For over a decade, there’s been a persistent claim on social media, in various news outlets, and from civil liberties organizations that people unwittingly commit as many as three federal crimes per day. The idea traces back to Harvey Silverglate’s book Three Felonies a Day: How the Feds Target the Innocent.
Is it true? Could we all be prosecuted as felons tomorrow? FindLaw takes a look.
More Rhetorical Than Statistical
The answer is very hard to determine with precision. There is no rigorous empirical study showing that the average American actually commits three felonies per day.
The entire idea behind Silverglate’s book is that prosecutors can pick and choose when to investigate and charge for crimes, meaning that no one could know how many actual crimes an average person commits. The argument is that anyone can be targeted if the feds choose for any number of reasons.
The book can be partially summarized as a critique of three things:
- Overcriminalization: Both the United States Code and the Code of Federal Regulations are massive. Some language can be vague, which could lead federal prosecutors to argue that behavior that an ordinary professional American wouldn’t think twice about is actually a federal crime. (As one example, sharing your Netflix password could, theoretically, violate federal law).
- Prosecutorial leverage: Due to the number of crimes and regulations, prosecutors can invoke serious crimes to gain leverage in plea bargaining or gain cooperation in federal investigations.
- Due process: Because some of these purported crimes would be committed without knowledge, does it violate due process? Can Americans reasonably be expected to follow all federal law when it is so expansive? Critics argue that some statutes are drafted broadly and rely on undefined terms, while others downplay or soften intent requirements, making it easier to charge for marginal conduct.
Is There Something to These Critiques?
Whether you agree with Silverglate’s underlying propositions for the book is a matter of opinion. However, critiques of overcriminalization and the leverage federal prosecutors have over criminal defendants are certainly widespread and supportable positions to take.
It is also objectively true that federal criminal laws and regulations have expanded far beyond the traditional core of criminal law most of us think of, such as burglary, kidnapping, or embezzlement. Federal law includes thousands of technical, regulatory, and record‑keeping offenses.
Even if you may not be committing three felonies per day, U.S. criminal law is broad enough that ordinary conduct can sometimes be framed as a crime.
But …
The “three felonies per day” bromide may be misleading in some contexts. And the premise was never that Americans commit violent crimes or serious property crimes to that great an extent.
There are a couple of points to note in response to the claim that we’re all violating federal law multiple times per day:
- The claim usually invokes white-collar crimes and federal regulatory law. Claiming that “ordinary” Americans commit up to three felonies a day may be a stretch, and federal regulations probably say more about the complexity of corporate law than about the daily lives of most people.
- There is a big difference between conduct that a very aggressive reading of the law could theoretically deem criminal and conduct that law enforcement will realistically investigate, charge, and lead to criminal penalties. People have the right to a trial, and it wouldn’t necessarily be easy for federal prosecutors to turn everyday behavior into a conviction.
Sharing your Netflix password is a good example. The Computer Fraud and Abuse Act (CFAA) prohibits certain unauthorized access to protected computers. Theoretically, an aggressive reading of the CFAA could treat certain types of password sharing as “unauthorized access,” but courts have increasingly narrowed how far that language can stretch, and no one has ever been charged — let alone convicted — for sharing a personal streaming password.
Some have also argued that promoting the idea that everyone is a felon (in the context of federal regulations) risks fatalism and reduces the incentive to examine criminal statutes individually and make pragmatic revisions. It can also take the focus off overcriminalization in other contexts, such as drug crimes.
Not So Much ‘Myth or Fact’ as Conversation Starter
So, is it “wrong” to say Americans commit three federal crimes per day? Not necessarily, but it shouldn’t be taken as a fact. According to USA Facts, about 0.35% of people are convicted of violent crimes yearly, while the property crime conviction rate is around 1.8%.
Instead, it’s an argument against unnecessary or burdensome regulations and the power federal authorities have in federal criminal cases. You are free to agree or disagree with that proposition.
