iceberg.

For more than a week in 2001, the jurors listened to one witness after another, almost all of them prison inmates, describe how Lyons had sold them packages of cocaine. One said that Lyons, who ran clothing shops and nightclubs around Orlando, tried to hire him to kill two drug dealers.

But the federal prosecutors handling the case did not let the jury hear all the facts.

Instead, the prosecutors covered up evidence that could have discredited many of Lyons’ accusers. They never disclosed that a convict who claimed to have purchased hundreds of pounds of cocaine from Lyons struggled to identify his photograph. And they hid the fact that prosecutors had promised to let others out of prison early in exchange for their cooperation.

An investigative project by USA Today documented 201 cases from across the nation in which federal judges found that prosecutors broke the rules. It includes a database and interactive map chronicling prosecutorial misconduct. Read the whole thing.

Check out Tim Lynch’s In the Name of Justice: Leading Experts Reexamine the Classic Article “The Aims of the Criminal Law” and Harvey Silverglate’s Three Felonies a Day: How the Feds Target the Innocent for more on the criminal justice system.

Estrada and Taylor on Kagan

Kagan gets an endorsement from superstar conservative appellate litigator and Bush II appellate nominee (also my old boss) Miguel Estrada here (see last paragraph).

Plus, Stuart Taylor says Kagan’s nomination could mean a more conservative Court:

Commentators on the left … complain that Kagan never compiled much of a record of aggressively championing liberal causes during her years as a law professor. Some say she was too friendly as dean of Harvard Law School to conservatives and did not recruit as many women and minorities for the faculty as diversitycrats desired.

Speaking as a moderate independent, I like everything about Kagan that the left dislikes. To borrow from my friend Harvey Silverglate, a leading Boston lawyer who champions both civil liberties and an old-fashioned liberal’s brand of political incorrectness, ‘they want people who look different but think alike.’

Kagan seems to be a woman who thinks for herself.

Taylor also highlights what many libertarians will find most troubling about her record (other than strong hints of her lack of sympathy, albeit predictable for a Democratic nominee, with the litigation interests of the business community): her apparent endorsement of the Bush administration’s legal framework for detention of enemy combatants.

A Civil Liberties Roundup

Here are some interesting new items on the web:

  • Cato Senior Fellow Nat Hentoff is interviewed by John W. Whitehead of the Rutherford Institute.  Nat says “Obama has little, if any, principles except to aggrandize and make himself more and more important.”  And “Obama is possibly the most dangerous and destructive president we have ever had.”  Go here for the full interview.
  • Cato adjunct scholar Harvey Silverglate is blogging this week over at the Volokh Conspiracy on his new book, Three Felonies a Day.
  •  Cato Adjunct Scholar Marie Gryphon, who is also a Senior Fellow with the Manhattan Institute, has just put out a new paper, It’s a Crime: Flaws in Federal Statutes That Punish Regular Businesspeople.
  • Cato Media Fellow Radley Balko takes a look at the pathetic machinations in the Chicago Police Department.  Reminds me of the proud boast from a patronage worker in the political machine: “Chicago ain’t ready for reform!”

Good stuff here.  For more Cato scholarship, go here.

Are You a Criminal? Maybe You Are and Don’t Know It

Yesterday, Michael Dreeben, the attorney representing the U.S. government, tried to defend the controversial “honest services” statute from a constitutional challenge in front of the Supreme Court.  When Dreeben informed the Court that the feds have essentially criminalized any ethical lapse in the workplace, Justice Breyer exclaimed,

[T]here are 150 million workers in the United States.  I think possibly 140 [million] of them flunk your test.

There it is.  Some of us have been trying to draw more attention to the dangerous trend of overcriminalization.  Judge Alex Kozinski co-authored an article in my book entitled “You’re (Probably) a Federal Criminal.”  And Cato adjunct scholar, Harvey Silverglate, calls his new book, Three Felonies a Day to stress the fact that the average professional unknowingly violates the federal criminal law several times each day (at least in the opinion of federal prosecutors).  Not many people want to discuss that pernicious reality. To the extent defenders of big government address the problem at all, they’ve tried to write it all off as the rhetoric of a few libertarian lawyers.  Given yesterday’s back-and-forth at the High Court, it is going to be much much harder to make that sort of claim.

For more on this subject, go here, here,  and here.

Federal Cyberbullying Law: ‘Worth a Try’?

On Wednesday the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on the proposed cyberbullying legislation I mentioned in this post. Cato adjunct scholar Harvey Silverglate testified at the hearing, and his written testimony is available here.

Silverglate highlighted the pernicious potential of this law, which sits at the nexus of his two books. The Shadow University highlights how speech codes have impaired free expression on college campuses nationwide. Three Felonies a Day shows how federal criminal law has expanded to define various innocuous activities as federal felonies. Put the two together and a federal cyberbullying law is what you get. Silverglate’s recent podcast is available here, and he recently appeared at a Cato book forum.

The proposed cyberbullying law would impose a federal felony (two-year maximum sentence) upon anyone who uses electronic means to communicate a message intended to “coerce, intimidate, harass, or cause substantial emotional distress to a person.” Under this law, rude emails, texts, or blog posts can all subject someone to hard time as long as a receiving party alleges “substantial emotional distress.”

The Committee expressed constitutional concerns over this proposal. Chairman Bobby Scott (D-VA) pointed out the potential chilling effect that this could have on lawful but provocative speech. Ranking Member Louie Gohmert (R-TX) highlighted the unintended consequences that this bill could have — though intended to protect teens from online bullying, Gohmert said it could prompt prosecution of political opponents who had posted offensive things about him on a blog. There is no limiting language in the statute to prevent such a result. Gohmert said that while this would be satisfying, it would also be unconstitutional and among the reasons not to endorse the legislation.

Other problems plague the proposed statute. A Congressional Research Service report highlights some of the constitutional issues, but the discussion at the hearing brought others to the fore. States that have passed their own cyberbullying sanctions have overwhelmingly done so with misdemeanor, not felony, charges. The felony problem is compounded by the fact that this is a statute intended to apply largely to the conduct of teenagers. A felony charge is both excessive and complicated by the fact that there are no long-term federal juvenile detention facilities — they are referred to state facilities instead.

University of Virginia law professor (and former university president) Robert O’Neil said, in spite of all those concerns, that the proposed law could be tweaked to avoid the feared demerits. In his written testimony, O’Neil notes the difference between offensive political speech and “true threats,” the latter not receiving constitutional protection. He proposes using Intentional Infliction of Emotional Distress (IIED), a traditional state tort claim, as the legal basis for justifying the proposed law. This is an odd foundation for a federal criminal law — no state defines IIED as a crime, and many states require a showing of physical harm for a plaintiff to recover. When Rep. Gohmert pressed him on this, O’Neil said that in spite of the lack of legal foundation for a federal crime based on IIED, it was “worth a try.”

No thanks. Let’s not try. Let’s keep our liberties intact and not do further damage to the law.