FIRE is excited to announce that FIRE Co-founder Harvey Silverglate is guest-blogging on the popular legal blog The Volokh Conspiracy all this week. In his first blog entry, posted yesterday, Harvey weighs in on the dangers presented by vague federal criminal statutes, arguing that "[b]ecause of the vague terminology increasingly used in the ever-expanding federal criminal code, combined with the erosion of intent as a requirement for conduct to be considered prosecutable, the average citizen can easily commit several felonies in any given day." Harvey has considerable knowledge on the topic, having recently published Three Felonies a Day: How the Feds Target the Innocent. He goes on to write:
What about "due process of law" guarantees provided under the Fifth Amendment and its ancillary "void for vagueness" doctrine, which protects citizens from being prosecuted with unclear laws that they cannot be expected to understand? This salutary doctrine was famously invoked during the Civil Rights Era, when state convictions were struck down because malleable statutes were selectively enforced against protesters. The Supreme Court recognized, in one case, that prohibiting protests "near" a courthouse gives government officials too much latitude in determining what is, and what is not, legal. Many such state convictions were voided by federal courts.
But in the aftermath of the modern-day explosion of federal statutes and regulations covering almost every area of American life, these doctrines have not been applied with equal rigor. In a system that operates like this, more and more innocent conduct gets swept into the category of arguable crime—not by clear legislation, not by careful and honest court examination, but by assumption and acquiescence.
Be sure to check out The Volokh Conspiracy each day this week to read Harvey’s latest blog post in his week-long series.