Making Business a Crime - WSJ.com

re: Harvey Silverglate: "...In the case of Bear, the feds have a particular incentive to indict. Doing so would shift attention away from the government's role in the current economic crisis and provide a satisfactory scapegoat. Such scapegoating is one of the few areas of American political life where bipartisanship is all the rage. The Democratically controlled House Oversight and Government Reform Committee and Senate Finance Committee both indicated interest in holding hearings, and the Senate Banking Committee held widely publicized hearings on April 3. /That the feds can even contemplate making a criminal case out of a beleaguered CEO's attempts to restore investor and client confidence may seem absurd. But such a theory of prosecution is not too far from what the feds increasingly have been doing since the mid-1980s to all segments of the business community – all without bothering to get Congress or various administrative agencies to enact statutes and regulations specifying what conduct will henceforth be deemed criminal. /These creative theories rarely get tested in the courts, because federal criminal sentences are so draconian that the overwhelming majority of defendants – including those who have committed no crime – enter into plea bargains. Thus, the federal prosecutor's ability to indict the proverbial ham sandwich readily leads to guilty findings without appellate review. Even those cases that make it to an appellate court often get affirmed by a judiciary that is increasingly complicit in the DOJ's law-as-silly-putty approach..."...