4 ms·

My read on that anecdote wasn't that the author was implying it wasn't criminal, but rather that he was constructing a narrative that the average reader could i

by CPLX 10y ago

My read on that anecdote wasn't that the author was implying it wasn't criminal, but rather that he was constructing a narrative that the average reader could identify with. Most people don't consider themselves criminals, but most people could probably imagine finding themselves in the situation described.

tptacek 10y ago
Yeah, I get that part, and I agree with you that most people in that situation would not consider themselves a criminal. My point is simply that they would in fact be criminals. It would be a miscarriage of justice (perhaps a small one) if there were no consequences for it.
- deleted 10y ago
  [deleted]
- wfo 10y ago
  The article also touches on the case where the person is not legally qualified to understand that what they have done is criminal. Or even to understand that what the company is doing is criminal. Unfortunately it's a smaller part in the article and I think it makes a stronger case. What makes an even stronger case is that you can be prosecuted not only without wrongdoing but without any knowledge of wrongdoing. A better case is: you are a healthcare worker. A federal agent asks you about your ex-employer. You always had a bad feeling about that company but you put in your 40 hours for your paycheck and kids' health insurance. Perfectly willing to help the investigation, you answer truthfully. You are asked about a co-worker you slept with after you had met your girlfriend, but before you started dating. Your girlfriend is in the room. Thinking it doesn't matter and not wanting to discuss it with a stranger in front of your girlfriend, you lie. Turns out the co-worker was involved. If the prosecutor decides he doesn't like you, congratulations you are now a federal felon. You don't even need a fun story about a personal relationship: say you misremember something. Or someone else does, and contradicts your truthful story but the feds think you're the one who's lying. Also I'm not sure the label "criminal" is a useful one. It's almost certainly the case that every adult US citizen is a criminal. They simply haven't been caught yet. Every modern US president has admitted in public to being a criminal (drugs). The expanse of laws is so vast, vague, complex, interpretable and arbitrary it's impossible to not break one. If there were consequences for every lawbreaking act, everyone would be in jail and there would be no-one left to prosecute or to do the prosecuting.
  - tptacek 10y ago
    I'm not sure I follow your example but I'm sure it's better than the one given in the article, where an employee knowingly and deliberately facilitates fraud, begrudgingly, in order to collect a paycheck. I agree that the labels aren't helpful, but it's vitally important to society that employees don't kid themselves about their responsibility (and culpability). Many employees are paid and treated abusively by their employers. Nonetheless, they cannot allow themselves to become instruments of crimes.
  - jdmichal 10y ago
    > You don't even need a fun story about a personal relationship: say you misremember something. To be fair, the statute does say you must knowingly and willingly be lying. Theoretically, that would be on the feds to prove. Of course, I don't think it's possible to prove whether someone knows something. But if they can prove that you at one time did know, or with a perfect memory should have known... I don't know how that works. Would it be a coin flip at that point whether the jury would believe that you simply "misremembered"?
    - vkou 10y ago
      They could probably find Billy, who: 1. Worked with you. 2. Is neck-deep in the criminal enterprise. 3. Is testifying for the promise of leniency of immunity. 4. And is quite happy to throw the CEO, the CFO, and, since the FBI asked him about your name, you under the bus. Regardless of whether or not his claims are true, he will be happy to testify that yes, you absolutely knew about the criminality, because you discussed it with him at lunch, and did nothing about it. This may, or may not be true. He may or may not have misremembered this conversation. He may be trying to save his ass. Either way, it's your word against his, and the prosecutor, who pleads to the jury that there is no possible way you didn't know about your involvement. You may well be found innocent, but you never want to put yourself in this position. Talking to the police is just giving them more rope to try to hang you with.
- xiaoma 10y ago
  That's a good point. However it's also worthwhile to consider that you are a criminal and so is pretty much every single adult US citizen. The massive expansion in criminal code over the past 50 years has ensured that crime is very commonplace and that enforcement rates are very low. Harvey Silverglate, a Harvard law grad who works as an attorney, estimates the average American commits three felonies per day. He published an entire book on the topic[1]. The number is probably a lot higher for people who have built or served as directors of a company. 1) http://thinkaboutnow.com/2016/07/average-americans-commit-3-felonies-a-day/ http://thinkaboutnow.com/2016/07/average-americans-commit-3-...
  - fjdlwlv 10y ago
    That's a clickbait book title, not an academic study. The book cites examples of prosecutorial overreach, not all of which obtained convictions. And the examples tend to the arcane, like importing food, not activities most people engage in. The most commonly commotted one is lying to an employer to claim a paid sick today... And frankly it's unclear to me why people thing that's acceptable, but taking $100 from a convenient store cash register is not.
    - xiaoma 10y ago
      > "And the examples tend to the arcane, like importing food, not activities most people engage in." Another common one is people borrowing parents from their parents to make a down payment on a house. Lots of people do it, but the sentence for using such a loan and not disclosing it is 30 years. This particular violation is referred to as a "head shot" by investigators looking for something with which to nail a suspect. http://davidsimon.com/kwame-brown-another-federal-case-another-head-shot/ http://davidsimon.com/kwame-brown-another-federal-case-anoth...
      - tptacek 10y ago
        The sentence isn't 30 years. The maximum sentence, assuming all the guideline accelerators are met, might be. In reality, the sentencing guidelines --- which if not followed make the sentence at least appealable --- for this probably result in probation for a first-time felon. This doesn't detract from your point! Any felony conviction is a nightmare for someone just trying to build up a down payment for a house! But the way we talk about sentencing needs to be more sophisticated.
- Beltiras 10y ago
  Innocent till proven guilty. You are a criminal once a court has found you guilty.

by CPLX 10y ago

tptacek 10y ago

Yeah, I get that part, and I agree with you that most people in that situation would not consider themselves a criminal. My point is simply that they would in fact be criminals. It would be a miscarriage of justice (perhaps a small one) if there were no consequences for it.

deleted 10y ago
[deleted]
wfo 10y ago
The article also touches on the case where the person is not legally qualified to understand that what they have done is criminal. Or even to understand that what the company is doing is criminal. Unfortunately it's a smaller part in the article and I think it makes a stronger case. What makes an even stronger case is that you can be prosecuted not only without wrongdoing but without any knowledge of wrongdoing. A better case is: you are a healthcare worker. A federal agent asks you about your ex-employer. You always had a bad feeling about that company but you put in your 40 hours for your paycheck and kids' health insurance. Perfectly willing to help the investigation, you answer truthfully. You are asked about a co-worker you slept with after you had met your girlfriend, but before you started dating. Your girlfriend is in the room. Thinking it doesn't matter and not wanting to discuss it with a stranger in front of your girlfriend, you lie. Turns out the co-worker was involved. If the prosecutor decides he doesn't like you, congratulations you are now a federal felon. You don't even need a fun story about a personal relationship: say you misremember something. Or someone else does, and contradicts your truthful story but the feds think you're the one who's lying. Also I'm not sure the label "criminal" is a useful one. It's almost certainly the case that every adult US citizen is a criminal. They simply haven't been caught yet. Every modern US president has admitted in public to being a criminal (drugs). The expanse of laws is so vast, vague, complex, interpretable and arbitrary it's impossible to not break one. If there were consequences for every lawbreaking act, everyone would be in jail and there would be no-one left to prosecute or to do the prosecuting.
- tptacek 10y ago
  I'm not sure I follow your example but I'm sure it's better than the one given in the article, where an employee knowingly and deliberately facilitates fraud, begrudgingly, in order to collect a paycheck. I agree that the labels aren't helpful, but it's vitally important to society that employees don't kid themselves about their responsibility (and culpability). Many employees are paid and treated abusively by their employers. Nonetheless, they cannot allow themselves to become instruments of crimes.
- jdmichal 10y ago
  > You don't even need a fun story about a personal relationship: say you misremember something. To be fair, the statute does say you must knowingly and willingly be lying. Theoretically, that would be on the feds to prove. Of course, I don't think it's possible to prove whether someone knows something. But if they can prove that you at one time did know, or with a perfect memory should have known... I don't know how that works. Would it be a coin flip at that point whether the jury would believe that you simply "misremembered"?
  - vkou 10y ago
    They could probably find Billy, who: 1. Worked with you. 2. Is neck-deep in the criminal enterprise. 3. Is testifying for the promise of leniency of immunity. 4. And is quite happy to throw the CEO, the CFO, and, since the FBI asked him about your name, you under the bus. Regardless of whether or not his claims are true, he will be happy to testify that yes, you absolutely knew about the criminality, because you discussed it with him at lunch, and did nothing about it. This may, or may not be true. He may or may not have misremembered this conversation. He may be trying to save his ass. Either way, it's your word against his, and the prosecutor, who pleads to the jury that there is no possible way you didn't know about your involvement. You may well be found innocent, but you never want to put yourself in this position. Talking to the police is just giving them more rope to try to hang you with.
xiaoma 10y ago
That's a good point. However it's also worthwhile to consider that you are a criminal and so is pretty much every single adult US citizen. The massive expansion in criminal code over the past 50 years has ensured that crime is very commonplace and that enforcement rates are very low. Harvey Silverglate, a Harvard law grad who works as an attorney, estimates the average American commits three felonies per day. He published an entire book on the topic[1]. The number is probably a lot higher for people who have built or served as directors of a company. 1) http://thinkaboutnow.com/2016/07/average-americans-commit-3-felonies-a-day/ http://thinkaboutnow.com/2016/07/average-americans-commit-3-...
- fjdlwlv 10y ago
  That's a clickbait book title, not an academic study. The book cites examples of prosecutorial overreach, not all of which obtained convictions. And the examples tend to the arcane, like importing food, not activities most people engage in. The most commonly commotted one is lying to an employer to claim a paid sick today... And frankly it's unclear to me why people thing that's acceptable, but taking $100 from a convenient store cash register is not.
  - xiaoma 10y ago
    > "And the examples tend to the arcane, like importing food, not activities most people engage in." Another common one is people borrowing parents from their parents to make a down payment on a house. Lots of people do it, but the sentence for using such a loan and not disclosing it is 30 years. This particular violation is referred to as a "head shot" by investigators looking for something with which to nail a suspect. http://davidsimon.com/kwame-brown-another-federal-case-another-head-shot/ http://davidsimon.com/kwame-brown-another-federal-case-anoth...
    - tptacek 10y ago
      The sentence isn't 30 years. The maximum sentence, assuming all the guideline accelerators are met, might be. In reality, the sentencing guidelines --- which if not followed make the sentence at least appealable --- for this probably result in probation for a first-time felon. This doesn't detract from your point! Any felony conviction is a nightmare for someone just trying to build up a down payment for a house! But the way we talk about sentencing needs to be more sophisticated.
Beltiras 10y ago
Innocent till proven guilty. You are a criminal once a court has found you guilty.